Year:    2020

Author:    Möstl, Markus

Die Verwaltung, Vol. 53 (2020), Iss. 1 : pp. 21–38

Abstract

In Germany, the competence to legislate on the powers of the police, as far as the prevention of threats to the public security and not the investigation and prosecution of criminal offences is concerned, lies with the Länder. A working group of representatives of the Länder and the federal state is currently drafting a new model Police Act for Germany, i. e. template legislation that will become an important point of reference for the legislative activities of the Länder. This article examines the merits of this project and comments on some decisions the working group has already taken.

It argues that it cannot be the aim of the project to try to achieve full uniformity of police law in Germany. The decision of the German consitution to entrust the Länder (and not the federal state) with police powers should not be undermined. The real purpose of the project should be to reach a consensus on some basic dogmatic notions of police law. It shows that there is currently a great amount of dogmatic uncertainty which could be clarified by the project.

The aim of the working group, which is to set out police powers within and at the limits of the constitution, raises the question whether the constitutional limits of police law have been drawn too tightly by the constitutional court and by academic debate. It is highly unusual that an area of the law is so heavily determinded by constitutional law as is the case with police law in Germany.

A main focus of the article deals with the question of whether the new Act should embrace the notion of “drohende Gefahr” (impending danger), which was considered by the constitutional court and recently introduced by the Bavarian legislator. Normally preventive police powers are linked to the precondition that the police can demonstrate a “konkrete Gefahr” (a concrete danger, i. e. a sufficient likelihood) of a threat to public security. “Drohende Gefahr” (impending danger) means, that there is indeed a sufficient likelihood of such a threat but one cannot foresee yet when, where and how exactly the threat will materialise. The article shows that “drohende Gefahr” is nothing new in essence, but just a borderline case of “konkrete Gefahr” which is now defined in a more precise manner.

Finally the suggestions for detention powers of the police are analysed.