Derogation legislation

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With the reform of federalism , Article 72, Paragraph 3 and Article 84, Paragraph 1 of the Basic Law (GG) introduced the power to deviate from legislation . It states that the federal states can provide for regulations that differ from certain federal regulations of competing legislation or in the area of ​​administrative regulations in relation to the respective federal law. If both the federal government and a state have issued a corresponding legal norm , the later of the two regulations applies in accordance with Article 72 (3) sentence 3 of the Basic Law. The deviations are indicated in the Federal Law Gazette.

Subject of the derogation legislation

According to Article 72, Paragraph 3, Sentence 1 of the Basic Law, the following areas of law fall under the jurisdiction of the Länder:

Legal issues

With the introduction of the deviating legislative competence in the constitution, various questions arose in the legal literature. Among other things, it is discussed in which form of regulation the states can issue deviating law. The wording of Art. 72 Para. 3 provides that the Länder can deviate by “law”. It is therefore controversial whether the deviation can only take place in the form of formal laws or whether the legislature can also deviate by authorizing executive bodies to appropriate regulations in accordance with Article 80 of the Basic Law. It is also discussed whether deviating regulations of the federal states have to be marked by expressly naming the federal legal norm from which they deviate. The background to this consideration is the fact that the functioning of parallel legislative competences was alien to the Basic Law until the introduction of the derogation legislation.

Due to the discussions about a possible labeling requirement, the federal government and the federal states have agreed to add appropriate footnotes to deviating state law (e.g. in Section 30 of the Federal Nature Conservation Act ) in legal databases.

Since the competence titles are only partially provided with so-called non-conformance brackets, different assessments are made as to whether z. B. the spatial planning only includes the spatial planning of the federal states or an unwritten non-deviating area exists. Otherwise, the states could also provide different regulations for the federal spatial planning, which is largely viewed as incompatible with the purpose of the regulation.

literature

  • Hans Meyer: The federalism reform 2006 - conception, commentary, criticism . Duncker & Humblot, Berlin 2008, ISBN 978-3-428-12693-4 .
  • Hanno Knippenberg: The competency bases of the German and European spatial planning . Cuvillier Verlag, Göttingen 2010, ISBN 978-3-86955-533-1 .
  • Rajiv Chandna: The right of derogation of the federal states according to Art. 72 Abs. 3 GG in the federal competence structure . Wissenschaftlicher Verlag, Berlin 2011, ISBN 978-3-86573-643-7 .
  • Caroline Schulze Harling: The substantive right of deviation of the states . Peter Lang, Bern / Frankfurt am Main 2011, ISBN 978-3-631-61846-2 .
  • Marcus Hahn-Lorber: Parallel Legislative Competencies . Mohr Siebeck, Tübingen 2012, ISBN 978-3-16-151686-3 .
  • Alexander Petschulat: The regulatory powers of the states for spatial planning after the federal reform. Problems of derogation legislation. Lexxion, Berlin 2014, ISBN 978-3-869 65-268-9 .
  • Isabelle Béatrice Krapp: The competence of the states to deviate in relation to the primacy of federal law according to Art. 31 GG . Scientific publishing house, Berlin 2015, ISBN 978-3-86573-850-9
  • Petschulat, Alexander: State constitutional law as the location of the deviation legislation. In: NWVBl 2016, pp. 188 ff.

Individual evidence