Der Selbstand der Verfassung in ihren Verweisungen und Öffnungen

The independence (»Selbstand«) of the constitution corresponds to the top priority it claims within the state law's hierarchy and to its primacy over all other laws of the state: the constitution exists on its own terms, its validity is neither derived from nor enforced by another law. The constitution does not belong to another law, and it decides on its content by itself. The constitution's independence is secured by document. The German constituent power has brought the entire constitution together in one single comprehensive document, the Basic Law. Containing the authentic text, the codified constitution is reliable, complete and concluding. The document ensures publicity and conveys legal certainty as far as the mere text is able to. The Basic Law assures its exclusive right to authentication, as it permits amendment only if its text is altered explicitly (art. 79 para. 1). Its independence can be questioned in case the constitution refers to or opens to external law. A distinction has to be made between: - original references in the primary version adopted by the Parliamentary Council in 1949 and subsequent references that have been included by constitutional amendment; - horizontal references to other constitutional law and vertical references to inferior or superior law; - incorporating references including the particular object (e.g.the regulations of the Weimar constitution concerning the relationship between state and church) into the Basic Law, thereby giving it equal rank, and transferring references shifting an actually constitutional matter (e.g.the equalisation of out-of-wedlock children) to a lower level of law hierarchy; - backward references to pre-constitutional law and forward references to law that is to be enacted by order of the constitution; - static references to fixed regulations and dynamic references to alterable regulations in their current versions; - explicit (apparent) references and implicit (hidden) references that come up by interpretation; - internal references within state law and external references to supranational or international law. The reference is not plainly unlawful. The independence of the constitution is not affected as long as the constitution keeps control over the assimilation of external law. The »danger zone« is reached if the reference itself is undetermined or if it concerns undetermined content, if the constitution is reduced into a fluid state by dynamic references and if the disposal of the particular content is assigned to an external legislator. The border to unconstitutionality is crossed if the Basic Law is no longer the consistent basis of constitutional law and if secondary constitutions are established that had to be avoided by the codification. The constitutional law which is highest in rank is largely most lacking in content. The constitution's independence gets undermined if abstract terms such as »marriage« and »family«, »property« or »inheritance« are determined and laid out by sub-constitutional law. The Basic Law's references to supranational or international law do not affect its independence as far as their wording or their original notion is concerned. Nonetheless, there are recent tendencies to interpret the references dynamically. As a result, the Basic Law seems to be in force only according to external law. The avowal to human rights as part of natural law (art. 1 para. 2 GG) is being interpreted as the Basic Law's submittal to the growing and inconsistent portfolio of human rights documents in international law. The general principles of international law incorporated by the Basic Law onto a level between federal and constitutional law (art. 25 GG) are to become part of the Basic Law themselves ipso jure. - In Germany, the European Convention on Human Rights is valid as federal law (art. 59 para. 2 s. 1 GG). However, recent jurisdiction and literature tend to a convention-friendly interpretation of the Basic Law which implants the
Tabea Glemser: Slotvergabe an deutschen und europäischen Flughäfen. Rechtspositionen und aktuelle Entwicklungen unter besonderer Berücksichtigung des Slothandels