Sustainability strategies in recent German federal politics and law

Resumo :Este artigo aborda aspectos legais do conceito da sustentabilidade e a forma como é tratado na legislação e política alemã. Discute-se, ainda, até que ponto o conceito faz parte da Constituição alemã e se é recomendável uma emenda a este respeito.

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I. Introduction

The concept of sustainable development was codified in the Declaration of Rio de Janeiro as a consequence of the United Nations Conference on Environment and Development in June 1992, and it has been substantiated, for example in the Agenda 21, the United Nations Framework Convention on Climate Change UNFCCC, the Kyoto Protocol, and the Johannesburg Plan of Implementation. Today, in common understanding on the international level, the concept does not only approach the preservation of the availability of the Earth’s nature resources for subsequent generations at any cost, but beside this ecological aspect, it also includes two other aspects: the economic and the social. Together, the three aspects represent what is referred to as the "triple bottom line". That means that according to the concept, any strategies of preserving the Earth in favour of future generations have to sufficiently take into account the presently living people and their present needs as well. Therefore, a sustainable development comprehends the task of harmonizing and conciliating these three components, which in general are interdependent, which can be contrary, and none of which is supposed to have absolute priority in the first place over the others.

Sustainable development was set as a substantiated objective on the international level. The Rio Declaration, as the principal document, proclaims 27 principles to be pursued in order to achieve sustainability. ^[01] However, the implementation of the objective at a lower level, that means: in the particular polities, is a necessary requirement, ^[02] down to the local level. ^[03] It is needless to say at this point that, due to the obvious depletion of resources and climate change, the imperative for action is undiminished.

This article shall contemplate legal aspects to this issue; in fact, it shall be done here from one national point of view: In Germany, like in many States all over the world, efforts have been made to develop strategies for sustainability. In large part, these strategies are now reflected in statutory legislation where the term of „sustainability" has gradually become more widespread over the past decades, and therefore nowadays jurists have to deal with it and its interpretation more than ever.

After clarifying the contents and meaning of the concept of sustainability in German statutory legislation (below in part II) and pointing out the recent German governmental strategies and their legal reflection (part III), this article shall focus on constitutional law. Although the concept of sustainability does not appear explicitly in the Basic Law, which is the German Constitution, ^[04] it is to be examined how and to what extent the current Constitution contains the essence of sustainability in its provisions. Particularly section 20a of the Basic Law that makes arrangements about the environment shall be of great interest in this context (part IV), as is the debate about a possible constitutional reform in regard to sustainability beyond the existing section 20a (part V).

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II. The interpretation of "sustainability" in German statutory legislation

The term "sustainability" was not invented in 1992 on the Rio Conference, but it has had a history on the national level, in Germany too. It must be noted that there cannot be given one single definition for the term "sustainability" (or the adjective "sustainable") ^[05] that would be generally applicable for the entire German legislation. It still has rather different meanings in different legal contexts. ^[06]

One reason for this finding is that the term has been used in legislation for a long time, having had to fulfill certain purposes in certain fields of law. In some contexts, there is no necessary relation to the objective of preserving the environment and it simply stands for the meaning "long-lasting, considerable". For example, in criminal law, it is used in a negative sense, to qualify offences, describing the damage that was caused to protected values or objects. Only when a damaging behaviour is nachhaltig, it is then considered worth being punished. Such an understanding shall be of no interest for this article.

In other contexts, the term relates to the preservation of resources. There, it targets at the avoidance of the complete consumption of a resource, in order that subsequent generations may be able to enjoy the resource as well as the present generations. Consequently, forestry acts, for example, have been regulating the amount of wood extraction in a certain period of time so that the forest would always be able to recover and could subsist as a permanent resource for the people.

Another reason for the non-uniform interpretation is the gradual overlap by international law. In the course of time, international documents and treaties have been negotiated, and during this process, an international understanding of the concept of sustainability has shaped. The international understanding is wider, as mentioned above, for it takes into account not only the ecological, but also an economic and a social component. So in many cases, there is a deviation from the traditional – narrower – understanding in German law that had ascribed to the term, if any, only an ecology-related content. Meanwhile, in the most recent legislation where the term appears, it is obviously meant to be interpreted in the "enriched", internationally influenced way, according to the "triple bottom line" including social welfare and economic concerns (for example in the federal and state Nature Preserve Acts and in Spatial Planning Acts). Therefore, it is ascertained that in these laws, the approach is not only intergenerational, but also intragenerational.

To sum up, the interpretation always depends on the spirit and purpose and also on the date of enactment of a specific law.

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III. Recent goals and measures in German sustainability politics

These modern statutes concerning sustainable development are the product of the pursuit of sustainability strategies that have come to the politicians’ field of vision more and more intensely. It has been part and parcel of the recent coalition agreements. Recently, on 27^th November 2007, on the occasion of consultations for sustainability strategies, the head of German Government, Federal Chancellor Angela Merkel, is quoted making a commitment to "sustainability as a leading principle in German politics", emphasizing that it is not enough to settle for what has already been accomplished. She continued that, to live well, "we do not necessarily need to consume ever more resources and ever more energy", and that for the development of sustainability strategies, everyone is called upon to contribute because it is not a matter to be imposed and accomplished unilaterally by the Government. ^[07]

Sustainability strategies and policies work in different fields, which demonstrates how the achievement of a sustainable development, in general, is a cross-sectional matter. For this reason, high-ranking secretaries of different ministeries meet regularly in a committee to exchange ideas that could not be implemented in only one ministery by itself. ^[08] In 2009, the Federal Ministries’ Joint Rules of Procedure ^[09] were officially amended to make sure that the long-term effects for sustainable development of any legislative bill are contemplated and exposed in the motivation within the process of law-making. ^[10]

In the following paragraphs the actual and concrete strategies, which have been announced and executed by the Government to obtain and maintain a balance between ecological, social and economic needs, shall be summarized.

To begin with, in April 2001, ^[11] as an organizational measure, a special Sustainability Council ^[12] was established on the initiative of the former Government’s Federal Chancellor Gerhard Schröder, ^[13] and summoned again by his successor Angela Merkel. The Council is pluralistically composed of 15 figures who are renowned in various sectors of public life (members have been the former director of the UNEP, a church representative, a former minister, scientists, presidents of nature conservation organizations, a trade unionist, and other important decision-makers). Its duty is the conception of contributions with regard to the implementation of the national sustainability strategy, especially evaluating and commenting its objectives and measures, and permanently advising the Government. Likewise, the Council is entrusted with the task to specify concrete fields of activity and with the realization of projects ^[14] as well as, in general, with keeping the concern for sustainable development in the public attention. Inter alia, the Sustainability Council has issued recommendations for the increase of the responsibility of commercial enterprises (corporate social responsibility – CSR) ^[15] as one further important approach to be pursued, especially against the background of the necessity to involve society in the quest for sustainable development. ^[16]

It has to be made perfectly clear at this point that the Council’s appointment is not provided for in the Constitution. It is a product of Government’s general policy-making power which was assigned in section 65 of the Basic Law, where discretion (within the framework of the Constitution) is left to the Government about the ways of reaching their legitimate political objectives.

One year later, in April 2002, German Federal Government issued the Sustainability Strategy Paper entitled „Perspektiven für Deutschland". ^[17] It contains ten so-called Management Rules and, most importantly, an overall outline of the areas of politics where measures would have to be taken to create sustainability and to fill the concept with life, as it had been the intention of the Rio de Janeiro Conference in 1992. Furthermore, the Strategy Paper, that is still valid in 2009, contains the dedication to the continuous monitoring of the abidance that is to be documented until today in biennial Progress Reports. ^[18] It also contains the dedication to reevaluating the measures on a regular basis. As a matter of fact, the Sustainability Council has influenced the further development of strategies considerably by critically responding to the Government’s reports. In August 2005, another remarkable document, "Guidepost to Sustainability", that was conceived by the permanent secretaries’ committee (Green Cabinet) was passed by the Federal Cabinet to fill the strategy with more details and the experiences that were made in the meantime. ^[19]

The Government strategy is less a strategy made of single projects than a systematic one, ^[20] that means: principles and goals are envisaged, then measures are determined, then it is reviewed by means of indicators whether these measures have been successful.

The basic thought in these Management Rules is that every generation has to solve their own problems and to refrain from leaving burdens to future generations. When solving those "own problems", the preservation of the environment and the social and economic needs of the today’s people are to be envisaged likewise. For they outline well the scope of the governmental strategy, the Management Rules are quoted here directly: ^[21]

1. Citizens, producers and consumers, economy and trades unions, science, churches and other associations are, with the State, important participants in Sustainable Development. They should participate in public dialogue concerning the model of a programme of Sustainable Development and on their own initiative direct their decisions and initiatives toward these goals.

2. Businesses are responsible for their means of production and the goods they produce. This responsibility includes informing consumers of features of their products relevant to health and the environment, and also of sustainable means of production. The consumer is responsible for choosing the product and for using it in ways which are socially and environmentally acceptable.

3. Renewable natural commodities (such as, for example, timber or fish stocks) will in the long term only be used within a framework which takes account of their regenerability. Non-renewable natural commodities (such as, for example, minerals or fossil fuels) will in the long term only be used within a framework where consideration is given to how their functions can be replaced by other materials or by other forms of fuel. The release of substances or energy will in the long term be no greater than the level which can be sustained by the ecosystems – e.g. the climate, the forests and the oceans.

4. Dangers and unjustifiable risks to human health are to be avoided.

5. The structural changes triggered by technological developments and international competition are to be managed in a way which is both economically successful and ecologically and socially acceptable. To this end, the various areas of policy are to be integrated in such a way as to ensure that economic growth, high employment, social cohesion and protection of the environment go hand in hand.

6. Use of energy and resources and also transport must be decoupled from economic growth. At the same time efforts must be made to ensure that rises in demand for energy, resources and transport resulting from growth are more than compensated for by increased efficiency.

7. Public-sector budgets are also bound to take account of fairness to different generations. The State, the Länder ^[22] and local authorities are to draw up balanced budgets as soon as possible and, as a further step, continually reduce their levels of debt.

8. A sustainable form of agriculture must be compatible with nature and the environment and must have regard to forms of husbandry which respect the rights of animals, and to preventive forms of consumer protection, especially as regards health.

9. To strengthen social cohesion, preventive measures should as far as possible be taken to combat poverty and social exclusion, the whole of the population should be offered opportunities to take part in economic development, everyone should participate in social and political life.

10. The international framework conditions are to be devised in such a way that people in all countries can lead a life of human dignity according to their own cultural principles and can participate in economic developments. Environment and development form a unity. In an integrated approach the fight against poverty is to be linked to respect for human rights, to economic development, environmental protection, and also to responsible action on the part of Government.

There is a basket of approaches to be found in the Strategy Paper (and pursued in the Progress Reports and "Guidepost") which are to animate these written Management Rules.

First of all, as to the crucial issue of energy demand, ^[23] there is a dual strategy: On the one hand, there is the need to increase energy efficiency. It shall be accomplished by an enhanced effectiveness of power plants, combined heat and power generation, the development of fuel cells, ^[24] incentives for the production of cars with lower gas mileage, a categorization of household appliances in terms of energy efficiency and rules for appropriately labelling them, and the subsidization of the refurbishment of buildings ^[25]. On the other hand, the use of renewable energies shall be extended, especially wind and solar power, with the objective for them to represent half of the energy supply until the year 2050, accompanied by slowly phasing out of nuclear energy.

To realize this practically, there has been a need for shiftings in the budget, allocating funds for technologies that are worthy of supporting, allocating funds for subsidization. Modifications in tax law should also be mentioned, for example the rise in petroleum tax to privilege frugal vehicles. One of the main legislative measures in regard to energy politics has been the Renewable Energy Sources Act 2004 which is already serving as a role model for legislation in numerous other countries. As regards content, the act provides for financial reimbursement rates to operators of all kinds of renewable energy power plants, effected per kilowatt-hour that is inducted into the grid. It went along with the new Atomic Energy Act 2002, which is a result of a major rethinking in politics. The act emanated from the so-called „nuclear energy consensus" („Atomkonsens"). It came into force in April 2002 featuring a new legal intention which set a striking new course for the future: The purpose of the law was not anymore the secure handling, but the controlled finalization of the use of nuclear energy because of the long-term risks and the persistence of the residual wastes that affect many generations. In this spirit, the act prohibits the construction of new nuclear power plants, it limits the general running periods of existent power plants, and caps their permitted gigawatt-hour outputs. Furthermore, the act features the requirement of regular safety inspections, the prohibition of the recycling of nuclear wastes (instead pronouncing the preference of ultimate disposal), and the raise of the compulsory financial security by plant operators (tenfold, up to 2,5 billion € each and an unlimited personal liability). This consensus is law of the land, but it is also true that it has been put into question and criticized, mainly because of the consequence that, without nuclear energy, more fossil fuels would have to be burnt to meet the energy demand, and there would be a dependence on other countries’ resources. On grounds of this, actually, the conservative-liberal coalition elected in 2009 is heading for a renunciation of the "nuclear energy consensus".

Secondly, there are strategies in the Paper that concern the area of mobility: ^[26] As to the transport of goods there shall be an intensification of railway traffic rather than road traffic to decrease the amount of heavy goods vehicles. This way, there shall be a reduction of noise, exhaust gas pollutions, and the impairment of landscape by usage for road-construction.

The means to achieve this has been a highway toll for heavy goods vehicles. An upgrading and modernization of the railway infrastructure and the improvement of the railway system efficiency are also scheduled, ^[27] with the objective being 25% of the total capacity of transport of goods to be carried out by rail until 2015. Besides, to reduce transport on the whole, more effort shall be put on the regional marketing of agricultural products.

Thirdly, there are strategies regarding the promotion of healthy food and alimentation. ^[28] Consumers shall be enabled to make informed decisions on the market based on sufficient (not unclear, misleading) information about the products. It premises a system of labelling with meaningful certificates of quality and origin, informing about ecologically compatible production and processing, so that the market can fairly determine which products shall prevail in the competition. Such a steering effect of the hence transparent market shall go along with subsidies for agriculture under specified conditions. Further goal is the preservation of culturally developped landscapes and a high esteem for animals in husbandry and transport, the latter was implemented in the Animal Protection Act 2006.

The fourth issue that was addressed in the Strategy Paper is demographic change. ^[29] This has been of a particular concern in this country since less children have been born and society’s average age soars rapidly and threatens to continue to do so. ^[30] This aspect belongs to the social component of sustainable development, bearing in mind that any development requires an (at least) stable population for many reasons that cannot be treated in detail in this article. Anyway, the measure considered to halt the decrease of population is that families and children (with or without the parents being married) shall be promoted, keeping in mind justice between the generations. This promotion is accomplished through child allowances, tax reliefs and exemptions, a system of all-day child care, more student and vocational loans and grants, and the facilitation of parental leave.

As to education, ^[31] the objective is to reduce the quota of people without university entrance qualification or vocational degree; likewise the increase of the quota of university graduates. There shall be an early promotion particularly for children from socially disadvantaged and immigrant families, even in pre-school age, to cut back inequality due to the social and geographic background, and a collaboration between school and parents’ house.

The next issue concerns innovations in the economy. ^[32] It shall be accomplished by a cutback of too detailed, meticulous regularizations where they are not necessary, hence creating wider scopes for decision-makers and more room for innovative ideas. Besides, there is the vision of more interdisciplinary research teams and an enhanced networking between science and economy.

In spatial and settlement planning, ^[33] the central goal is the preservation of areas to be left clear. Now, the Federal Nature Protection Law sets up the objective of creating a network of biotopes to constitute at least 10% of the country’s total territory, cf. section 3. The consideration of nature preservation and landscape conservation are to be taken into account on every occasion where legal values and interests have to be balanced and appreciated by authorities in urban and regional development and planning law in order to achieve an optimal use of space within municipalities and on higher levels.

Finally, one part of the national strategy involves the awareness of global responsibility ^[34] which demonstrates again the interlinkage between the different levels of action. For the global level, there is the idea to found a United Nations World Commission for Sustainability and Globalization with a new conception of competences, to be made up of internationally renowned figures on the model of the Brundtland Commission. ^[35] The main objective was identified as the fight against worldwide poverty and the reduction of inequality, for example by means of debt write-off programmes, ^[36] the promotion of basic education in cooperation with developping countries, the budgetary allocation of a specified minimum percentage of the gross national product for the public development assistance, the strengthening of the United Nations Environment Programme (UNEP), and – what is important to a high degree – the opening of the markets by cutting back import tariffs and export subsidies.

A great deal of this tariff and subsidy policy is done within the framework of the European Union (EU). Policies concerning sustainable development cannot be described without – at least briefly – mentioning the ongoing cooperation within the EU, for member states, such as Germany, are engaging on this level as well. The Preamble of the Agenda 21 expressly ascertains that when the term "Governments" is used in this document, it will be deemed to include the European Economic Community (as an integral part of today’s EU structure) within its areas of competence. The principle of sustainability is laid down in the statutes of EU, see section 2 of the Treaty on European Union and 6 of the Treaty on European Community as well as both treaties’ preambles. The importance is due to the fact that the application of European law takes priority over national law.

The EU itself ^[37] put forward a "European Sustainability Strategy" in 2006, ^[38] expressing the commitment to strengthen the dialogue with partners beyond the EU, and containing seven central challenges to accept. It aligns with the German national policy aiming largely at similar approaches. The above-mentioned national Sustainability Council takes part in the European network of similar councils throughout the continent who play a role in monitoring jointly the European strategy. To accentuate one important point on the European level: Greenhouse gas emissions are determined to be reduced until 2020 by 20% compared to 1990 (which equals 14% compared to 2005) and 20% of the power generation shall be attained from renewable energies. This leads to another quite recent innovation: the trading of emissions with certificates listed on the stock exchange. This way, enterprises can buy pollution rights, the total amount of emissions is controlled and heavily polluting industries have to pay proportionally. ^[39] Initially the certificates are auctioned with the revenues being used for the promotion of climate-related innovations. Still, there are fixed exceptions concerning certain industry branches for fear of their moving abroad (for example steel and aluminum).

After all, an evaluation is necessary to recognize to what extent measures like these have been successful and reached specific benchmarks. That way, it can be determined whether to continue or reconsider them. The evaluation is to be effected by means of 21 performance indicators seeking to make the progress quantifiable, much as it is difficult to measure sustainability. The indicators were also set up by the Government in the 2002 Strategy Paper and need to be reproduced here: ^[40]

1. Productivity of energy and raw materials

2. Emissions of the six greenhouse gases specified in the Kyoto Agreement

3. The proportion of renewable energy sources in overall energy consumption

4. Increase in land use for housing and transport

5. Development of the stocks of specified animal species

6. Balance of public sector financing

7. Capital-outlay ratio

8. Private- and public-sector expenditure on research and development

9. Educational outcomes for 25-year-olds and number of new students

10. Gross domestic product

11. Transport intensity and share of the railways in providing goods transport

12. Proportion of ecological agriculture and general statement on nitrogen surplus

13. Air pollution

14. Satisfaction with health

15. Number of burglaries

16. Labour force participation rate

17. Full-time care facilities

18. Relationship between male and female gross annual earnings

19. Number of foreign school-leavers who have not completed secondary school

20. Expenditure on development collaboration

21. EU imports from developing countries

By dealing with such fixed values, the monitoring of the chosen policies becomes transparent and traceable. In 2006, an "Indicators Report" was published by the Federal Statistical Office on behalf of the Government, demonstrating the success that had been made as well as still existent deficiencies. ^[41] In 2008, a revised version was publishes.

The latest institutional action that was taken on the political stage and that shall be noted here is the formation of a special Parliamentary Advisory Committee for Sustainable Development in the Bundestag. ^[42] Just like the Sustainability Council it is not provided for in the Basic Law. It is a consortium of delegates, an interest group consisting of 40 members with similar concerns. It was constituted in June 2006 and its aim is to "advocate for long-term responsibility in favour of the future generations" in political events and legal projects, since the Committee is part of a law-making body. The delegate’s intention is to discuss objectives and instruments collaterally with other organs of State, to give recommendations as to medium- and long-term strategies, to make consultations with other parliaments (within the federal Republic and particularly within the EU), and at last, report biennially about its work.

The initial Strategy Paper of 2002 was combined already with a request towards all groups of society for involvement within the bounds of possibility. The permanent discussion and collaboration between as many participants as possible in society was declared to be a key element in the Paper. ^[43] "Interested citizens" are regularly asked for contributions and suggestions concerning the further development of sustainability strategies for the next progress report. ^[44]

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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.

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V. Is there a need for a Constitutional reform?

The insertion of an explicit, all-encompassing sustainability clause into the Constitution and other means to make sure the observance of the interests of posterity that are being discussed shall be presented now.

Although section 20a deals with subsequent generations as shown, and in doing so, a considerable step in the right direction was made, it does not comprise sustainability beside the ecology and the preservation of the environment. Further fields in which its consideration is necessary are, for instance, financial issues (where the practical effectiveness of the above-mentioned amendment of sec. 109 in 2009 has to be awaited and observed), social security, investments in infrastructure, and regarding to the alienation of federal patrimony to counteract unbalanced budgets as well as international aspects (development assistance and cooperation, fairness of global trade). As a cross-sectional matter, sustainability relates to almost all areas of life. ^[68]

It is not redundant, for such a provision does not exist yet and other provisions cannot be interpreted so as to fulfil the same intended purpose.

First of all, a recent bill introduced by young delegates of different factions is to be mentioned that was proposed (yet not accepted and not turned into constitutional law) in the Bundestag suggesting the insertion of a section 20b into the Basic Law, ^[69] that is to say, systematically right behind the above-quoted basic institutional principles and the environmental protection clause. It said: "The State shall adhere to the principle of sustainability in its acting and protect the interests of future generations". Such a measure would certainly entail the advantage of concentrating all the components into one coherent clause, integrating everything that has to do with perpetuating valued conditions for the future. The advantage is that it would have the great influence that is immanent to the constitutional law, and that it could provide for perpetuated pressure and guidance from the constitutional level, affecting and having effect on every public decision.

The bill was not passed, mainly due to of the following argumentation: Beside there being scepticism because of the recent major constitutional reform, ^[70] the term was considered to be too vague and empty, so that it would eventually only lead to case law on the part of the Bundesverfassungsgericht, and finally, it would not lead to success because every political party has different ideas about the contents of intergenerational justice. ^[71] It was also argued that such a clause would withdraw too many public funds from where they are needed today. ^[72]

It can be replied to the criticism that many constitutional principles and terms require interpretation, in fact, this is common. It is the task of jurisprudence, courts and every applier of the law to work with the new legal situation, as well as it is their responsibility not to treat it like an empty phrase. Accentuations by the Bundesverfassungsgericht in the process are clearly welcome. The withdrawal of important public funds where they are needed today is not a necessary consequence because it is inherent to the concept of sustainability, by definition, to take into account the present society in decisions.

Furthermore, to complement the rules governing the State’s finances, the insertion of a section 109 para. 2 was suggested, generally demanding to heed "the principle of sustainability as well as the interests of future generations" in budget law. This would certainly support the thought that each generation must solve their own problems and refrain from burdening them to future generations, but leaving them their own freedom of decision and freedom for creativity. The 2009 amendment does not name "sustainability", but it is obvious that the principle already stands behind the new sec. 109. We will witness the effects in the bugdet politics sooner or later.

Much as it is true that the democratically legitimated Parliament is reliant to a scope for extensive own judgments concerning the budget including borrow, section 115 needs to be reformed to constrict the budget law a bit more in favour of future generation. J. Tremmel suggests the insertion of the following sentence into section 115: "The identification of a disturbance of a macroeconomic equilibrium rests with an Expert Advisory Board" so that the Government would be bound by the judgment of an independent body of specialists. ^[73] As alternatives, he also suggests the complete cancellation of the whole exception in section 115, and an across-the-board discount to the investment sum by a specified percentage (to take into account investments that fail). These are promising approaches to be assessed furthermore in jurisprudence and to be considered in the upcoming constitutional reform regarding the public finances.

Another notable suggestion for a constitutional amendment to be mentioned here is the creation of a further constitutional body, an institution to control Government or Parliament acts and judge their consistency with the concept of sustainability. It would be a special "sustainability watch organ". ^[74] In this regard, it is imaginable to officially lay down in the Constitution a (sub-)organ like the above-mentioned German Sustainability Council or the Parliamentary Advisory Committee for Sustainable Development. The advantage of such an institutionalization is the visible permanence of the commitment to sustainability. Besides, the long-term horizon that is inherent in the intergenerational component of sustainability clashes with the transient character of democracy – this is also arguing for an independence from particular governments and election pledges. The problem to bear in mind is that sustainability-related acts largely contain essential regulations and these should be made by the organs with the strongest democratic legitimation themselves, at least these should always have the final say. Such new organ could be constitutionally endowed with advisory power always leaving the definite decision to the democratically legitimated organ.

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VI. Concluding theses

This article meant to show that "sustainability" and "sustainable development" are no mere unsubstantial buzzwords, they are clearly not only empty phrases used for politicking, as it is criticized oftentimes. There are actual efforts behind it.

Beside the Governments’ activity in this regard, a strong involvement of elements of society ^[76] is key, the impression that only the State would create sustainability should not be evoked.

In any case, the article also meant to contribute to the worldwide discussion; for the sharing and propagation of ideas and an international exchange – in all directions – are valuable, if not indispensable. Approaches, strategies, and national policies in one country may serve as a suggestion for others and vice versa. All approaches, and the good and the bad experiences with them, should be made known to a broader public.

Especially since the globalisation of markets is proceeding and because of the global effects of some environmental impairments, there is no doubt that in many crucial points of the process an internationally coordinated action is essential, ^[77] for instance as to the reduction of greenhouse gas emissions, and should be continued with the highest priority.

In German Law, section 20a of the Basic Law is rather far-reaching, but a more general policy objective clause and some reference in the provisions concerning budget law are missing in Germany. A more profound enshrinement in the Basic Law is deemed recommendable. Additionally, an advisory (sub-)organ with special expertise could be laid down in the Constitution, with the restriction made above. Although the recent Governments have been active here in regard to sustainability as shown, such a securing and perpetuation on the constitutional level influencing all State decision has unfortunately never been promoted by the Government, and has obviously been perceived unnecessary. Yet, to achieve constant awareness and a higher degree of protection of future generations’ freedom, the suggested amendments to the Constitution should be reconsidered, much as the (now only factual) political commitment by the recent administrations has been meritorious. The constitutional order should be a stable, reliable constant, and to uphold legal certainty and faith in the constitutional law, it should not be changed to hastily and only be amended restrictively, if and to the extent to which it is indispensable. However, as the last conclusion of this article, it is ascertained that politicians should come to the realization that a sustainability clause in the Basic Law would do good: to bind oncoming governments, in the long run, to the complete idea of sustainability, and also as a thought-provoking impulse and signal.

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Bibliografia

S. BRAUN, Tierschutz in der Verfassung – und was nun? Die Bedeutung des neuen Art. 20a GG, in: Die Öffentliche Verwaltung (DÖV), 2003, p. 488 et seqq.

J. CASPAR/M. GEISSEN, Das neue Staatsziel "Tierschutz" in Art. 20a GG, in: Neue Zeitschrift für Verwaltungsrecht (NVwZ), 2002, p. 913 et seqq.

H. DREIER (ed.), Grundgesetz Kommentar, Vol. II, 2^nd ed., 2006.

G. FERREIRA DE ARAÚJO, Sustainability Strategies, Vol. I, 2007.

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G. KETTELER, Der Begriff der Nachhaltigkeit im Umwelt- und Planungsrecht, in: Natur und Recht, 2002, p. 513 et seqq.

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H.-J. MENZEL, Das Konzept der "nachhaltigen Entwicklung" – Herausforderung an Rechtssetzung und Rechtspolitik, Zeitschrift für Rechtspolitik (ZRP) 2001, p. 221.

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U. SCHEUNER, Staatszielbestimmungen, in: Festschrift für Ernst Forsthoff, 1972, p. 325 et seqq.

P. SIEBEN, Was bedeutet Nachhaltigkeit als Rechtsbegriff?, in: Neue Zeitschrift für Verwaltungsrecht (NVwZ), 2003, p. 1173 et seqq.

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Notes

1. The text of the Declaration of Rio de Janeiro is available on: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm (30/9/2009).
2. Extract from the Preamble of the Agenda 21, Chapter 1.3: Ò[...] Its successful implementation is first and foremost the responsibility of Governments. National strategies, plans, policies and processes are crucial in achieving this. [...]Ó
3. ÒThink global. Act local.Ó is the motto of the Local Agenda 21. Chapter 28.1 of the Agenda 21 reads: ÒBecause so many of the problems and solutions being addressed by Agenda 21 have their roots in local activities, the participation and cooperation of local authorities will be a determining factor in fulfilling its objectives. Local authorities construct, operate and maintain economic, social and environmental infrastructure, oversee planning processes, establish local environmental policies and regulations, and assist in implementing national and subnational environmental policies. As the level of governance closest to the people, they play a vital role in educating, mobilizing and responding to the public to promote sustainable development.Ó
4. Grundgesetz fŸr die Bundesrepublik Deutschland of 23^rd May, 1949, last amended on 29^th July, 2009 (Federal Law Gazette I 2248).
5. The term ÒsustainabilityÓ is usually translated with Nachhaltigkeit, Òsustainable developmentÓ is translated with nachhaltige Entwicklung.
6. G. Ketteler, Der Begriff der Nachhaltigkeit im Umwelt- und Planungsrecht, in: Natur und Recht, 2002, p. 513 et seqq. who analyses the significance of the term ÒnachhaltigÒ in different statutes. See also P. Sieben, Was bedeutet Nachhaltigkeit als Rechtsbegriff?, in: Neue Zeitschrift fŸr Verwaltungsrecht (NVwZ), 2003, p. 1173 et seqq.
7. http://www.bundesregierung.de/nn_486242/Content/DE/Artikel/2001-2006/2007/11/2007-11-27-konsultationen-zur-nachhaltigkeitsstrategie.html (30/9/2009).
8. StaatssekretŠrsausschuss, also called ãNachhaltigkeitskabinettÒ or ÒGreen CabinetÒ.
9. Gemeinsame GeschŠftsordnung der Bundesministerien, cf. paragraph 44.
10. Most of the bills have their origin in the ministerial administration before going into Parliament.
11. Earlier occurrences shall not be addressed in this article. In this regard, see H.-J. Menzel, Das Konzept der Ònachhaltigen EntwicklungÓ – Herausforderung an Rechtssetzung und Rechtspolitik, Zeitschrift fŸr Rechtspolitik (ZRP) 2001, p. 221 with further evidence.
12. Rat fŸr nachhaltige Entwicklung.
13. Gerhard Schršder held office from 1998 to 2005.
14. For example the organization of a youth essay-writing competition, film projects, photograph exhibitions, work shops.
15. CSR delineates the voluntary contribution of a private enterprise to sustainable development that exceeds compliance with the legal requirements. It stands for an enterprise’s responsible operation within its proper business (market), towards the environment and in relation to its employees and any stakeholders. See G. Ferreira de Araœjo, Sustainability Strategies, Vol. I, 2007, 105 et seqq., who refers to the ãcompany as one of the main protagonists of the modern worldÓ.
16. ÒCorporate Responsibility in a Globalised World – A German Profile of Corporate Social Responsibility: Recommendations of the German Council for Sustainable DevelopmentÓ (available in English on http://nachhaltigkeitsrat.de/projects/csr). Cf. also the Green Paper of the European Commission, "Promoting a European framework for corporate social responsibility, COM (2001) 366, Brussels 2001.
17. ÒPerspectives for GermanyÓ. Available on the German Federal Government’s web site: http://www.bundesregierung.de/nn_774/Content/DE/__Anlagen/2006-2007/perspektives-for-germany-langfassung,property=publicationFile.pdf (30/9/2009), in an English version.
18. ÒFortschrittsberichteÓ. The First Progress Report was published in November 2004.
19. ÒWegweiser NachhaltigkeitÒ, also in an English version on http://www.nachhaltigkeitsrat.de/uploads/media/Landmark_Sustainability_2005.pdf (30/9/2009).
20. Cf. the classification of sustainability strategies taken by H.-J. Menzel, l.c. (foot note 11), p. 224.
21. As they can be found in the Strategy Paper ÒPerspectives for GermanyÓ, 2002, p. 50-52.
22. (Bundes-)LŠnder is the denomination for the 16 federated states in the Federal Republic of Germany.
23. Cf. Perspectives for Germany, p. 132 et seqq.
24. Power generation by chemical reactions with hydrogen.
25. Area-wide use of thermostats in heating systems, airtight windows, insulation against loss of heat.
26. Cf. Perspectives for Germany, p. 177 et seqq.
27. Since 1994 the (formerly public law) German railway has been organized as a corporate enterprise under private law (called Deutsche Bahn AG) whose sole shareholder is the Federal Government, cf. section 87e of the Basic Law. At the moment, there is a political discussion about further reforms.
28. Cf. Perspectives for Germany, p. 205 et seqq.
29. Cf. Perspectives for Germany, p. 248 et seqq.
30. There are other countries, however, where this problem is not known, be it for high birth-rates or immigration.
31. Cf. Perspectives for Germany, p. 262 et seqq.
32. Cf. Perspectives for Germany, p. 276 et seqq.
33. Cf. Perspectives for Germany, p. 287 et seqq.
34. Cf. Perspectives for Germany, p. 299 et seqq.
35. In terms of Chapter 38 of the Agenda 21 (ÒInternational Institutional ArrangementsÓ), there already exists the United Nations Commission on Sustainable Development today as a functional commission of the UN Economic and Social Council (ECOSOC) since 1992. It monitors the implementation of resolutions in the UNCED follow-up process, that is to say the Agenda 21. It is subordinated to the General Assembly and has no competence to make proper decisions that would be authorative under international law.
36. Like the Development Policy of the Federal Republic of Germany called ÒAktionsprogramm 2015Ó which was presented in 2001.
37. More precisely: the European Council (also referred to as a European Summit), an intergovernmental organ composed of the member states’ leaders and the President of the (executive) European Commission. According to section 4 of the Treaty on European Union it shall provide the Union with the necessary impetus for its development and has the competence to determine the general political guidelines for the Union.
38. Last reviewed version: COM (2009) 400, Brussels 2009. Available on: http://ec.europa.eu/sustainable/welcome/index_en.htm (3/11/2009).
39. The European Union Emission Trading Scheme is the largest multi-national, greenhouse gas emissions trading scheme in the world and was created in conjunction with the Kyoto Protocol. See the Directive 2003/87/EC of the European Parliament and of the Council that has been transferred into national law, Official Journal of the European Union, 2003, p. 32 et seqq.
40. Cf. Perspectives for Germany (short version) p. 12-13.
41. See the report available for download (yet partly only in German language) on http://www.bundesregierung.de/nn_658634/Webs/Breg/nachhaltigkeit/DE/Berichte/Berichte.html (30/9/2009).
42. Parlamentarischer Beirat fŸr nachhaltige Entwicklung. For further information on the committee (its members, agenda, press releases, and actual hearings) see http://www.bundestag.de/bundestag/ausschuesse/gremien/beirat_nachhaltigkeit/index.jsp (30/9/2009) and Bundestag Printed Paper 16/1131.
43. Perspectives for Germany, p. 3 and 54 et seqq.
44. Everyone can submit comments on the Government’s web site (cf. foot note 17).
45. Such elevated requirements can be found in most constitutions, however, with different majorities. The provision corresponds to section 60 of the Brazilian Federal Constitution, where a 60% majority in both houses of the National Congress is sufficient. In contrast, a statutory law usually requires only a simple majority in parliament (cf. sections 42 para. 2 and 76 of the Basic Law).
46. The Bundestag is a federal chamber of legislation constituted by delegates who are one half elected directly by the people and the other half sent by the polical parties corresponding to the share of obtained votes. The Bundesrat is a federal chamber constituted by members of the 16 LŠnder Governments to represent their interests within the federation. In the process of law-making the organs work together according to sections 76 et seqq. of the Basic Law.
47. The Brazilian Federal Constitution of 1988 is much more elaborate in regard to sustainability than the German Constitution. Section 225 deals elaborately with nature protection, 170 VI deals with the economic order that has to take the environment into account and there is a detailed dedication to social welfare in many parts of the constitutional text.
48. See for example: Section 71 of the Polish Constitution, section 24 of the South African Constitution.
49. Section 225, caput, of the Brazilian Federal Constitution: ÒTodos tm direito ao meio ambiente ecologicamente equilibrado, bem de uso comum do povo e essencial ˆ sadia qualidade de vida, impondo-se ao Poder Pœblico e ˆ coletividade o dever de defend-lo e preserv‡- lo para as presentes e futuras gera›es.Ó
50. Section 66 of the Portuguese Constitution.
51. Cf. the regulation for the constitutional complaint (ÒVerfassungsbeschwerdeÓ) in section 93 no. 4a of the Basic Law in combination with sections 90 et seqq. of the Federal Constitutional Court Act.
52. H. Jarass and B. Pieroth, Grundgesetz fŸr die Bundesrepublik Deutschland, 8th ed., 2006, margin no. 2 to sec. 20a.
53. For the later introduction, reasons and contents of the animal protection see S. Braun, Tierschutz in der Verfassung – und was nun? Die Bedeutung des neuen Art. 20a GG, in: Die …ffentliche Verwaltung (D…V), 2003, p. 488 et seqq.; J. Caspar/M. Geissen, Das neue Staatsziel ÒTierschutzÓ in Art. 20a GG, in: Neue Zeitschrift fŸr Verwaltungsrecht (NVwZ), 2002, p. 913 et seqq.
54. H. Jarass and B. Pieroth, l.c. (foot note 52), margin no. 4 to sec. 20a.
55. H. Jarass and B. Pieroth, l.c. (foot note 52), margin no. 10 to sec. 20a.
56. Section 79 of the Basic Law.
57. In this regard, Constitutions differ considerably: In the Brazilian Federal Constitution, there are social individual rights (detailed sections 6 to 11) and there is a chapter on the social order (sections 194 to 204).
58. A useful commentary as to the contents of the principle: K.-P. Sommermann in: vMangoldt/Klein/Stark, Grundgesetz, Vol. II, 4. ed., 2000, marginal no. 102-106 to sec. 20, where it is suggested to refer to the principle as enabling state rather than welfare state.
59. R. Gršschner in: H. Dreier (ed.), Grundgesetz Kommentar, Vol. II, 2^nd ed., 2006, margin no. 59 to sec. 20.
60. Cf. Federal Constitutional Court, Official Compilation, Vol. 4 (1954), p. 7 et seqq.
61. Sections 170 to 181 contain regulations about ÒGeneral principles about economic activityÓ.
62. Speaking of the rule of proportionality, in many cases it can be considered more appropriate to encourage or incentivize the economy to voluntary self-commitments and to monitor the results than to enjoin strict regimentation under threat of persecution.
63. By the time the Constitutional Court makes a decision after an elaborate control, many years may have passed (for example, when the 1981 budget was challenged, the final decision was passed only in 1989). The Budget Act may be declared unconstitutional then, but the too high borrow would have occurred nonetheless. Besides, the Court grants a wide scope for judgment to the budget legislation, cf. H. Jarass and B. Pieroth, l.c. (foot note 52), margin no. 5 to sec. 115.
64. H.-J. Menzel, Das Konzept der Ònachhaltigen EntwicklungÒ – Herausforderung an Rechtssetzung und Rechtsanwendung, Zeitschrift fŸr Rechtspolitik (ZRP), 2001, p. 221 (225 et seq.): The rules are ãanachronistic and in need for revisionÒ.
65. M. Kotulla, Umweltgesetzgebungskompetenzen und ÒFšderalismusreformÓ, Neue Zeitschrift fŸr Verwaltungsrecht (NVwZ) 2007, 489 et seqq. who also explains the changings in the repartition effected by the reform of federalism in the year 2006.
66. In this point the Brazilian and the German legal system bear resemblance, cf. section 25 of the Brazilian Federal Constitution.
67. H. Schulze-Fielitz in: H. Dreier (ed.), Grundgesetz Kommentar, Vol. II, 2^nd ed., 2006, margin no. 20 to sec. 20a.
68. G. Ketteler, l.c. (foot note 6), p. 514.
69. Frankfurter Allgemeine Zeitung, 15^th July, 2006, p. 4.
70. Reform of Federalism, the largest constitutional reform in the history of the Federal Republic of Germany according to the amendment of 28^th August, 2006 (Federal Law Gazette I 2034).
71. Statement of the Social Democrat delegate F. Pronold, in: Frankfurter Rundschau, 15^th July 2006.
72. Criticism pronounced by left-wing party DIE LINKE delegate N. Hirsch, in: taz, 15^th July 2006.
73. J. Tremmel, Generationengerechtigkeit in der Verfassung, in: Aus Politik und Zeitgeschichte, 2005, issue 8.
74. Be it as a ãthird chamberÒ, as a ãFuture CouncilÒ or an ãOmbudsmanÒ; cf. the suggestions of J. Tremmel, Institutionelle Verankerung der Rechte nachrŸckender Generationen, in: Zeitschrift fŸr Rechtspolitik (ZRP) 2004, p. 44, who describes the approaches for regulation models in different countries.
75. Cf. section III of the Agenda 21 (Chapters 23 to 32) that addresses ÒMajor GroupsÓ.
76. Cf. the response of the Sustainability Council to the Progress Report of 2004: http://www.nachhaltigkeitsrat.de/uploads/media/RNE_Stellungnahme_Fortschrittsbericht_2004_01.pdf (4/11/2009).