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Let's Talk About Law – The "Live-on-Tape" Podcast for the Discussion Series
Transcript

Episode #1: How does the Federal Administrative Court uphold our rights against the state?

Marie-Elisabeth Miersch:

A warm welcome from me to Let's Talk About Law. My name is Marie-Elisabeth Miersch. I am a lawyer and research associate at the Forum Recht Foundation. And today I am particularly pleased that we will be discussing the role of the Federal Administrative Court in a state governed by the rule of law, as well as how it adjudicates our rights within the state or in relation to the state. We’re joined by an outstanding expert who, through his daily work, plays a key role in advancing administrative law. We’re especially pleased that this conversation will not only take place here on-site but will also be part of our live-on-tape podcast Let's Talk About Law is. This allows us to share the fascinating insights from these discussions with an even wider audience. And to ensure that today’s event is a genuine conversation, we want to actively involve you, our audience. You’ll find voting cards at your seats, which you can use to participate when the time comes. In addition, both you and our guests will have the opportunity at the end of the discussion to ask your own questions and engage in conversation with one another. I am very pleased to welcome the President of the Federal Administrative Court, Professor Andreas Korbmacher. Dear Mr. Korbmacher, it’s great to have you here!

Andreas Korbmacher:

Thank you so much for the invitation! Thank you very much.

Marie-Elisabeth Miersch:

Before I briefly introduce you again, I’d like to start with an opening question that was submitted to us in advance on social media. We asked what people have always wanted to know about you, the President of the Federal Administrative Court. And one of the questions was: Is there a regulation—an administrative regulation—that you, as a private citizen, find really annoying?

Andreas Korbmacher:

Oh my gosh! Well, I’m a private citizen, so I always really appreciate it when I can leave my professional life behind. And as a private citizen, I don’t need to deal with legal stuff on top of everything else, so there are definitely a whole lot of regulations that make me wonder: Are they really necessary? Do I really need them? And I’m just like everyone else in that regard—there are so many examples. Like when I’m riding my bike and, for some reason, I’m not allowed to go in a certain direction, or other things like that. I don’t want to accuse myself of being some kind of law-breaker, like a colleague did who said that just on his way to work, he commits three traffic violations based on the number of traffic lights he runs through. I wouldn’t put it that way, but everyone knows how it is. You can always find something that gets on your nerves. That’s totally okay.

Marie-Elisabeth Miersch:

You don’t have to disclose that if you don’t want to. Now, about you as a person. Please interrupt me if I say anything incorrect here! I’ve jotted down a few notes. You were born in Freiburg in 1960 and began your judicial career in 1988 at the Berlin Regional Court. In 1990, you moved to the Berlin Administrative Court and have remained dedicated to administrative law ever since, as far as I’ve been able to follow. You were also seconded as a research associate to the Constitutional Court of the State of Berlin and to the Senate Administration for Justice. Among other roles, you served as a judge at the Higher Administrative Court in Berlin and were appointed a judge at the Federal Administrative Court in November 2008. You initially served on the Ninth Appeals Chamber—we’ll talk more about what an appeal entails later. But even then, your responsibilities there included, among other things, planning law proceedings concerning the construction of federal highways.

That means you also have expertise in this area, which may come up again today. Then, in 2017, you took over as chair of the Seventh Appeals Chamber, where you focused in particular on environmental law. That will also be a major topic today. In 2019, you were appointed Vice President of the Federal Administrative Court, and in 2022, President. In addition to your judicial duties, you have also been an honorary professor at the Technical University of Berlin since 2007, teaching construction and planning law—which, of course, is a good fit.

Mr. Korbmacher, you have been working in the judiciary for over thirty-five years. Was there a particular moment that had a significant influence on your career choice? Why administrative law?

Andreas Korbmacher:

I enjoyed it right from the start, even while I was in college. It’s simply a field that deals with the relationship between the state and its citizens—one that’s, let’s say, very closely tied to current developments—and then, during the legal clerkship, which is what you do after college, you have the opportunity to get a look into the various areas of the field. And that’s when I realized that criminal law just wasn’t for me at all—I didn’t find it appealing. It was also a matter of chance—I spent six months at the district attorney’s office, but I didn’t find any of it particularly exciting. Then I worked in the civil courts, where I handled quite a few cases, and I learned a lot during my legal clerkship as well. I actually started out as a civil judge. But that’s just something different. It also has a bit to do with the fact that civil law follows a different procedural principle. That means the parties present their cases, and as a judge, you’re somewhat more passive. You can’t just take evidence whenever you think it’s necessary—rather, it’s within the power, but also the responsibility, of the parties to present it.

And as an administrative judge, you have more freedom; you have the authority to conduct investigations on your own initiative. You don’t do that very often, but it’s simply a different approach—as they say these days—in terms of mindset. I noticed that during my legal clerkship, and I just found it much more enjoyable.

Marie-Elisabeth Miersch:

What do you mean by “investigating ex officio”? What kind of investigations are conducted in administrative law? I think people are probably more familiar with criminal law, where investigations are conducted, searches can be carried out, and so on.

Andreas Korbmacher:

Exactly, but in principle it’s similar. We have the authority to request information from all government agencies, to request files, to interview witnesses, and to obtain expert opinions. We can do all of that, and it’s done on a regular basis—for example, all the hearings in the asylum sector are conducted ex officio; no one has to file a request for them.

And in other areas as well—when we negotiate the infrastructure projects you’ve already mentioned—we have a balanced group of experts, and we assign them specific topics or ask them questions. That is an ex officio investigation. We do not rely on a party to suggest or request this; rather, we do it on our own initiative and at our own discretion, and if we believe it is necessary to investigate, then we can do so.

Marie-Elisabeth Miersch:

You've been president for just under two and a half years. What's it like?

Andreas Korbmacher:

Yeah, great!

Marie-Elisabeth Miersch:

So is that exactly how you imagined it? Did you also have doubts at first about whether you could fill this position—if there’s even a clear idea of how to do so?

Andreas Korbmacher:

Yes, well, a definite yes—that applies to all positions, ever since I became a federal judge here. It’s a great honor; luck plays a part in it, there’s no question about that. And when you’re sitting here and say, „Now I’m at the Federal Administrative Court,“ you’ve really made it to the very top of the administrative court system. And then I sat there at my desk and thought, “Wow,” now you’re signing documents here with the grand seal of the Federal Republic of Germany, and that really does something to you.

So, in the best sense of the word, you have to be humble and acknowledge that it’s not just your own achievement—a lot of luck played a part in it. And that’s true for everyone; it’s the same for each of us. So if you’re unlucky, you won’t get elected, and then, age-wise, you’re somehow no longer really in the running. So it’s not just your own achievement. And that’s even more true the further you get. That applies to the vice president, and even more so to the president.

And then, of course, you have these towering role models and huge shoes to fill, and you find yourself wondering: Do you belong here? Can you hold your own, give decent speeches, and will you be taken seriously? I was fortunate that I had previously served as vice president; then my highly esteemed predecessor, Mr. Rennert, retired, and it took a year and a half before a successor—that is, me—was appointed. And during that time, I was able to get to know the role a bit, so to speak, flying under the radar as acting vice president. And if you don’t enjoy performing administrative duties—and as my colleague Limperg from the Federal Court of Justice says—you just have to make do with what you’ve got; you have to deal with things that aren’t exactly earth-shattering or all that glamorous. What was and remains important to me is that I’m still a judge and that I enjoy adjudicating cases—and do so frequently. And I simply have wonderful colleagues. I don’t have to take care of everything myself.

Marie-Elisabeth Miersch:

We spoke with Ms. Gallner, the president of the Federal Labor Court, last week. And she said she feels a bit of a connection to you as well. She mentioned the “Kaminlaufbahn”—I had to look it up on Google to see what that meant—which refers to a career path originating from the Federal Administrative Court. Because you think that it might have made things easier that you were already Vice President, already Chief Justice, and came directly from within the institution yourself. Would you agree with that?

Andreas Korbmacher:

Yes, of course it makes things easier; I'm familiar with all levels of administrative jurisdiction, so I also know what goes on in the first and second instances. I also know how privileged our working conditions are here.

And then there’s Ms. Gallner, whom you mentioned—I’ve also met her, just as I’ve met the other four colleagues—and she’s been very supportive; we enjoy working together, since we share common areas of focus, such as IT and IT security. But there are also completely different issues, such as the salary structure and hiring policies—these are very similar topics across the various highest federal courts.

Well, here at the Federal Administrative Court, it’s ultimately always been the case that it was people from within our own ranks who ended up taking the stand. And we’ve certainly had some really big names here in the past. And of course, I’m part of the court’s staff, so I’m biased, and I’ve built my career within the court myself. But I think it’s proven to work.

Marie-Elisabeth Miersch:

You touched on this briefly earlier: How does one actually become president? You’re not going to send out applications, are you—and where would you even send them? So maybe you could outline that a little bit.

Andreas Korbmacher:

Well, first I'll tell you how to become a federal judge—then I'll have a head start and can decide how open I want to be with the second question.

So how does one become a federal judge? It’s an election process. We do, in fact, have an electoral body provided for in the Basic Law. It consists of the sixteen state ministers of justice and sixteen members of the Bundestag, chaired by the Federal Minister of Justice. The state ministers of justice then draw up proposals, after consulting with their respective state supreme court presidents. Members of the Bundestag can also nominate candidates, who must then secure a majority within this committee. And of course, there are political affiliations involved—the state ministers are composed as they are—but because there are sixteen of them and we have so many different political constellations across the states, it actually makes for quite a diverse mix.

My impression is that, in reality, the focus is always on quality. It’s not political orientation that’s the main consideration for individual candidates, but rather their professional expertise and their ability to get the job done. For example, you have to be a good fit personally—you have to be a team player. Yes, and then a vote is held. Another factor that plays a role is proportional representation among the states. That’s actually enshrined in the Basic Law—that the federal states are represented in roughly equal measure. By the way, that’s something I only learned about and understood once I got here—it’s important. If you only had people from Bavaria and only people from Berlin, you’d have a different sociological makeup. The way we’re composed, when you enter the Senate, you’ll have someone from Hesse, someone from Westphalia, someone from Berlin, and someone from Bavaria. Everyone is shaped differently by their background—rural, urban, religious, non-religious—and that’s a good thing, because it prevents everyone from always thinking the same way, so to speak, when it comes to these soft factors that also play a role in the administration of justice.

Well, now I’ve nicely sidestepped that. You can become chairperson by applying for the position. Then there’s an evaluation, and the president nominates you for appointment. That’s standard procedure, under Article 33(2) of the Basic Law—merit, suitability, and competence. And so far, that’s always worked out well for us without any objections.

You can only become vice president or president if the Federal Ministry of Justice deems you suitable for the position, and there’s effectively no application process here—but it’s clear that if you’re vice president, you’re someone who stands out. Of course, that attention can go even further—so you’re not guaranteed the position, but you’re among those people who are being watched. And if you also fit the age requirements—well, those are the kinds of things that matter, too. I only have a short time left in the presidency overall. But if it were even shorter, it would get difficult. Or if it’s too long—they won’t take someone who’s too young either.

Marie-Elisabeth Miersch:

Ms. Gallner also told us last week that she holds „dual power.“.

Andreas Korbmacher:

[surprised exclamation] Whoa!

Marie-Elisabeth Miersch:

She once referred to her authority as president—as the “boss,” so to speak—and also to her legislative authority. So to speak: When she issues rulings, everyone has to abide by them for the time being. What’s your take on that? Do you see it the same way?

Andreas Korbmacher:

Yes, well, as a court, we have this judicial power—or this authority to make decisions. Every panel that renders a decision has it. That is, after all, our task: to make final decisions and to unify the law. Of course, that’s a great responsibility—and also an opportunity. In that sense, adjudication naturally involves establishing or setting standards of interpretation and legal principles. If you will, that, too, is power.

As president, you serve as the public face of the institution. Internally, you have to try—to put it simply—to keep things running smoothly. My fellow judges are, of course, completely independent. They act independently in their judicial duties; I can’t tell them what to do in the slightest.

My main responsibility is actually to create working conditions that allow them to do their jobs well, and of course we need to discuss how to divide up the work and what the staff composition is. That’s my job—I have to facilitate that, and I have to lead those discussions. And so that’s also part of the role of the president. Incidentally, this also applies to non-judicial staff. We actually have far more non-judicial staff. We have a library, legal documentation, a translation service… so a large part of my job is to ensure that things run smoothly, especially in this area. The administrative office—which ensures that decisions and judgments are issued, that they are reviewed and verified—is the backbone that enables the court’s judicial activities to function effectively.

Marie-Elisabeth Miersch:

Roughly how many people are there who aren't judges?

Andreas Korbmacher:

We have a total of 220 employees, of whom sixty are currently judges—that number always fluctuates a bit. So you can figure it out: 150 to 160 people.

Marie-Elisabeth Miersch:

To wrap up, and to stay with you for a moment: What does your work-life balance look like when you’re not presiding over a court case, when you’re not keeping things running? What do you do to unwind?

Andreas Korbmacher:

"Work-life balance" is one of those terms from the generation after mine, but in practice, I do try to achieve it. I mean, I enjoy working. It’s not like I mind having to do something on a Saturday or Sunday. That’s totally fine. To make up for it, I try to leave work early on Fridays during the summer.

And if I can make it and the weather’s good: I have this little old boat at Lake Cospuden—a dinghy, basically. It’s in pretty sorry shape, and then there’s this recreational regatta where I take part and reliably come in second-to-last or last—or get towed in. But I enjoy it, even though it’s time-consuming, so I don’t get to do it very often. For now, I’m looking forward to skiing this winter. And other than that, I mean, Leipzig is great—the cultural and musical scene—and my wife and I really enjoy going to the Gewandhaus or the opera there.

Marie-Elisabeth Miersch:

We’d like to introduce a new column called „Myths in Law.“ I’ll read a few sentences from it in a moment, and we’ll see that these aren’t just myths after all. [Addressing the audience] I'll say the sentence, and you'll use the voting cards to show me whether it's true—whether you see it that way, too.

So: „The administration is still stuck in the “90s. Emails are already high-tech.” What would you say? Yes or no? I see your point—actually, I’d say it’s almost an equal mix of yes and no. What would you say about that, Mr. Korbmacher? This isn’t specific to administrative law, but can you explain why decisions on this matter are so inconsistent?

Andreas Korbmacher:

Yeah, because you’ll probably run into both. I mean, email is really the norm now, and I don’t think there are that many fax machines left, but of course there are still occasions when you need one. So I’m currently trying to re-register the car I just bought, and of course I’ve completely failed at it here, because you’re supposed to book an appointment on some online platform at 8 a.m. You just can’t get through—never. And when you look for a help section, you get redirected twice and then end up right back where you started. I mean, you don’t have all day. So then you have to show up for that appointment. There’s no way to speak to anyone. So even the digitized services really aren’t quite there yet. Should I even get started on the courts?

Marie-Elisabeth Miersch:

Yes, I'd love to!

Andreas Korbmacher:

I’m proud that we’ve managed to implement a fully electronic case file system and that we even completed it two years ahead of the legal deadline. That means we no longer receive any paper documents—the security guard shuffling files around is a thing of the past. Lawyers must initiate proceedings electronically, and everything continues electronically from there. I don’t want to say that we don’t use paper at all—we’re currently working on a case where there are really a lot of different official notices. Everyone, even the younger staff, prints them out because you simply need that tactile experience—you put them on your desk, compare them, and then take them out again. But we can all work from anywhere in the world; everything is sent to us electronically. So a panel—that is, a judicial body consisting of five or six judges working together—has full access to all parts of the case file. And of course, that all happens much faster. We send everything out electronically and receive it electronically. So we’re relatively far ahead in that regard. And as I said, if a lawyer still comes in and works with paper, it’s considered not received.

You’ll also notice where paper might still be indispensable. Some of you may have noticed this when the topic came up that you can now file criminal complaints via email, but the problem is, I then have to verify my identity again, and in the end, it somehow gets printed out at the police station anyway, and I might have to go there again after all. So that’s when you realize: all these initiatives sound so great—so digital and streamlined—but at the same time, they might actually be creating even more hurdles.

Marie-Elisabeth Miersch:

Do you ever find yourself in a situation at court where you realize that good old-fashioned paper might actually be a little faster and more effective?

Andreas Korbmacher:

So, just as I said a moment ago: For internal processing, it’s naturally different at the administrative courts—that is, at the lower courts—where they simply have people who come in wanting to file a petition, some of whom may not even be able to do so in writing. There’s what’s called the Legal Assistance Office. That means you can go there and say, „I received a letter here—what can I do about it?“ You can’t get proper legal advice there, but they’ll take it, read through it, and then say, “Yes, it’s best if you file an objection,” or you can file a lawsuit or an application for legal protection. So it’s a legal assistance desk.

This is also necessary because, as we say, a natural person should have the opportunity to obtain legal protection—and with low barriers to access. What I’m talking about now is precisely the jurisdiction of the third and second instances. And this applies above all to the professionals—that is, the attorneys.

By the way, if I may say so, professors don't count as professionals. They're among the few who aren't required to use this electronic platform for their work. Law professors can also present at our event, and they're still allowed to submit a paper manuscript.

Marie-Elisabeth Miersch:

Why?

Andreas Korbmacher:

Yes, because they don't necessarily have a law office, and they're simply given special legal privileges because they're ‚only‘ doing this as a side job.

Marie-Elisabeth Miersch:

The second sentence—I’ve phrased that a bit dramatically, but I hope you’ll forgive me: „The judiciary is independent, but in practice that’s often not the case.“ Now it’s your turn again, the audience.

Oh, one person answered „yes“—oh, wait, no—everyone said “no.” Yes, I think that was phrased in a somewhat leading way. But I think the reasoning behind it is perhaps no less interesting. I think the underlying question here is: Does the political sphere have the power to throw your work into disarray, to call you in the evening and say, “Why don’t you do it this way? Why don’t you decide this way?” Or is federal administrative law a bulwark, protected from political changes imposed by political majorities?

Andreas Korbmacher:

Based on my thirty years of experience, my answer is a resounding yes! So we’re independent, and there’s never been—I’ve never experienced being approached in any way, nor has any politician ever tried to exert influence. So what you just mentioned—a phone call or anything like that—simply never happened. And it’s my firm impression that my other colleagues have had the same experience. We have a very strong culture in this area—a culture rooted in constitutional law as well as practical norms governing the separation of powers—and this simply doesn’t happen. And it’s truly an achievement that this works this way in our democracy—that we have an independent judiciary. And I believe this applies to all areas, whether it’s criminal law, tenancy law, civil jurisdiction, or administrative jurisdiction; it simply wouldn’t occur to someone with a political mindset to do such a thing. And if they did, they’d really have to expect to get a reaction like that—that it wouldn’t go over well. So if someone were to call me, I wouldn’t even know what to do. I’d probably be perplexed and ask, „What do you want?“ And that’s—that’s a good thing.

Conversely, we don’t do that either, by the way. So we don’t ask whether the decision is appropriate or not. You have to handle the options responsibly, along with the judicial authority you have. And we’re interested in working well together. That doesn’t rule out seeking out conversations at conferences, for example. It’s also important to have mutual understanding for each other’s different roles. But as far as strict independence goes—never. So I’d say it doesn’t happen, it hasn’t happened, and I’ve never experienced it. And I’m certainly speaking for—I’d say—nine, or I don’t know, however many percent of my colleagues.

That doesn’t mean our legal rights are always respected—well, that’s a different question. So we do have this issue of enforceability; it does happen that responsibility is handed over to the administrative courts. So, maybe we’ll talk more about this—the right of assembly, for example, or those famous city hall cases that every law student knows—namely, that city halls here, including in Leipzig, but also everywhere else, are open to all political parties in accordance with their designated purpose. And then there’s this typical scenario where a far-right party—or a party on the far right, or a left-wing party, whatever—submits a request to hold its party convention there. And that’s often politically difficult for those involved—for local politicians—because they don’t really want that, and they don’t want to take political credit for it either. So the request is often denied, and then they go to the administrative court—and it’s completely clear how the decision will turn out: in favor of the applicant, because it falls within the designated purpose and political parties are granted special privileges. And in that case, you can’t take political orientation into account. And that’s the role of the administrative courts—to be absolutely clear on this and say, “No, you have to grant access.” If you don’t want to do that, then you’ll just have to change your zoning designation and specify that political parties aren’t allowed in there—but that’s not what’s intended either.

That is, after all, the role of the Federal Constitutional Court—to repeatedly make this point in disputes over the right to assembly. We do not focus on what opinions are expressed there. Rather, we focus on whether this is covered by the right to assembly under Article 8 of the Basic Law. And if that is the case, then everyone has the right to express themselves and assemble there. And that is an important task of the administrative courts.

Marie-Elisabeth Miersch:

The last question—or the last statement. We’ve already touched on who’s on opposite sides here: on the one hand, us citizens; on the other, the administration, the authorities, and the state. That brings me to the final statement: „In practice, however, it’s actually the case that administrative courts tend to rule in favor of the administration and the state.“. [Turning to the audience] What do you think? True or false? I think we have about—yes—four, five, or six people who think that's actually the case. The rest say no. Mr. Korbmacher?

Andreas Korbmacher:

So statistically speaking, I believe that the majority of lawsuits are unsuccessful. But that doesn’t mean we have any kind of bias or prejudice in favor of the administration. It’s simply a sign that, contrary to some preconceptions, the administration doesn’t perform that poorly. Statistically speaking, if you were to analyze how many lawsuits are successful here, you’d clearly see that one side is more successful than the other. But that doesn’t mean we’re biased in any way in favor of the administration. I don’t believe that. On the contrary, the administration always says, “You administrative judges, you’re keeping us in check.” Well, they don’t say it all the time, but that’s the kind of accusation they make: that we’re exercising too much control. The frequency of oversight is too high, the depth of scrutiny too intense. You don’t give us the freedom we need as an administration. So, depending on who you ask, you’ll get different answers. But statistically speaking, it’s true that the administration wins most cases—but that’s simply because we then have no grounds for objection to the decision.

Take, for example, the broad area that is now also politically contested—namely, asylum and immigration law. A great many administrative disputes are conducted there, either to obtain a specific status or simply because one must go through the process when filing an asylum application. To be able to stay here longer—that is, to maintain a temporary stay permit or right of residence for a longer period. And these are often cases where most people say the chances of success aren’t very high, but they’re pursued nonetheless.

Marie-Elisabeth Miersch:

Okay, so now we’re all cleared up and a little wiser. Today we want to talk about major infrastructure projects and species conservation, but first we need to take a step back. And I’d like to ask you again: What is administrative law? In other words, what kinds of cases do administrative courts deal with on a daily basis?

Andreas Korbmacher:

Yes, we’ve been talking about this the whole time and addressing specific issues. Essentially, one could say that administrative jurisdiction—which is a branch of the judiciary that protects citizens’ rights and oversees the government—always relates to a specific legal proceeding. So we are not a branch of the judiciary that can investigate or take up cases on its own initiative; rather, we depend on plaintiffs coming to us. We protect the subjective rights of individuals. That is the concept of individual legal protection, which we have enshrined in the Basic Law. Article 19, paragraph 4 states that if a person’s rights are violated by public authorities, they may seek legal protection—and that is essentially the basis of our work. And for that reason, we are not an objective investigative authority—unlike, say, a state prosecutor’s office—but rather we step in or examine the facts of a case when an affected citizen or, more recently, an environmental organization files a lawsuit. And administrative law covers everything related to administration—to government administration and to sovereign powers. Whether you need a permit or the opposite— you don’t have a permit and, as a builder or in some other capacity, you receive a prohibition order, or you lose your driver’s license—in other words, it covers the entire spectrum of life; that’s all administrative law. And in those cases, you can have the measures taken by the authorities reviewed in court. And that is our job.

Marie-Elisabeth Miersch:

Let’s stay with the topics of everyday life for a moment to outline this administrative legal process. I mentioned construction projects. Now, let’s imagine you said you also enjoy taking a little boat out on Lake Cospuden. Now I’m imagining that I’ve bought a plot of land on Lake Cospuden. So let’s assume: There’s this plot of land, and it now belongs to me. I’d like to build on it. A little castle, a small turret, a swimming pool, maybe a few Corinthian columns—whatever you can imagine. I’ll apply for a building permit from the building department here in the city of Leipzig. And they’ll say—by which point I’ve already hired an architect and taken care of everything else— They say, “Forget it—you’re not getting that building permit.” Then I can—they mentioned the right to object—I don’t have to file a lawsuit right away; I can first say, “I object; now please review this again—as the administrative body, please re-examine your decision.” And they say, “Yes, but this objection will also be rejected.” And then I have to file a lawsuit with the administrative court. How do I get to you from there?

Andreas Korbmacher:

So far, so good.

Marie-Elisabeth Miersch:

Ah, thanks—my training really paid off.

Andreas Korbmacher:

However, if you were to build a small castle on Lake Cospuden, I’d also give you some free legal advice right away: it has little chance of success. You’re likely in a non-urban area. That means it’s not zoned for such a structure, and things will get complicated. You’d first have to go to the administrative court, which is the court of first instance. There, the case will be decided either by a single judge, if the case is straightforward, or by a panel consisting of three professional judges and two lay judges. If the panel consists of three professional judges and two lay judges—that is, the full panel in all its glory—the case usually ends there after the first instance. Because to proceed to the second instance—the Higher Administrative Court—you can’t just go there on your own. The Administrative Court must first determine that the matter is of fundamental importance—specifically, whether the little castle can be built there. Only then can it grant leave to appeal to the second instance. Most of the time, however, they say no—it’s not a matter of fundamental importance; it’s just one of the many people building little castles on Lake Cospuden. Then you have the option to file a motion to allow the appeal. So you say, “But I’d like to go to the second instance, please,” and then the second instance must decide whether to grant it. If it grants the motion, the case proceeds, and you’re at the Higher Administrative Court. In principle, this involves a full review of the law and the facts all over again. An administrative court might then say, “Oh, no, that’s not an ‘outer area.’ We believe it’s an ‘inner area,’ and it fits in—there are already two small castles there.” And then, if they’re lucky, they’ll get the building permit. But then the authority, in turn, might say they don’t agree with that either—that the applicants have confused the concepts of “outlying area” and “inner area,” and that this is a term defined by federal law. And then the applicants can try to appeal to us. And that appeal must either be admitted by us. Or else a complaint against denial of leave to appeal is filed—which is also a legal remedy—in an attempt to tell us that this case is of fundamental importance. The distinction between “outer area” and “inner area” needs to be clarified again. That’s federal law. We ask the Federal Administrative Court to look into this.

Then we'll look into whether that's the case. If it is, we'll allow it. And then, a year later, we'll negotiate your case.

Marie-Elisabeth Miersch:

So what exactly is your job there?

Andreas Korbmacher:

Exactly—I’ve already described this in great detail, and as we’ve seen, there are several hurdles to overcome. That’s true—we have three levels of court. The first two are what are known as trial courts, where the court can go out and inspect the sites. They can file motions for evidence or make suggestions. As I mentioned earlier, the court can, on its own initiative, review all kinds of cadastral maps and building permits—in other words, simply clarify what’s actually there.

At our court, the third instance, we deal exclusively with legal issues. That is the scope of appellate review. We reason that two lower courts have already examined the case, and we then focus solely on the legal issues. That is our role as the Federal Administrative Court: to ensure, throughout Germany, that the law is interpreted and applied as uniformly as possible. We merely review, based on the findings of the lower courts, whether the law was applied correctly.

Marie-Elisabeth Miersch:

Yeah, now we have a good overview. Yeah, I think that’s really, really great. I think we’ve already finished the first semester of administrative law. Then we start asking: Did the Higher Administrative Court violate federal law by assuming that Section such-and-such is interpreted in a certain way? So that’s a good starting point—you have to be careful there, or else you’re basically out of the game. So we’re really discussing legal issues, based on what the lower court ruled. And then we’ll examine whether that’s correct in our view or not. And it might get even more interesting if you’re also the court of first instance.

Marie-Elisabeth Miersch:

Could you start by briefly telling us, in general terms, which areas you are primarily responsible for?

Andreas Korbmacher:

So, initially, it was really intended for very few people. That has expanded over the last thirty years. Reunification was a major factor. The transportation projects related to German reunification and the lack of administrative courts in the new federal states led lawmakers to say, “This has to happen quickly.” “This has to happen really fast. It also has to be done reasonably well, and we can’t entrust this to an administrative judiciary that’s still being established—that’s not an option.” And so they decided, “Then we’ll assign this to the Federal Administrative Court.”.

There’s the wonderful 1990 Act on Accelerating Transportation Planning, and it specifically states that the Federal Administrative Court has jurisdiction over these important east-west transportation links. And now here’s what happens time and again: the regulation proved its worth. Then, after five years, it was evaluated, and people said, “This isn’t so bad after all. It actually works pretty well and quickly.” And then they expanded it, saying, “Let’s include the federal highways—all major federal highways—all major rail connections, and waterways; we’ll transfer jurisdiction over them to the Federal Administrative Court so that we have jurisdiction there as both the court of first instance and the court of last resort.” We always resist this a bit—it can’t be that way; we can’t become the nation’s administrative court; that simply isn’t possible. That’s not our role either, because our actual function is to review legal matters as a court of appeals. But within this list of important decisions, that’s fine, because—and perhaps we’ll come back to this— —take the Fehmarn Belt project, or now LNG terminals, or whatever else—it’s either a matter of great urgency or involves very, very large proceedings where—I don’t want to call it an administrative court—but it’s simply a question of resources and specialization, and we’re able to handle that. So I can understand that, because it simply doesn’t make sense to send something like that through two instances and then all the way up to us. Then you’re already looking at another six or ten years of proceedings just in the courts.

Marie-Elisabeth Miersch:

Well then, let’s stick with the Fehmarn Tunnel. Northern Europe’s largest infrastructure project. The tunnel is intended to connect Germany and Denmark, become the world’s longest immersed tunnel, and—as I learned from the website today—be completed in 2029.

Andreas Korbmacher:

Already?

Marie-Elisabeth Miersch:

Yes, the website looks great—and inspiring, too. The construction was approved by the Danish side in 2015; they were ready to go and said, “Let’s go!” But here, it took until 2020 for your court to rule on the final lawsuits regarding the project. Why do such large-scale projects take so long here? Is it just that we can’t agree on things in Germany, or what’s the reason?

Andreas Korbmacher:

So if you take this project, yes, that’s probably our mindset—or the other Danish mindset. What Denmark did was pass it as a law. They said, “We’ll bring this before the Folketing and pass it as a law,” and there’s only very limited legal protection, and the whole process simply took much less time.

In Germany, we can also do this in certain exceptional cases—it can even be planned by law—but the Federal Constitutional Court has put a stop to that and ruled that such planning is not actually the responsibility of members of the Bundestag. Rather, it is the responsibility of the administration. With the entire hearing process and everything that goes along with it, as well as the preparation of expert reports required for this, the Bundestag is simply not designed to handle such matters. That is why administrative preparation is needed, and under our system of separation of powers, that is the responsibility of the administration.

Only in very exceptional cases—perhaps with the Fehmarn Belt—could it have been done. But it probably wouldn’t have helped speed things up for us either, because they have to do it in a legally sound way. So, the substantive requirements remain. I don’t know exactly how things went in Denmark. They’ve made a lot of progress because it’s primarily a Danish company, or because there’s a very strong interest in Denmark in building it. It’s such a different mindset—in Denmark there were about forty objections, while here there were 12,000. In Denmark, the environmental groups said, “Build this tunnel; it’s much better than a bridge.” Here, the environmental groups said, “Nothing at all—or if anything, then a bridge.” So it’s simply a different mindset. More consensus-oriented, really. It’s also simply driven by vested interests in Denmark, Sweden, and elsewhere—there’s enormous interest there, and they’re the ones paying for it all. Here, the interest isn’t as great, and the opposition has grown much stronger.

Marie-Elisabeth Miersch:

Given this resistance, what interests of the citizens are at play here? Are they economic interests as well? Ferry companies were also involved, after all. From an environmental protection perspective, what kinds of interests come into play with such large-scale construction projects?

Andreas Korbmacher:

Well, first of all, there are the environmental organizations, which certainly play an important role—and I think it’s a good thing, in principle, that they have the ability to scrutinize projects and act as advocates for nature. Of course, this slows things down a bit, but in any case, it also leads to higher-quality planning. So I think we’ve seen over the past few years that the work of environmental organizations and the ability to file lawsuits have already led to greater consideration of certain environmental aspects. Property owners can file lawsuits—and this is particularly common here, where people say, ‚No, I don’t want that here.‘ So this “not-in-my-backyard” mentality, I believe, is widespread. We see this time and again. Incidentally, this also applies to municipalities—yes, they, too, oppose all sorts of things very vehemently. This is then also driven by local council politics.

Ultimately, regarding what you brought up here—yes, economic interests, namely the ferry companies—they really had no interest in a tunnel, which is understandable. After all, a tunnel doesn’t exactly boost business for ferry companies. Incidentally, it was the Danish ferry companies that filed the lawsuit.

Marie-Elisabeth Miersch:

On the FAZ Einspruch podcast, you said that environmental organizations are actually regular clients of yours. You’ve already hinted at that here as well—that environmental organizations can also file lawsuits in Germany. And what role does your court now play in environmental protection in Germany? What role do you play in that regard?

Andreas Korbmacher:

We review major decisions and planning approval rulings, and we continue to develop the law. We’re constantly dealing with new legal materials. That’s also what makes it so exciting—there are always new developments in this area. We have to try to strike a reasonable balance—including when it comes to fact-finding—between too much and too little. This relates to the issue of the intensity of oversight that I mentioned earlier: Are we delving too deeply into matters, demanding too much from the authorities, or scrutinizing things too closely… If you ever come to one of our oral hearings and take a seat in the back, you’ll have about eight or ten hours ahead of you during which you’ll hear all sorts of things about various bird species and other animals, noise emissions, the thickness of concrete, or whatever else. So what we’re examining is really, really intensive.

That’s always a question, but otherwise we have the statutory duty to review the legality of these decisions, and environmental organizations, property owners—whom I just mentioned—as well as other affected parties can file lawsuits. What’s particularly interesting in the environmental sector is that we have jurisdiction both at the first instance and as the court of last resort. So we can shape the process, investigate the facts, and simultaneously resolve the legal issues. When a case goes through the various courts, we’re always reliant on the lower courts to establish the facts. And that sometimes meant that, if we had a different legal opinion, we had to remand the case—which makes the process very cumbersome. We don’t have that in this proceeding.

Marie-Elisabeth Miersch:

I would use it again as a poll question. [Addressing the audience] Do you think we need more direct participation in administrative procedures—that is, direct participation by citizens?

I only see a few "yes" votes, but actually the majority are "no." Maybe because they also feel like this has all been going on for so long anyway…

What's the situation here? When, if at all, should the public be involved in this way? Does it even need to be involved at all?

Andreas Korbmacher:

So, in almost all of the major projects we’ve just discussed, the public must be involved—and is involved—and that’s as it should be. This is also required under European law, so it’s not possible without public participation. The question is how thoroughly this is carried out—and occasionally certain deadlines are shortened—but at its core, public participation is an integral part of the process. The problem with this, to some extent, is that public participation—in the sense of a public hearing—doesn’t mean that the authorities will then make a decision exactly as requested. Of course, this public participation during the public hearings leads to many suggestions being made, many issues being discussed very, very thoroughly, and concerns being addressed. Plans are adjusted. So if someone points out that a certain aspect will block their driveway or raise other specific issues, the authorities take note of it. That’s when these public hearings are truly effective, because the planning authority will say, „Yes, okay, I’ll take another look at that and try to find a different solution.“ I believe it’s rare for the project as a whole to be blocked.

Marie-Elisabeth Miersch:

With that, you’ve actually already answered my next question. The subtitle of our event today is „How Does the Federal Administrative Court Adjudicate Our Rights Against the State“—could you briefly explain the situation regarding fundamental rights? I notice this quite often in our work as well—that when it comes to fundamental rights, people know there’s the Federal Constitutional Court and that they can file a constitutional complaint there, but when it comes to all these little things we’re talking about, where might our fundamental rights actually come into play?

Andreas Korbmacher:

Pretty much everywhere. So that’s also a misconception. The same applies to the other supreme federal courts, such as the Federal Court of Justice or the Federal Labor Court. Fundamental rights are, after all, practically universal. We can’t do almost anything without exercising a fundamental right. My favorite example is horseback riding in the woods. Every law student knows this one. There are two “horseback riding in the woods” rulings by the Federal Constitutional Court. Someone filed a lawsuit because horseback riding in the woods had been restricted. And the Federal Constitutional Court asked itself: Is this actually protected by fundamental rights, or is there no such I don't care about the details, so, meaning a de minimis threshold? And he said: „No, even riding in the woods falls under the general freedom of action, and one can argue that this regulation is disproportionate and infringes upon the fundamental right to freedom of action and the free development of personality.“ So, there’s practically no area that isn’t underpinned by a fundamental right, and that applies to us as well. Marriage and family in immigration law, civil service law, property rights, the right to freedom of occupation—these are all fundamental rights, as is the right of assembly. This applies to almost all decisions we have to make as an administrative court—for example, regarding your building lot, which falls under the freedom of property; or if you fail an exam and are not admitted to a university, Article 12 of the Basic Law applies. Article 33 guarantees civil servants equal access to public office; freedom of assembly if you wish to protest; freedom of trade; and the right to engage in economic enterprise.

So, as you can see, there’s actually always a fundamental right at the heart of it. And there’s that oft-quoted statement by one of my predecessor’s predecessors: “Administrative law is constitutional law put into practice.” That really captures the fact that virtually all of our decisions have a constitutional component behind them. That’s why we deal extensively with constitutional law. The idea that only the judges in Karlsruhe do that is completely wrong, and in labor law, you have the freedom of association. In tenancy law cases, you always have Article 14 of the Basic Law or other freedoms—that is, fundamental freedoms and fundamental rights. This is particularly pronounced here at the Administrative Court because we’re always dealing with this state-citizen relationship.

Marie-Elisabeth Miersch:

I just mentioned a process that took a very long time. I'd just like to briefly mention at least one more that works a little faster.

Andreas Korbmacher:

Well, the Fehmarn Belt proceedings took a remarkably short time for us—just a year and a half. That was a massive process, and you really can’t make it much faster than that. The entire administrative process often takes much longer. Or take the Dresden Railway in Berlin—the administrative process there took 17 years. Compared to that, two and a half years of court proceedings isn’t that long. That was a good clarification.

Marie-Elisabeth Miersch:

I also wanted to say a few words about the LNG terminals—specifically, how, in the wake of Russia’s war of aggression, people began to consider that liquefied natural gas might be a good idea. And then these facilities were approved in record time—I believe in about six months. Normally, such procedures take years. So how were these legal hurdles—which we actually have in place because we’ve acknowledged that there’s a good reason why these processes sometimes take so long—overcome so quickly?

Andreas Korbmacher:

Yes, well, it’s a pretty good example of what’s possible. It’s completely separate from any judgment as to whether one thinks it’s good or bad that we’re importing LNG. But this was a political decision—a decision by Minister Habeck’s ministry—which stated that, as a replacement for the lost Russian oil, we must build terminals now and quickly so we can unload liquefied natural gas. These don’t exist in Germany—and never did—because liquefied natural gas wasn’t politically desirable either. After all, it’s often fracking gas, and fracking is banned in Germany. So there was simply no need to have that kind of infrastructure. And now we were simply in an emergency situation: winter, war. No more gas. And that’s when it became clear that by pooling resources and enacting the appropriate legal regulations, something like this can actually be implemented very quickly. The LNG Acceleration Act provides for drastic measures to shorten the public participation process. So the deadlines are reduced to one week instead of two months. Everything is published electronically—that’s a drastic change. And the second, most important thing that was done was waiving the environmental impact assessment. So these large-scale projects could then proceed without such a formal assessment—while, of course, complying with the substantive requirements—but without this assessment requirement, which often simply takes a year to complete for a terminal of this size, that is, until they carry out this entire comprehensive environmental impact assessment. We considered this to be in compliance with European law. There’s an exception in European law that allows for this. The European Commission also saw it that way. And then they have to do one more thing: they have to really invest manpower in the authorities. And then it works. So they’ll be working day and night, and then they’ll have to hire lawyers. These lawyers will assist them as project managers—which is also permitted—and then they’ll manage to implement something like this within the timeframe, while also complying with regulations. I’m familiar with these decisions, so this isn’t just a piece of cake—it’s a truly significant achievement—and then construction went ahead, 24/7, around the clock, to get it finished. And that also shows that you need this kind of effort and this kind of clear legislative decision. And we can’t do that in every area. We do have another clear legislative decision that’s actually effective, and that’s the provision in Section 2 of the EEG—the Renewable Energy Act—in favor of renewable energies, namely wind power and photovoltaics. It states that these projects are in the overriding public interest and serve public safety.

And so that really is a Game Changer, because what we need are clear legal guidelines that specify—at least for the foreseeable future—whether this is the most important thing we have. And then approval processes can simply be expedited. This takes precedence over historic preservation, species protection, and certain other requirements. And that will actually be effective. In the past, you—or rather, your court—have set high standards for species protection as well.

Marie-Elisabeth Miersch:

Does what you’ve just described actually lead to a meaningful acceleration of proceedings in your court, or could one also say that it somehow undermines environmental law because it shortens the process? Or what does “shortens” mean? Does that mean this balancing of interests no longer takes place at all?

Andreas Korbmacher:

So it’s still happening. You’ve raised a point that has, in fact, over the past two years, —I don’t want to say confused, but certainly perplexed—that suddenly certain standards we considered sacrosanct no longer apply—that we’re under immense pressure to act quickly, and that arguments like „overriding interest“ are being used to sideline certain other interests and standards. It’s simply a matter of compromise. In the Federal Nature Conservation Act, because they said ‚species protection‘—which, by the way, wasn’t something we invented on our own, but rather happened with the active assistance and guidance of the European Court of Justice, which has interpreted European species protection regulations very, very strictly. And then it ruled, „This also applies to every single highway project.“ If you had asked our colleagues thirty years ago, they would have said, „Excuse me? That’s nonsense.“ But no, the ECJ saw it that way. We followed that ruling; we had to follow it.

What has been done now is that, for example, the Federal Nature Conservation Act specifies that certain distance criteria—1,000 meters, 1,500 meters—apply to certain bird species in relation to wind turbines. And this is no longer a matter for the courts or experts; rather, the legislature has decided it. We are therefore bound by it. We can only say that it’s unconstitutional—but it isn’t. Or we can say that it violates EU law, which is… but I’ll refrain from commenting on that—I’m holding back simply because this issue could eventually come before us. But in principle, here too we see how democracy—the parliamentary legislature—says, „Now we’re cutting through the red tape.“ And we’re simply determining, with regard to the red kite, at what point it becomes dangerous for it. And that’s the beauty of politics—it can simply make that determination, even if experts may see things differently. But that’s just a decision, a compromise, a balancing of interests. And that’s actually where it belongs. It’s not the role of the courts to decide such matters; rather, it’s simply a decision that the political legislature—and that is, after all, the Bundestag—makes.

Marie-Elisabeth Miersch:

Has that worked out? So, do you think policymakers made the right decisions regarding the red kite—that they said, „Oh, it always follows this or that flight path, and that’ll be fine…” So I’m wondering how you can codify that in a law—how can you know exactly how far it flies and that it’ll fly around that wind turbine?”

Andreas Korbmacher:

Well, we’ve been dealing with this as courts for years and have always tried to identify criteria for determining when there’s likely no danger. So it’s not exactly an unknown concept. Here, the general rule is that if the next—let’s say—Horst, or the next sighting of such a bird, is more than 1,000 meters away, then we simply assume that it might fly in the other direction and won’t necessarily head straight for the wind turbine. So the risk is no longer, as we say, significantly increased—it’s simply there; they do sometimes die.

Marie-Elisabeth Miersch:

So, self-imposed debt, then. [Laughter from the audience]

Andreas Korbmacher:

You just said that, but essentially it comes down to weighing the options and deciding that we can't go any further in protecting this species.

Marie-Elisabeth Miersch:

Thank you very much for your insights on species conservation and the legal proceedings. One final topic I always find very interesting—and another case currently before the court of first instance—is the bans on associations being handed down by your court. Most of you probably remember that Federal Interior Minister Nancy Faeser banned the magazine *Compact*—which is, in part, far-right—last July. And less than a month later, the Federal Administrative Court had already ruled. To put it bluntly, the ban was provisionally overturned. We had the opportunity to speak with your judges at the court last year, and one judge who was involved in that decision—the “Compact” decision—told us that they spent night after night poring over those magazines, trying to determine what their defining characteristics were. That certainly deserves recognition. We also learned last week that a judge doesn’t have a typical 40-hour workweek. Nights are also used, so to speak, for such decisions, and it’s worth noting that word quickly spread in the media that the ban shouldn’t have been allowed. But if you look at the ruling, it still states that the media were allowed to be seized, as well as the weapons found there. I have so many questions about this. First of all, why did you have to deal with this issue—the banning of associations? We’re familiar with the banning of political parties; that’s handled by the Federal Constitutional Court. We’re also familiar with the Office for the Protection of the Constitution when it comes to associations. Why were you involved in these cases?

Andreas Korbmacher:

For the reasons we have already discussed—because this is a measure taken by the Federal Ministry of the Interior, a prohibition order, a ban based on the Associations Act, that is, the Public Associations Act—the Compact editorial team was also included in this. An association within the meaning of this law can also be a business entity, such as a limited liability company (GmbH). So this is not a matter of civil law governing associations, but rather of public law. And that, in turn, is protected by fundamental rights—specifically, Article 9 of the Basic Law, which guarantees freedom of association. Everyone has the right to form an association. Consequently, associations may only be banned under the conditions specified in the Basic Law. And the Associations Act, in a sense, implements those provisions.

And then the legal question that had to be decided was whether the conditions for such a ban were met—specifically, in the preliminary injunction proceedings. As you said, after one month. So the Federal Minister of the Interior issued this ban on the association and declared it immediately enforceable. I’m not entirely sure whether it’s immediately enforceable by law or whether immediate enforcement must be specifically ordered. That means an objection has no suspensive effect, nor does a lawsuit. And that’s why you have to seek preliminary injunctive relief and have the court review whether this immediate enforcement is lawful. And that was the proceeding we’ve had so far. And the question there was simply: Are the facts of the case established? The facts were that the Federal Ministry of the Interior itself stated that there was no criminal content involved. In other words, no criminal offenses. Then it would have been simple. But they didn’t say that themselves. All the state prosecutors’ offices involved stated that the content is not criminal. But—and this was the argument—it violates the constitutional order. That is another legal element that is also enshrined in the Basic Law and in the Associations Act. And that, in turn, is a relatively high hurdle because, if you’ve read the decision, the Sixth Senate cited the case law of the Federal Constitutional Court in great detail and highlighted the breadth of freedom of discussion granted by the Basic Law. It explicitly states that we are also allowed to criticize the state. Freedom of expression also serves the purpose of being provocative, and one is also permitted to advocate for a change to the constitutional order. This is all established case law from the Federal Constitutional Court, which, incidentally, dates back to the era of the “Radikalenerlass” [Decree Against Radicals]—that is, from a completely different context, where such attempts may have been made from the other side. But it’s a fact: constitutional law scholar Möllers has stated that there is no obligation for individual citizens to be loyal to the Constitution. And one can also say, “I actually want to change something”—even to the point of constitutional amendments. What an association is not permitted to do constitutes the core of our democratic basic order. And that includes human dignity and other very important elements; if one aggressively and combatively opposes them, then one places oneself outside this consensus and actively works against the constitutional order. And this high threshold is what must be examined in this “Compact” proceeding. And there, the 6th Senate stated—after this late-night review (which they will have balanced out again during the day)—that they concluded this was not yet sufficient for them. It must, in fact, be influential. It must be a polemic. It’s obvious right away—we even said as much over coffee—that *Der Stürmer*, those dreadful Nazi hate rags, must be subject to a ban; they will, of course, be banned. That would be an immediate case where one says, “We don’t even need to look at this for long.” If that’s not the case—and they determined as much by looking into it, having these *Compact* issues presented to them—they said, “There are isolated articles, but do they really define the character of the magazines and journals?” And they had their doubts, which means—as is quite normal—they’re allowed to continue for now. And that will now be decided in the main proceedings, I believe in September or July. So they could have decided even faster; the 6th Senate actually wanted to decide even sooner, but the parties involved weren’t quite ready yet. So in this case, we were a bit quicker.

Marie-Elisabeth Miersch:

Should the, um, way court decisions are reported on perhaps change as well? Based on what I’ve seen around me, I can only say that many people thought the Federal Administrative Court had just ruled on this. End of story. Of course, you can’t expect either the media or ordinary citizens to know the difference between interim relief and the main proceedings, but was that communicated effectively? Do you think everyone understood it that way?

Andreas Korbmacher:

So we shouldn’t delude ourselves about this. I think you could bring in people who are much more eloquent to discuss this—it’s complicated, and you can only simplify it to a certain extent, so we’ll just have to live with some misunderstandings. Sure, the Federal Administrative Court has ruled, and its initial statement was „Hold on! We need to take a closer look at this, and based on our preliminary assessment, we can’t say with sufficient certainty that this order is lawful—given the facts we have at this time.“ And that’s where these fundamental rights come into play again, because this publishing house produces a news publication, and that, in turn, involves freedom of the press and freedom of expression—and I think we have to be careful not to call such fundamental freedoms into question too quickly by taking certain measures. To reiterate: Whether I like them or not is not our concern as administrative judges; rather, this is simply a matter of principle, because the situation can swing one way one time and the other way the next.

Now, in Leipzig—and you may be familiar with Indymedia—this was the first case in which this left-wing platform was banned under the association ban. And if you’ve been following the press coverage, it was quite interesting that the Federal Administrative Court suddenly received vehement applause from a corner that doesn’t often tell us, „That’s great.“ Because the point is that a measure like this is dangerous—it affects freedom of the press. And then you can look again at Poland or anywhere else. It’s important that we protect these fundamental freedoms in the spirit of a liberal democracy and interpret them broadly when in doubt.

Marie-Elisabeth Miersch:

Thank you very much. One very last question. I think we’ve made good progress here. Which case from the last few decades of your career in the judiciary will you always remember—or can you even recall one right now?

Andreas Korbmacher:

Oh my gosh, I thought you were going to say, "Did you make the wrong decision or something?"

Marie-Elisabeth Miersch:

Oh, right, that's true—good question. [Laughs]

Andreas Korbmacher:

By the way, I’m also someone who’s sometimes surprised when colleagues say, „I can’t think of anyone.“ That you think about it later and say, “Oh, I don’t know—on various levels, whether dogmatic or whatever—was that really right?” So I think it’s important to have that doubt—it’s more likable than going through life saying, “Everything’s great.” And that’s actually part of a judge’s character: always reconsidering things and carrying out one’s professional duties while allowing for self-doubt.

Yes, for me personally, the most life-changing event was probably those diesel driving bans in 2017–2018—simply because the scale of it was so unforeseeable. Or rather, it was foreseeable, but I somehow didn’t quite expect it to affect me on such a personal level. Like, suddenly seeing my face in a major tabloid with the caption: „Is this judge banning diesel?“ And the „nice“ inquiries from the press office—“What kind of car does he drive?” and things like that. Since it really hit close to home, it certainly sticks in your memory. And that was definitely a case where they really felt the full impact of the situation. I ended up shutting it out by simply not reading it. That works, too. That’s also part of our job. You have to be able to do that—to say, “I’m not interested in that right now.”.

Marie-Elisabeth Miersch:

That's very disciplined.

Andreas Korbmacher:

Well, you have to do that too if you’re working in other areas, like major criminal cases. As for press coverage, I don’t want to… well, I admire my colleagues there, too. It’s always about the bigger picture.

Marie-Elisabeth Miersch:

I can certainly imagine that, Mr. Korbmacher. I thank you from the bottom of my heart for this valuable conversation and for the time you’ve taken for us. You’re very welcome. And, of course, a heartfelt thank you to the audience for your interest in the rule of law and the Federal Administrative Court, which has brought so many of you here today. Of course, this event could not have taken place without the entire team at the Forum Recht Foundation, so a big thank you to them as well!