IV. Sustainability in German constitutional law
Having outlined the different fields of activity of statutory legislation and politics in Germany in which the notion of sustainability is pursued, the prior-ranking and thus more important constitutional law shall be addressed in the following paragraphs.
1. The significance of laying down sustainability in constitutional law
The constitutional law constitutes the basic relation between citizen and State and its organs regulating basic mutual rights and duties. It is also providing for the repartition of competences and a various other limitations of the State organs’ power. Inherent to the Constitution is that it conveys a system of values that shall prevail within its ambit.
The special significance of the Constitution as source of law arises from the very fact that it is the framework in which every statutory legislation takes place. It provides the State’s cornerstones and rules that cannot be infringed by any public authority; any infringement of a constitutional provision would cause automatic invalidity of the infringing measure. Constitutional provisions have a heavier weight than statutory provisions not only because of their formally prior rank, but also because of their higher democratic legitimation: The initial adoption of the Basic Law of Germany in 1949 was effected by an even vaster majority than it would have been required according to its section 144, and regarding to amendments to the Constitution, section 79 demands for a two-thirds majority in both federal legislative organs, [45]Bundestag and Bundesrat. [46] This premises a broad consensus in society, which means basically, an agreement between the major political parties. If such consensus is reached, the result of a constitutional amendment is not only a higher appreciation of the envisaged contents of the legal norm, but also a great resistance to changing majorities in parliament and zeitgeist, for whatever reasons the changes might occur. So, along general lines, to effectively determine the general, more enduring, hardly alterable policies of the State, it should be tried to implement them on constitutional level. Moreover, due to the requirement of that broad consensus, the process of a constitutional amendment normally follows up a circumstantial debate in the media and society which fosters a (further) increase of the overall awareness about a topic. This would be helpful. So, why not amend the Constitution in the pursuit of sustainability? To answer this, it has to be taken stock, previously, of the extent of this concept’s current constitutional protection.
2. Sustainability-related regulations
The concept of sustainability is not restricted to certain areas of life, but it generally seeks to maintain values from today for the future without paralysing present social and economic needs excessively. There is, as was already stated, no explicit mention of such a commitment in the German Basic Law. [47] However, there are some rules that cover the contents of the notion in part: Basically, there is the brief provision of section 20a of the Basic Law about environment preservation which was adopted in 1994. Furthermore, there is the principle of the social welfare state in section 20, and there are the constitutional rules concerning the economy and those governing the public finances. Finally, the repartition of legislative competences in the relevant areas shall be of interest.
In the beginning of the Basic Law, there is a catalogue of fundamental rights, and it is regulated that none of the fundamental rights may be questioned in its essential content by public authority acts, section 19 para. 2 of the Basic Law. Yet, the catalogue makes no statement on rights and interests of future bearers of rights, for they focus basically on presently living human beings as bearers of rights. Neither does the Basic Law grant a fundamental right against the State to presently living people that their environment be preserved (like it is the case in other countries’ Constitutions), [48] not even in combination with proper obligations for the citizen to protect it (like it is the legal situation for example in Brazil [49] and Portugal [50]).
a. Section 20a
Section 20a of the Basic Law reads: "Mindful also of its responsibility towards future generations, the State shall protect the natural bases of life and the animals by legislation and, in accordance with law and justice, by executive and judicial action, within the framework of the constitutional order".
Its very systematic position within the order of the Basic Law makes clear that the creation of a subjective right for the individual was not intended by section 20a: It was laid down directly behind the basic institutional principles of the State, and thus apart from the fundamental rights. Consequently, there is no direct enforceability before the Federal Constitutional Court (the Bundesverfassungsgericht) for the individual. [51] In contrast, the provision was designed as a national policy objective and principle, [52] and therefore it works in a different manner. Its function is to impose a duty on all State organs to permanently consider the protection of the natural bases of life (and since a 2002 amendment the protection of individual animals as well) [53] in every action that they take and in every decision that they make, including the arrangement in procedural law. It has to be observed by all of the State’s powers, no matter whether it is in law-making (in legislature) or when legislation is interpreted (in the executive branch and in the judiciary). It targets only on the State, it is not creating obligations for private persons (just as it does not create subjective rights for them).
The insertion was a clear decision to promote the value "environment" and to align decision-making towards an increased awareness for future generations. But – as it is typical for principles – they do not apply completely without limits. This fact (limitability) is straightened out in the explicit mention of the "framework of the constitutional order" in section 20a. This means that the provision has to be seen in the context of the Constitution’s whole system of values. Limitations are all other provisions of equal (constitutional) rank. When contradictions occur between different values (for example between the ecological and economic or social interests or individual rights), there has to be a balancing of the constitutionally protected values in the particular case, bringing them best possible to a practical concordance and avoiding disproportional impairment. There are, in fact, conflicting values and interests in most decision situations. For exactly this reason, the existence of section 20a of the Basic Law is very welcome; for now, the value of "intergenerational environmental protection" can be included into the judicial consideration as a value of equally high rank to other issues. In other words, wherever judicial decisions have to be made to solve conflicts affecting environmental matters, the latter have got a heavy weight in the appreciation of conflicting values, and therefore, the legal situation for them improved.
"Natural bases of life" is a very far-ranging element of section 20a: The whole environment is meant by it, even if it has been already influenced or artificially remodelled by humans. Therefore, it comprehends air, soil, water (including groundwater), and natural sceneries with all plants, animal species and micro-organisms. [54]
With this provision being in force, the State is obliged to refrain from doing harm to these protected subjects. Additionally, the State is obliged to intervene when any third party is or will be doing such harm. Due to the intergenerational perspective, in every activity, it has to keep in mind long-term consequences and long-term harm. Therefore, it comes close to the above-specified interpretation of the sustainability.
However, an all-embracing commitment to the notion of sustainability for all state activity cannot be gathered from the wording of section 20a; it only concerns the ecological aspects, so environment as "natural", "biological" environment. The social, economic, cultural etc. environment of human being is not included by the notion of environment in section 20a. It was obviously not what the constituent power had in mind in 1994. It is said that section 20a only contains a principle "of ecological sustainability", [55] thus it is meant only area-specific.
b. Social welfare state and economy as contrary values
With regard to the existing social and economic provisions in the Constitution, no reference to sustainability, i.e. to a sustainable exertion, is provided there at all.
It has to be pointed out that the social and economic provisions in the Basic Law represent values that often are quite contrary to the future interests as partly protected in section 20a. They defend basically the interests of the people of today. In certain cases, they may be contrary to each other as well. This demonstrates the triangular relation between these three values, and acts on the three aspects in the sustainability definition that are to be harmonized.
In section 20 para. 1, the Basic Law determines the basic institutional principles for the State structure. It reads: "The Federal Republic of Germany is a democratic and social federal State". This way, the principle of social welfare has been inherent as one of the five most basic principles in German constitutional law for the whole time of the existence of the Basic Law. It is one of the Basic Law’s most important provisions and absolutely unalterable. [56] The Basic Law renounces individual social rights, or even a proper chapter on the State’s social order. [57] Instead, it chooses the way of a brief "national objective clause", thus technically an analogous construction to what was observed above with section 20a. Because the full meaning of the principle is attached to only one word in the Constitution, its contents and outline have been controversial in detail. [58] In general, it can be summarized that the principle serves for the State to take care of social security and balance in order to keep the (present-day) citizen factually enabled to exercise his granted freedoms. [59]
As to the treatment of the economy, the Basic Law is even more taciturn which means, for a start, that the State leaves freedom in this respect. [60] Unlike for example the Brazilian Federal Constitution, [61] there is no separate chapter putting up rules for the economy where the notion of sustainability could be incorporated to manifest an effect. However, particularly four provisions outline the system of social market economy that Germany adheres to: the guarantee of privat property (section 14), the freedom of profession (section 12), the general freedom of action (section 2) and the afore-mentioned principle of the social welfare State (section 20). Freedom is granted there, but at the same time, a limitation by means of posterior statutory legislation is made possible constitutionally. The limitation of freedom is located within the fundamental right clauses and amplified by the principle of the social welfare state. Section 20a serves as a limitation to the economic freedoms likewise. So to impede total economic liberalism, there are social and environmental restraints and responsibilities, which the reservations for statutory legislation allow for. These reservations can be used by the legislator and administration to enjoin obligations to private persons (natural persons as well as large-scale enterprises) and their economic activity, for example, as to sustainable development, prohibiting certain industrial emissions. These provisions show that in every measure and decision, a proportionate balance [62] is to be found between the (sometimes contrary) individual freedom and the interests of society on the whole and – as the case may be – the interest of future generations in a preserved environment.
However, for lack of a general sustainability clause, it is not made sure constitutionally that the interests of future generations on the whole are to be considered sufficiently.
c. Rules governing public finances
Financial scope is a prerequisite for future generations’ freedom in making their own decisions and handling their own problems and challenges. Therefore, there is a close connection between budget politics and sustainability. Suffocating public debt that curtails their possibilities has to be avoided. Regarding the rules governing public finances (sections 104a et seqq. of the Basic Law), there are tools to prevent undue debt in the public budget from being generated. Above all, the State’s borrow must not exceed the sum of investments in a budget (section 115). Yet, there is a wide exception, in fact, when there is supposed to be a "disturbance of the macroeconomic equilibrium", an exceeding borrow is possible. This expression is imprecise and hardly quantifiable, and it can too easily be used as an excuse for high borrows, which is unfavourable, especially since a legal action against it before the Constitutional Court has no further consequences due to time lapse. [63]
With these rules alone, national debt can soar indefinitely when the Government assumes this exception when adopting a budget. There is no sustainability clause in this legal field, which has given reason to criticism. [64] Most recently, in 2009, there has been a constitutional amendment in sec. 109 that strengthened the notion of intergenerational justice, and thus, of sustainability. It was commonly tagged in the media as the "Schuldenbremse" ("debt brake") and basicly contains an assignment to the federal entities not to balance their budgets with loans, "in general", and when taking out a loan, exceptionally, to provide for a repayment plan. The amendment demands conscientiousness on the part of the gouvernment in budget politics, so it clearly improves the situation.
d. Legislative competences
The following aspect is a formal one, i.e. not dealing with the contents of sustainability, but with legislative competence in that field. The Basic Law makes the following dispositions about legislative competence on sustainability-related domains in the federal State: [65] According to section 70, the Länder are generally competent for all legislation except otherwise provided (subsidiary competence). There is an exclusive federal legislative competence in sections 71, 73 no. 14 for nuclear energy. Many domains belong to the concurrent legislative competence which means, basically, that the Länder can legislative only as far as the federation has remained inactive (sections 72, 74). The sustainability-related domains are for example the agricultural production and forestry (no. 17), the protective measures in connection with the marketing of food, drink, and tobacco, essential commodities, feedstuffs, agricultural and forest seeds and seedlings, and protection of plants against diseases and pests, as well as the protection of animals (no. 20), the waste disposal, air pollution control, and noise abatement (no. 24), hunting (no. 28), nature conservation and landscape management (no. 29), and the management of water resources (no. 32). Because the remainder of the environment-related subjects is vested in the Länder competence, there cannot be such thing as a single, all-embracing Environmental Code in statutory legislation, but instead there are plenty of different acts in terms of the various domains provided in sections 70 et seqq. of the Basic Law.
e. Länder
Because the article focusses on federal politics and law, the situation in terms of the Constitutions in the Länder shall not be addressed in detail. Being federated but autonomous entities, the Länder are entitled to autonomous government in terms of section 28 of the Basic Law. [66] In all of the 16 Länder Constitutions, there are provisions as to environmental protection as well, in a variety of different designs, partly as a commitment in the preamble or in a separate state policy objective clause, partly even as a fundamental right. [67] They are, of course, only binding for authorities within the entity.