Das europäisierte deutsche Rechtsschutzkonzept

Abstract

The Europeanized German Legal Protection Concept

The doctrine of individual public rights, which is a cornerstone of German (Administrative) Law, is highly dependent on the two fundamental processes of change in German Public Law since 1949: constitutionalisation and Europeanisation. Since 1949, the doctrine of individual public rights has experienced challenges both from above (constitutional law) and from outside (EU law). Both constitutionalisation and Europeanisation required more than mere doctrinal adaption. More and more statutes favour individuals, thus leading to a quantitative increase of individual public rights. Also qualitatively new ideas proliferate in administrative law (such as fundamental rights and wide access to justice). It is not any longer the autonomous logic of administrative law which is decisive for such new ideas; rather other layers of law determine the shape of individual public rights (constitutional law and EU law).

As a result, the doctrine of individual public rights is “concretised constitutional law”: administrative law spells out what constitutional subjectivity really means. At the same time, the doctrine of individual public rights perfectly illustrates the conjoint development of EU law and domestic law over recent decades. This article analyses the parallels between constitutionalisation and Europeanisation and their consequences for the traditional German doctrine of individual public rights.