The Gazette 1967/71

A GLIMPSE AT THE ADMINISTRATION OF LAW IN THE FEDERAL REPUBLIC OF GERMANY by BRENDAN BYRNE, Solicitor Although German political integration was achieved in 1871, the unification of its laws came later. It was not until 1900 that the codification of its laws was completed. By that time, Germany had as comprehensive a codification as the "cinq codes" of France and the "cinque codici" of Italy. These German codes are known as the Civil Code, the Code of Civil Procedure, the Criminal Code, the Code of Criminal Procedure and the Commer cial Code. The Civil Code was the last to emerge and is regarded as something of an achievement. Much of the legal system of Germany (including its codes) has been adopted in countries as far apart and as different as Japan, Austria, Turkey and Brazil. The effect of these comprehensive codes was to make the former German legal history almost irre levant. A new literature came into being and "by a stroke of the pen entire law libraries were turned into waste paper". The constitution of the Federal Republic is contained in the Basic Law (Grundgesetz) and all questions of interpretation are reserved to the Bundesverfassungsgericht (Federal Constitutional Court). This court is exceptional in Germany in that the majority of the court does not consist of the career judges but of eminent lawyers from all walks of life. The Bundesverfassungsgericht is regarded by many Germans as the most important court in the Federal Republic, since it is the custodian of constitutional rights and individual liberties. Its nine judges are elected by the Federal Parliament and remain on the bench for a term of eight years. Since 1968, judges of the Constitu tional Court may deliver minority judgments—a most important innovation in German juris prudence. The Courts Western Germany is a federation of eleven lander (provinces), i.e. Bavaria, Baden-Wurtem- berg, etc., each with its own legislature and system of courts as in the United States. All courts of first instance and courts of appeal are Land Courts. There is a right of appeal from the Land Courts to the Bundesgerichtshof (Federal Appeal Court). 109

political integration, which will, among other things, create responsible European institutions. Dr. Maes said that these institutions would include a more powerful central authority with a much more stronger parliament elected. These, he added, were aspects well worth remembering "and, perhaps, too little attention has been paid to them in the U.K." Later in his paper, Dr. Maes said that the Euro pean Community's attitude to agricultural mar keting arrangements had gone through drastic reappraisal in the last two years and there was still an amount of uncertainty on this subject in the Community. It should also be remembered that the Common Agricultural Policy was in the process of having to undergo a profound re-exam ination. It seemed to him that this unhealthy state of affairs could be partly attributed to the lack of co-ordinated and organised marketing structures in the Community. Mr. Victor Cosse, of Brussels, said that the Treaty of Rome emphasised in its preamble the desire of assuring stability in expansion, balance in exchanges and loyalty in competition. For this Article 3 of the Treaty of Rome provides for the abolition of customs duties and quantitive restric tions at the arrival and departure of goods and the abolition of obstacles to the free movement of travellers, of services and of capital between member States. Mr. Cosse said that the elimination of quanti tive restrictions between member-States was the subject of Chapter 11 of Title 1 of the Treaty of Rome. It concerned Articles 30 to 37. "Article 37, in fact, speaks explicitly of national mono polies and foresees that at the end of the transi tory period national monopolies shall be arranged so as to exclude all discrimination between nati onals of member-States in the field of supplies and outlets. "Paragraph 4 of Article 37 specifies that 'in a commercial monopoly which includes a regulation designed to facilitate the outflow or valorisation of agricultural products, it is advisable, in the appli cation of the rules of this article, to assure equiva lent guarantees for the employment and standard of living for the producers concerned, taking account of the pace of the possible adjustments and necessary specialisations'."

[from The Irish Times, 3 and 5 October 1970]