As budget law is called the law of the Parliament of a local authority , the budget of the relevant local authority, usually for the following calendar year, to be determined. The budget right is also called budget right .
Budget law is a core competence of the legislature as an essential element in the system of separation of powers . The right to budget gives parliamentarians elected by the people the opportunity to control the activities of the executive by allocating or refusing (within the framework of what is constitutionally permitted) the funds required for their work .
Function in the context of the separation of powers
Control and control of the executive
Budget law already played a historically significant role in the context of the American Revolution (from 1763). The settlers in the British colonies in North America criticized their lack of representation in the British House of Commons . Under the slogan: " No taxation without representation ", the then thirteen states of the newly founded USA declared their independence from the British monarchy. The slogan emphasizes the importance of the taxpayers' right to have a say in taxes on them either themselves or through representatives elected by them , as an element of popular rule . As early as 1628, the British Petition of Right determined that Parliament had the right to pass binding resolutions on the type and amount of taxes, which is considered an elementary part of English constitutionalism.
Power of disposal over the state budget played a similarly important role in the French Revolution . The structural deficit of the French state budget, which had become chronic, made it necessary to convene the Estates General in 1789 , which had not been convened since 1614. Because on July 16, 1787, the Parliament of Paris had declared that only the Estates General were authorized to raise new taxes. The first National Assembly of France emerged from the Estates General . The budget law of the French National Assembly, which is dominated by the bourgeoisie, is also of particular importance because, before the French Revolution, aristocrats were exempt from paying taxes, which is incompatible with the principle of equality before the law .
Even today, budget law still plays a central role in the system of separation of powers. Particularly in presidential systems of government in which MPs do not have the option of voting out a state president who is directly elected by the people and who is also the head of the executive, the ability to generate and control state financial flows is a central power instrument of the legislature.
Defense against payment obligations of the state through courts
At the present time, the question of the extent to which Parliament can be forced to create budget estimates for certain tasks and to decide on expenditure at a certain minimum level plays a central role. In particular, the question arises as to whether individuals or institutions can legally enforce certain state services based on (alleged) participation rights . The question also arises as to whether courts are entitled to oblige the executive to provide services for which there are (yet) no budget estimates (in sufficient amounts).
Payment obligations based on individual participation rights
In Germany it is undisputed that everyone who is here legally has a right in principle to be able to lead a life above their subsistence level. For this reason, the subsistence level may not be taxed on income tax, and people in need are entitled to state social transfers within the framework of the principle of subsidiarity , unless they can free themselves from their plight or other persons and / or institutions are obliged to make payments to their own Secure maintenance .
According to a judgment of the Federal Constitutional Court of July 18, 1972, the duty of the state to make expenditure is subject to the "reservation of the possible in the sense of what the individual can reasonably demand of society", i. h. that in the context of the above Restrictions due to the welfare state requirement no one can force state or municipal authorities to adopt budget estimates that the decision-making bodies consider inappropriate or too high; unless there are corresponding legal provisions, which, however, can be changed by the legislature if they are “own” regulations (eg in the case of a state budget, state law). Reason for the above The verdict of the Federal Constitutional Court was constitutional complaints from those willing to study with a university entrance qualification, who took the view that the state should create more study places and should not exclude them from immediately starting their studies in their chosen subject. In principle, according to the court, it is not individuals who are willing to file a lawsuit who should determine how much money the state spends on certain tasks, but the elected representatives.
Causing costs to the state through judicial orders
An example of how the German legislature protects itself from assigning additional tasks to the executive by the courts and thus from additional expenses is a change in Book Eight of the Social Code (SGB VIII). According to Book VIII of the Social Code, family have no longer had the right since 1990 to issue instructions to youth welfare offices that cause additional costs to be financed by the taxpayer.
Scope of discretion of the representatives of the people in political practice
In fact, most municipalities in Germany have little financial leeway, as federal and state law assign them a large number of compulsory tasks. In particular, many municipalities lack the financial means to grant voluntary benefits. These municipalities can often only finance mandatory tasks.
The Lower Saxony state parliament has to consider with regard to its financial scope: “However, a good four fifths of the expenditure shown in the state budget is fixed from the outset because it has to be planned for wages, salaries and (federal) legally binding material expenses. Only the remaining fifth is really up for debate and can be reallocated in parliamentary deliberations. ”The impending wave of retirement of state civil servants, in conjunction with the“ debt brake ” , is likely to reduce the financial leeway of most countries.
- cf. Peter Leyland: The Constitution of the United Kingdom - A Contextual Analysis . Portland: Hart Publishing 2007, p. 20.
- BVerfGE 33, 303 
- Lower Saxony state parliament: The budget law of the state parliament .
- Stefan von Borstel / Martin Greive / Dorothea Siems: Countries are collapsing under civil servants' pensions . The world . September 7, 2013