New Report on “Regulation of Crash Avoidance Systems” Published

Source: US Global Legal Monitor

Around 1.3 million people worldwide are killed in road accidents every year, and up to 50 million are injured. Vulnerable road users, such as pedestrians and cyclists, make up more than half of those killed and injured. The nonbinding “Stockholm Declaration,” which was endorsed by the United Nations General Assembly in August 2020, calls for a new global target to reduce road traffic deaths and injuries by 50% by 2030. Countries are also discussing new vehicle safety regulations within the framework of the UNECE World Forum for Harmonization of Vehicle Regulations (WP.29), a regulatory forum that administers, among other things, three agreements on motor vehicles and their equipment.

“The constable” – “Buster Brown and his bubble.” Richard Felton Outcault, artist. 1903. Library of Congress Prints & Photographs Division. //hdl.loc.gov/loc.pnp/ppmsca.07849

The Global Legal Research Directorate (GLRD) of the Law Library of Congress recently completed research on the legal requirements for car crash avoidance systems aimed at detecting and classifying vulnerable road users, such as pedestrians and bicyclists. We are excited to share with you the report that resulted from this research, Regulation of Crash Avoidance Systems. The report covers 14 selected jurisdictions, namely Australia, Canada, China, France, Israel, Japan, the Russian Federation, South Africa, Spain, Sweden, Turkey, the United Arab Emirates (UAE), the United Kingdom (UK), and the European Union (EU).

The surveys give an overview of mandatory vehicle safety regulations, such as the new EU Regulation 2019/2144 which updates EU type-approval requirements to ensure the general safety of vehicles, in particular with regard to vulnerable road users, as well as of nonbinding recommendations and additional safety features voluntarily added by manufacturers. Furthermore, rules regarding the development of autonomous vehicles, in particular to increase the safety of road traffic, are described.

We invite you to review the information provided in our report. You can also browse additional reports from the Law Library on other topics. To receive alerts when new reports are published, you can subscribe to email updates and the RSS feed for Law Library Reports (click the “subscribe” button on the Law Library’s website).

70 Year Anniversary of the German Federal Constitutional Court

Source: US Global Legal Monitor

On September 28, 2021, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) will celebrate its 70th anniversary. The Basic Law (Grundgesetz, GG)—Germany’s constitution—entered into force on May 24, 1949, and established a single federal constitutional court with constitutional review power. (Basic Law, arts. 92, 93.) The Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, BVerfGG) entered into force two years later on April 17, 1951. The court started hearing cases on September 7, 1951, and rendered its first decision on the territorial reorganization of the historical German states Baden, Württemberg-Baden, and Württemberg-Hohenzollern on September 9, 1951. The formal inauguration ceremony was held on September 28, 1951. Its seat is in Karlsruhe; the same city that the German Federal Court of Justice (Bundesgerichtshof, BGH)—Germany’s supreme court for civil and criminal cases—is located.

Building of the Federal Constitutional Court. © Bundesverfassungsgericht. foto USW. Uwe Stohrer, Freiburg. Used with permission.

Jurisdiction

The delegates at the Constitutional Convention at Herrenchiemsee, which met from August 10 to August 23, 1948, to draft a constitution for West Germany, debated the question of whether constitutional review jurisdiction should be exercised by a supreme court, being the court of highest instance that forms part of the federal judiciary, or whether it should be exercised by a freestanding constitutional court. However, they could not reach an agreement on that question and therefore explicitly left it open to be answered by the Parliamentary Council. The Parliamentary Council, after extensive discussions that spanned several months, agreed on separating the supreme court from the constitutional court and adopted the “Austrian model.” With regard to the jurisdiction of the court, section 93 of the Basic Law states:

The Federal Constitutional Court shall rule:

1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;

2. in the event of disagreements or doubts concerning the formal or substantive compatibility of federal law or Land law with this Basic Law or the compatibility of Land law with other federal law on application of the Federal Government, of a Land government or of one fourth of the Members of the Bundestag;

2a. in the event of disagreements as to whether a law meets the conditions set out in paragraph (2) of Article 72, on application of the Bundesrat or of the government or legislature of a Land;

3. in the event of disagreements concerning the rights and duties of the Federation and the Länder, especially in the execution of federal law by the Länder and in the exercise of federal oversight;

4. on other disputes involving public law between the Federation and the Länder, between different Länder or within a Land, unless there is recourse to another court;

4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103 or 104 [of the Basic Law] has been infringed by public authority;

4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 [of the Basic Law] has been infringed by a law; in the case of infringement by a Land law, however, only if the law cannot be challenged in the constitutional court of the Land;

4c. on constitutional complaints filed by associations concerning their non-recognition as political parties for an election to the Bundestag;

5. in the other instances provided for in this Basic Law.

Decisions are binding upon the constitutional bodies of the German Federation and of the German states, as well as upon all courts and public authorities. (Federal Constitutional Court Act, § 31, para. 1.) Certain decisions, in particular those concerning the constitutionality of legislation, have the force of law. (Id. § 31, para. 2.) Decisions that have the force of law are published in the Federal Law Gazette.

Selection of Judges

The Federal Constitutional Court is composed of two chambers, called senates. Each senate consists of eight justices. (BVerfGG, § 2.) In general, a candidate must be at least 40 years of age, be eligible for election to the German parliament (Bundestag), and must have stated in writing that he or she is willing to become a member of the Federal Constitutional Court. (BVerfGG, § 3.) Furthermore, each justice must have completed a legal education which qualifies him or her for judicial office pursuant to the German Judiciary Act (Deutsches Richtergesetz, DRiG).

The German Basic Law states that half of the members are elected by the Bundestag (parliament) and half by the Bundesrat (representation of the German states). (Basic Law, art. 94.) They may not be members of the Bundestag, the Bundesrat, the federal government, or of any of the corresponding bodies of a German state. Three positions in each senate are reserved for judges who have previously served on a German supreme federal court for at least three years.

Unlike in the United States, the nomination of a new justice does not make the news. The justices who are chosen by the Bundestag are elected without prior debate by secret ballot upon a proposal of an electoral committee which is formed specifically for this purpose. The electoral committee is composed of 12 members of the Bundestag who are chosen from a list of candidates proposed by the parliamentary groups. To be elected, a justice must obtain a two thirds majority of the votes cast and at least a majority among the members of the Bundestag. (BVerfGG, § 6.) The members of the electoral committee are sworn to confidentiality and are not allowed to reveal the candidates’ personal circumstances, which become known to them as a result of their work in the committee, or the committee’s discussions on this issue and the casting of votes. (BVerfGG, §6, para. 4.) The justices who are chosen by the Bundesrat are also elected by a two-thirds majority. Unlike the Bundestag, the Bundesrat does not form an electoral committee. (BVerfGG, § 7.)

Once a justice is elected, he or she will be appointed by the federal president for a term of 12 years. (BVerfGG, § 4, para.1; § 10.) Justices may not be reelected and retire after their term is up or when they reach retirement age (67 years), whichever is earlier. (DRiG, § 48.)

Robes worn by the justices of the German Federal Constitutional Court. © Bundesverfassungsgericht. foto USW. Uwe Stohrer, Freiburg. Used with permission.

Further Information

The Federal Constitutional Court offers a lot of English-language information on its website, including English translations of important decisions and videos detailing its work, history, and landmark decisions.

The Law Library of Congress holds numerous materials on German law in general, including commentaries on the German Basic Law and the Federal Constitutional Court Act, as well as the decisions of the Federal Constitutional Court.

500-Year Anniversary of the Fuggerei – the Oldest Social Housing Complex in the World

Source: US Global Legal Monitor

On this day in 1521, Jakob Fugger “the Rich” (1459-1525) signed the deed of foundation to establish the “Fuggerei,” which is now the oldest existing social housing complex in the world. It is located in AugsburgGermany. The foundation deed specified that the housing complex was to exist “in perpetuity” and to be “further developed.” The philosophy behind it can be summarized as being to “provide assistance, not charity, to people in need so they can help themselves.” There are a total of nine foundations established by the Fugger family in Augsburg that have been in continuous existence since the 16th century. In addition to the Fuggerei, there are medical facilities, an infirmary, and a foundation to contribute to the salvation of the Fugger family, among others. According to an inscription on a tablet displayed at the Fuggerei, the Fugger family established the foundation to “reimburse God the money that he has generously bestowed upon the family.” Furthermore, at the time, establishing a foundation was considered a good Christian deed that would shorten the time spent in purgatory.

Construction of the buildings for the Fuggerei began in 1516. In 1521, the Fuggerei had 52 buildings, which were mostly occupied by families. Today, there are a total of 67 buildings, 142 residences, and a church. A contract concluded between the Fugger family and the city of Augsburg provides that the Fuggerei is tax-exempt as long as the yearly rent does not exceed one Rhenish Guilder (Rheinischer Gulden)—the weekly salary of a tradesman in 1521. One Gulden corresponds to EUR 0.88 (about US$1.03) in today’s money. Current residents still pay the same amount of yearly rent as in 1521.

Fuggerei. May 23, 2004. Photo by Flickr user Allie_Caulfield. Used under CC BY-NC-ND 2.0.

Conditions for Residents

In order to be eligible for residence in the Fuggerei, a person has to fulfill the following conditions:

  • Catholic
  • needy individual who seeks to earn an income
  • respectable
  • a citizen of Augsburg

Paupers or beggars are not eligible. A person that has been accepted for residence is required to say three daily prayers for the Fugger family (Lord’s Prayer, Ave Maria, and the Apostles’ Creed). In addition, each resident has to perform certain chores, such as serving as night watchman, sexton, or gardener. Residents who wish to enter the Fuggerei after 10pm must pay the night watchman EUR 0.50 (about US$0.59); the price is increased to EUR 1 (about US$1.17) after midnight.

Financing

The operation and maintenance of the Fuggerei is financed by foundation capital, entrance fees, and donations. In the beginning, interest earned from the foundation capital was used; later proceeds from the estates that the foundations own were used. Since the end of the 18th century, targeted investments in forestry have been the main source of financing. Today, the financing consists of 70% of profits from forestry, 10% from real estate property outside of the Fuggerei, and 20% from entrance fees.

Bust of Jakob Fugger “the Rich”. July 16, 2008. Photo by Flickr user Boris Ott. Used under CC BY-NC-ND 2.0.

500-Year Anniversary Celebrations

On the occasion of the 500-year anniversary of the Fuggerei, several activities will take place. In addition, a Fuggerei Code was adopted that spells out the concept behind it in order to develop the “Fuggerei of the future.” It states that

This place is a curated living space for eternity. In exchange for a minimal monetary compensation, the foundation allows local needy individuals to lead a self-determined life in dignity. The concept of the Fuggerei has set standards since 1521.” [translation by author]

Grizzly Bears and the Endangered Species Act

Source: US Global Legal Monitor

My favorite week of the year is “Fat Bear Week,” an annual competition organized by Katmai National Park in Alaska to crown the bear that managed to pack on the most weight over the summer. Bears are fascinating animals to me, which might also have to do with the fact that I am from Germany, where there are no more wild bears. (Actually, the first wild bear to wander into Germany in over 170 years, dubbed Bruno the “problem bear,” had to be trapped by a team of Finnish bear hunters.) Each year, people from all over the world join in the fun to choose the fattest bear. In 2020, they selected bear 747 as the winner, who came in with an impressive volume of 22.6 cubic feet! The competition is a fun event but is also intended “to show off the healthy ecosystem here [in Alaska] and for these animals, fat bears = healthy bears.”

The bears found in Katmai National Park are coastal brown bears. The coastal brown bears are the same species as the inland grizzly bears of Alaska, Canada, and the NW United States (ursus arctos horribilis). However, unlike the coastal brown bears, grizzly bears in the lower 48 states are listed as a threatened species under the Endangered Species Act (ESA). This blog post will give a broad overview of ESA in general and the status of grizzly bears under ESA.

Brown Bear eating salmon. NPS. Katmai National Park and Preserve.

Overview of the Endangered Species Act (ESA)

ESA is “a key legislation for both domestic and international conservation” and helps the United States meet many of its international responsibilities under treaties and conventions, such as the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES) and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Western Hemisphere Convention). It is administered by the U.S. Fish and Wildlife Service (FWS) and the Commerce Department’s National Marine Fisheries Service (NMFS). According to section 2 of ESA,

[t]he purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.

ESA differentiates between endangered and threatened species. A species is endangered, when it is “in danger of extinction throughout all or a significant portion of its range.” (ESA, §3(6).) Threatened species, on the other hand, are “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” (Id. §3(20).) Species are listed as endangered or threatened on the basis of their biological status and threats to their existence, taking into account the following factors:

  • the present or threatened destruction, modification, or curtailment of their habitat or range;
  • overutilization for commercial, recreational, scientific, or educational purposes;
  • disease or predation;
  • the inadequacy of existing regulatory mechanisms; or
  • other natural or manmade factors affecting their continued existence. (Id. §4.)

Species listed under ESA may not be “taken” without a permit. “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.” (Id. §3(19).) For the conservation and survival of endangered and threatened species listed under ESA, recovery plans are developed and implemented. The ultimate goal is the delisting of the species. (Id. §4(f).)

Grizzly Bears and ESA

In July 1975, the U.S. Fish and Wildlife Service first listed the grizzly bear as a threatened species in the lower 48 states under ESA (40 FR 31734). It is illegal to harm, harass, or kill grizzly bears, except in cases of self defense or the defense of others (50 CFR § 17.40). A grizzly bear recovery plan was developed with the goal to delist the species at some point. The recovery plan identified distinct recovery zones for the grizzly bear. There are six recovery ecosystems for grizzly bears today:

On March 29, 2007, the FWS published a final rule designating the Greater Yellowstone Ecosystem (GYE) population as a distinct population segment (DPS) and removing grizzly bears in the GYE from the ESA list (72 FR 14866). However, this rule was vacated by the District Court of Montana on September 21, 2009 (672 F.Supp.2d 1105 (D. Mont. 2009). In 2016, the FWS again proposed to remove the GYE population of grizzly bears from the list of endangered and threatened species under ESA. It stated that “[t]he Service has determined that the GYE grizzly bear population has increased in size and more than tripled its occupied range since being listed as threatened under the Act in 1975 and that threats to the population are sufficiently minimized.” On June 30, 2017, the FWS published its final rule and removed that DPS from the list. This final rule was challenged by six different lawsuits in federal courts in Missoula, Montana and Chicago, Illinois. The Chicago lawsuit was transferred to Missoula, and the lawsuits were consolidated. In 2018, the U.S. District Court for the District of Montana vacated the final delisting rule and restored Endangered Species Act status to the GYE grizzly bear. It held that the FWS failed to consider how reduced protections in the GYE would impact the other grizzly populations and that the FWS’s application of the ESA threats analysis was arbitrary and capricious. It stated that

The Court is aware of the high level of public interest in this case, as well as the strong feelings the grizzly bear evokes in individuals, from ranchers and biggame hunters to conservationists and animal rights activists. The policy implications of the Greater Yellowstone grizzly delisting are significant, but they cannot affect the Court’s disposition. Although this Order may have impacts throughout grizzly country and beyond, this case is not about the ethics of hunting, and it is not about solving human- or livestock-grizzly conflicts as a practical or philosophical matter. These issues are not before the Court. This Court’s review, constrained by the Constitution and the laws enacted by Congress, is limited to answering a yes-or-no question: Did the United States Fish and Wildlife Service (hereinafter “Service”) exceed its legal authority when it delisted the Greater Yellowstone grizzly bear?

On July 30, 2019, in line with the Montana court decision, the GYE grizzly bears were put back on the list.

Grizzly Bear. NPS. Glacier National Park.

On This Day in 1984: Women’s Suffrage in Liechtenstein

Source: US Global Legal Monitor

On July 1, 1984, women’s suffrage was introduced in Liechtenstein— making it the last European country to do so. Liechtenstein is situated between Switzerland and Austria and has a total of 38,557 inhabitants. In the 1984 national referendum, a slim majority of 2,370 (male) voters (51.3%) approved the right of Liechtenstein women to vote and stand for election. Article 29, paragraph 2 of the Constitution was amended to read:

All Liechtenstein citizens who have completed their 20th year, have their normal residence in Liechtenstein, and whose right to vote has not been suspended shall be entitled to all political rights in national matters.

In the first elections in which women were allowed to participate, held in 1986, one woman (Emma Eigenmann) was elected to the parliament (Landtag). At that time, the parliament consisted of 15 representatives. The parliament in Liechtenstein has consisted of 25 representatives since 1988. (Constitution, art. 46.) The number of female representatives has fluctuated over time. (Marxer (2013), at 20.) In the last elections held in February 2021, seven women were elected to the parliament, a new record, raising the percentage of female representation to 28%. The new government that was sworn in in March 2021 has a female majority: three women and two men.

Liechtenstein Parliament. June 9, 2019. Photo by Flickr user crash71100. Used under CC BY-NC-ND 2.0.

Historical Development

A first referendum on women’s suffrage, held on February 28, 1971, was rejected by a narrow majority of 51.09% of voters; only 81 more votes were needed to amend the Constitution. A second referendum held just two years later on February 11, 1973, again resulted in a rejection of the proposal, this time by 55.9% of voters. (BuA No. 47/1983, at 10 et seq.) One of the main reasons why women were denied the right to vote was a fear that foreign women who married a Liechtenstein citizen would “take over.” (Marxer (2004), at 6.) At the time, foreign women gained Liechtenstein citizenship by marrying a man from Liechtenstein, whereas a woman who married a foreigner lost her Liechtenstein citizenship. This situation was remedied in 1974 when an amendment to the Citizenship Act was passed that allowed women who had lost their citizenship through marriage to a foreigner to apply to regain their citizenship within five years.

In 1976, a constitutional amendment authorized municipalities to grant women the right to vote in municipal elections by adopting a communal assembly resolution. Vaduz became the first municipality to introduce women’s suffrage on September 19, 1976. Other municipalities soon followed suit, with the exception of the municipality of Schaan, where women’s suffrage was rejected. (BuA No. 47/1983, at 14.)

In 1982, the Liechtenstein Constitutional Court (Staatsgerichtshof, StGH) had to rule on whether not granting women the right to vote was unconstitutional. (StGH 1982/12, in: LES 1983, at 69.) The suit, filed by 24 women, was based on article 31 of the Constitution which states that “[a]ll Liechtenstein citizens shall be equal before the law.” Citizens is understood to mean “all persons holding Liechtenstein national citizenship without distinction of sex.” However, the Constitutional Court held that this article only applied to general rights and not to political rights (i.e., the rights to vote and stand for election). In addition, the Court quoted the New Testament, stating that “[y]our women, let them be silent in the assemblies” as a factor that might have influenced women’s suffrage in Europe. The Constitutional Court concluded that the question of introducing female suffrage was a political question and had to be decided by amending the Constitution.

However, pressure to introduce women’s suffrage was mounting, in particular because Liechtenstein joined the Council of Europe in 1978 and ratified the European Convention on Human Rights (ECHR) in 1982. In September 1983, in reaction to the Constitutional Court ruling, 12 members of the women’s activist organization “Aktion Dornröschen” (Operation Sleeping Beauty) travelled to Strasbourg to make the Council of Europe aware of the situation of women in Liechtenstein. Some criticized this move as “counterproductive.” Nonetheless, the following year, a new referendum was scheduled, which resulted in the introduction of women’s suffrage. (Marxer (2004), at 9.)

Shall women vote? Ehrhart, Samuel D.,1862-1937. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/ppmsca.26363.

Further Resources

If you are interested in issues concerning women’s suffrage in Liechtenstein, or women’s suffrage and women’s rights in general, feel free to consult the following selected resources: