Il giudice come legislatore? Lessons (to be) learned from the Bundesverfassungsgericht

Judges as law-makers? Lessons (to be) learned from the Bundesverfassungsgericht

Abstract

The present article analyses a long-awaited and much discussed decision of the German Federal Constitutional Court, which in the specific context of the so-called sachgrundlose Befristungen (fixed-term employment contracts with no objective reason for the time limitation) defines both admissibility and limits of judicial law-making (richterliche Rechtsfortbildung or schöpferische Rechtsfindung). In the above decision the Bundesverfassungsgericht scolds the German Federal Labour Court for having “exceeded the limits of reasonable interpretation” with regard to a statutory provision regulating the possibility to use these types of contract. While the Federal Labour Court in the meanwhile has adapted to the new – rather vague – “guidelines” provided by the Bundesverfassungsgericht, these guidelines yet have created great legal uncertainty which most presumably only the legislator will be able to solve.

Keywords: Judicial interpretation; Judicial law-making; Fixed-term employment contracts; Occupational freedom; State duties of protection.