Federal law breaks state law
Reich law or federal law breaks state law is a German legal principle . It states that the law of the state (the federal level ) is more important than the law of a member state . If the law (e.g. a law ) of the member state contradicts federal law , then it is void. If the member state insists on the application of its national law, the federal level can, if necessary, enforce its own law by force.
In the Holy Roman Empire , this legal principle was not yet generally recognized; Rather, imperial law was faced with many other rights, such as imperial estates or church law . The principle was valid in the German Confederation from 1815 and later also according to the constitutions of the German federal state from 1867. In other states of the world, even in federally organized, the principle is not necessarily widespread.
Old empire
The Holy Roman Empire in the Middle Ages and the Early Modern Age developed into a constitutional monster, as Samuel Pufendorf called it. In his essay on the German constitution of 1667, Pufendorf referred to the love of freedom among the old Germanic tribes. The empire as a fiefdom was created because the German kings gave away property to their favorites. After that, it was no longer possible for the kings to pronounce justice in a way that would jeopardize the princes' power base. The princes put up strong resistance to such attempts.
The Perpetual Reichstag saw itself limited by the fact that its laws were always materially bound to the observance of existing rights, says Michael Kotulla . In the individual territories there was a wide variety of customary and convention law, which had fundamental priority. It was not only about state law, but also about the law of provinces and regions as well as cities. In addition, there were Roman and canonical (ecclesiastical) law. One could not imagine this “particular law as complex enough”. Accordingly, the legislative activity of the empire was "extremely modest".
German Confederation from 1815
The German Confederation of 1815 brought about a change. It is true that the principle “Federal law breaks state law” was not expressly laid down in the federal constitution (such as the Federal Act ). But he insisted on the matter. The federation went beyond a pure federation of states insofar as it did have federal elements. This included provisions of the federal constitution on the state constitution: Above all, the member states were instructed to introduce a state constitution and to maintain the monarchical principle where it exists.
If a state law contradicted the law of the German Confederation , it was automatically invalid or ineffective. The Bundestag saw itself right to rule on such a contradiction. For example, in 1831 the Grand Duchy of Baden announced a new press law that abolished censorship. The Bundestag pointed out to Baden that the law violated federal law in parts. Baden acknowledged that these parts were ineffective. The law itself did not need to be formally repealed, the parts contrary to the federal government were without legal effect from the start. The only difference to later German constitutions was that the federal government did not have its own publication organ. A federal law therefore first had to be promulgated in a state law gazette.
In the emerging German Empire of 1848/49 , the principle should also apply, although the Provisional Central Authority had difficulties in getting its orders to be recognized by the larger states. In the Imperial Constitution of March 28, 1849 , the principle was formulated as follows (retained in the Erfurt Union Constitution , there §§ 63 and 192):
Section 66. Reich laws take precedence over the laws of the individual states, insofar as they are not expressly assigned only subsidiary validity.
Section 194. No provision in the constitution or in the laws of a single state may conflict with the imperial constitution.
Despite these and other attempts to expand the German Confederation, it came in the 51 years of its existence in no significant federal reform . The problem was less the competence of the federal government to legislate. Rather, the federal government only had a limited federal purpose : the federal government was only brought into being for internal and external security. Most of the larger states did not want to develop into a federal state.
Monarchical federal state since 1867
In the constitution of the North German Confederation of 1867 it says:
Art. 2. Within this federal territory, the federal government exercises the right to legislate in accordance with the content of this constitution and with the effect that the federal laws take precedence over the state laws. The federal laws receive their binding force through their promulgation by the federal government, which is done through a federal law gazette.
The same is stated in the constitutions of January 1, 1871 and April 16, 1871 , with the term “Bund” being replaced by “Reich” almost everywhere. Only the “federal territory” retained the old expression.
According to Ernst Rudolf Huber , state tasks were divided between the federal government and the member states, but not sovereignty. This was clearly at the federal level. The federation was superior to the member states. This was followed by competence-competence, the power to decide which tasks and powers the federal government took on. This was true even if the federal government allowed the member states to implement federal laws. A North German or German was a member of a member state. But the federal government determined (according to Art. 3 of the constitution) a common indigenous society , that is, citizens of another member state had to be treated as residents. In addition, nationality law (of the federal government and the member states) was regulated by federal law.
Between the federal government and individual states the mutual duty was to covenant faithfulness . Naturally, it was primarily about the fiduciary duty of the member states. Accordingly, the federal government had an important instrument of power in hand, the federal execution ( Reichsexekution ) under Article 19 of the constitution. If a member state does not comply with its constitutional federal obligations, the Federal Council will decide on federal execution. Although the Federal Council consisted of representatives from the member states, it was itself a federal body, not a state body or an organ of state authority.
Weimar Republic
The federal states were not directly involved in the decision on the Weimar constitution , which can be seen in the more unitarian character of the Weimar Republic . In general, an old “alliance basis” had ceased to exist, because without princes, federalism was only a question of political expediency. But although the Reich had more competencies since 1919 than before, the states were more secure in their ownership: to change the Reich constitution, the Reichsrat , the representative body of the states, now needed a two-thirds majority instead of a simple majority. In addition, there was now a Reich State Court for disputes between the Reich and the Länder. It was hardly conceivable to legally make the Empire more Unitarian.
The imperial constitution defines the areas of responsibility of the empire and the states, followed by a concise statement:
Art. 13. Reich law breaks state law.
Unlike the North German Confederation and the German Empire, the new Imperial Constitution expressly intervened in the constitutional law of the federal states. In Article 17, it prescribes the republican form of government, free elections and the parliamentary system of government. In all actions the states had to take into account the interests of the Reich: in the state administration, in the state legislation, in the protection of the constitution against anti-imperial efforts, in the exercise of their own foreign policy and exceptional powers.
Federal Republic of Germany
The Basic Law of 1949 adopted the wording of Art. 13 WRV in its own Art. 31 and replaced the word "Reichsrecht" with "Bundesrecht". In terms of the hierarchy of norms , Article 31 thus places federal law over state law. What is meant is the entire federal law, so that, for example, a federal law stands above a state constitution.
In the extreme case, the means to enforce federal law would be federal compulsion .
International comparison
The conservative, separatist lawyer Matthias Storme from Flanders argues that the principle “federal law breaks national law” does not apply in Belgium . This principle first emerged in the United States of America in 1787 and is therefore relatively new. Previously, the opposite was the case. In some states, such as the USA, Germany and Switzerland , the federal state came about through the centralization of already existing individual states. There were competing powers and regulation was therefore necessary.
Other countries, however, such as Belgium and Italy , came about through decentralization. Federalism there is not “centripetal”, but “centrifugal” (striving from the center). The member states are given powers that are not in competition with the federal level. In the event of competing legislation, one would otherwise have to set up representations of the member states which, like in Germany, co-decide on federal laws. However, this has not yet been the case in Belgium, because the federal level could take away powers from the member states with a two-thirds majority, without the member states having the opportunity to object.
In Austria , a distinction must be made between the constitutional level and the simple legal level. The country's constitutional law may in accordance with Art. 99 , Section 1 of the Federal Constitution Act (B-VG) the Federal Constitutional Law does not contradict, simple state and federal laws , however, are of equal rank. If a state constitutional law contradicts federal constitutional law, it can be contested before the Constitutional Court (VfGH).
See also
supporting documents
- ^ Samuel Pufendorf: The Constitution of the German Empire , Reclam, Stuttgart 1976 (1667), p. 11, 46-48.
- ^ Michael Kotulla: German constitutional history. From the Old Reich to Weimar (1495–1934) . Springer, Berlin 2008, p. 117.
- ^ Ernst Rudolf Huber: German constitutional history since 1789 . Volume I: Reform and Restoration 1789 to 1830 . 2nd edition, Verlag W. Kohlhammer, Stuttgart [u. a.] 1967, pp. 601/602.
- ^ Ernst Rudolf Huber: German constitutional history since 1789. Volume III: Bismarck and the realm. 3rd edition, W. Kohlhammer, Stuttgart [u. a.] 1988, pp. 796-798.
- ^ Ernst Rudolf Huber: German constitutional history since 1789. Volume III: Bismarck and the realm. 3rd edition, W. Kohlhammer, Stuttgart [u. a.] 1988, pp. 796/797.
- ^ Ernst Rudolf Huber: German constitutional history since 1789. Volume VI: The Weimar Imperial Constitution . W. Kohlhammer, Stuttgart [u. a.] 1981, pp. 60-62.
- ^ Ernst Rudolf Huber: German constitutional history since 1789. Volume VI: The Weimar Imperial Constitution . W. Kohlhammer, Stuttgart [u. a.] 1981, pp. 71/72, 80/81.
- ↑ Waarom federal law breaks national law het monster van Loch Ness is van het Belgian state law , originally published in TIJD, October 15, 2004.
- ↑ Waarom federal law breaks national law het monster van Loch Ness is van het Belgian state law , originally published in TIJD, October 15, 2004.
- ^ Theo Öhlinger , Harald Eberhard : Constitutional Law . 10th, revised edition. facultas.wuv, Vienna 2014, ISBN 978-3-7089-1111-3 , p. 28 .
- ^ Theo Öhlinger , Harald Eberhard: Constitutional Law . 10th, revised edition. facultas.wuv, Vienna 2014, ISBN 978-3-7089-1111-3 , p. 473 .