Authorization to intervene
An engagement authorization , power norm , enabling provision or enabling rule is a rule of law that the administrative and judicial the engagement in a basic law allows. In principle, such a power can only be contained in a formal law ( parliamentary law ) because interventions - even if they are permitted under constitutional law - are subject to a law .
Something different only applies to the general freedom of action , which can also be restricted by norms that are subject to the law (e.g. statutory ordinance or statutes ).
A state measure that interferes with the basic rights of the citizen without legal authorization is illegal .
Differentiation from the task assignment norm
Because of this fundamental legal significance, the authorization to intervene as a power standard must be clearly distinguished from a mere task assignment standard. This means that the fact that an authority is assigned a certain task by law does not say anything about whether it may intervene in the fundamental rights of citizens in order to fulfill this task. The inference from the task to the authorization norm is inadmissible.
The distinction becomes clear, for example, in the general police clause (here Police Act Baden-Württemberg):
"The police have the task of warding off dangers from the individual and the community that threaten public security or order, and to eliminate disruptions to public security or order insofar as it is in the public interest."
"The police have to take those measures within the limits set by the law in order to carry out their tasks, which they deem necessary according to their due discretion."
While Section 1 only says what the police are supposed to do ( averting danger ), Section 3 (along with other norms) states which measures restricting fundamental rights they may take to fulfill these tasks (namely those that it deems necessary according to their due discretion). For example, the police can go on a patrol car ride that does not affect anyone's fundamental rights based on Section 1 PolG. A dismissal, however, as an encroachment on fundamental rights, must also be based on § 27a PolG-BW.
The Federal Constitutional Court is, however, more generous when it comes to encroachments on fundamental rights through information (official warnings). Then - what the literature mostly rejects - an assignment of tasks as an authorization to intervene should suffice.
Certainty
It follows from the principle of reservation in the law that interference with fundamental rights is reserved for parliament. Parliament must not evade this by leaving the decision on the prerequisites and severity of the intervention to the administration with broad powers to intervene. The reservation of the law therefore requires a sufficient certainty of the authorization to intervene ( certainty requirement ).
This is not a problem when it comes to special authorizations that are closely tailored to a specific application (such as the standard police measures ).
General clauses like in the example above are problematic. The general police clause is therefore only considered to be constitutional because, on the one hand, there are more specific authorizations to intervene for typical measures and, on the other hand, permanent jurisprudence has specified the general clause. Ultimately, averting danger can not do without such a catch- all, because it is also about being able to react appropriately to unexpected and new dangers.
