Reservation of law

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A legal reservation is the possibility provided in modern constitutions to restrict fundamental rights in a permissible manner . Since the restrictive regulation is reserved for a formal law, it cannot take the form of a statutory ordinance , an administrative act by the executive or a judgment by the judiciary. It is at the same time an allocation of powers to the democratically legitimized parliament , which is decisive after a public discussion ( parliamentary reservation ), from which special protection of fundamental rights is expected.

In an absolutist state, the monarch was free to choose whether he used the form of law, ordinance or individual act to exercise his rule. In the age of constitutionalism , which sought to limit the monarch's power through a constitution, legislation was assigned to parliament alone. This meant that fundamental rights as part of the constitution were beyond the reach of the monarch and executive . From this, however, the question arose when a law was necessary and when the administration led by the monarch itself could become active. To delimit this question of responsibility, the freedom and property formula was developed: A law (and thus the participation of the people's representatives) is required if the property and freedom of the citizens should be encroached upon. Through the participation of the people in the legislation, property and freedom rights of the citizens were seen as sufficiently secured.

The statutory reserve is not with the reservation of the law to be confused.

Germany

species

A reservation can be in general form (simple legal reservation). These legal reservations then apply largely without restriction.

"These rights may only be interfered with on the basis of a law." ( Article 2, Paragraph 2, Sentence 3 of the Basic Law )
"Content and limitations are determined by the law." ( Art. 14.1 sentence 2 GG)

Or in a qualified form: These legal reservations are specified and restricted.

"This right may only be restricted by law or on the basis of a law and only for those cases in which there is no sufficient basis for life and the general public would incur special burdens or in which it is necessary to avert an impending danger to the existence or the liberal democratic basic order of the federal government or a state, to combat the risk of epidemics, natural disasters or particularly serious accidents, to protect young people from neglect or to prevent criminal acts. "( Art. 11 para. 2 GG)
“Expropriation is only permitted for the common good. It may only take place by law or on the basis of a law that regulates the type and extent of the compensation. The compensation is to be determined with fair consideration of the interests of the general public and those involved. "( Article 14.3 of the Basic Law)

Simple and qualified legal reservations can directly restrict the basic right (“self-executing”) or first authorize the administration to intervene (authorization to intervene ).

Limits of restriction: barrier barriers

However, under the Basic Law , the German legislature is no longer free to restrict fundamental rights through laws. The experiences of the National Socialist dictatorship had shown that even a democratic majority had to set permanent power limits. Accordingly, the fundamental rights are no longer binding only to the administration and courts, but also to the legislature authorized to restrict them ( Article 1 (3) of the Basic Law). This is also bound by the constitution ( Article 20.3 of the Basic Law). This is done through so-called barrier barriers : the law that limits basic rights (barriers) is itself barriers (barrier barriers). These include in particular:

  • The quotation requirement: the basic right to be restricted must be named ( Art. 19.1 sentence 2 GG)
  • the essential content guarantee : the fundamental right to be restricted must not be touched in its core ( Art. 19 (2) GG)
  • the prohibition of the individual law ( Article 19.1 sentence 1 GG)
  • the prohibition of excess (proportionality principle)
  • Access to judicial protection
  • Binding by the basic rights as directly applicable law - they in turn do not need a simple legal transformation into practicable law, they are
  • Right to protection and respect for human dignity.

At the same time, an organ was created with the Federal Constitutional Court that can effectively monitor compliance with these regulations. If a restrictive law violates the barrier barriers, it is unconstitutional and must therefore be declared null and void. One can accuse this concept of the Basic Law of a deficit in democracy. In contrast, however, there is a considerable gain in the rule of law .

Related principles

A weakened form of the legal reservation is the legal clause reservation , which does not allow a formal parliamentary law, but any legal norm (law in the material sense) to suffice. For example, the general freedom of action is subject to the constitutional order, so it can also be restricted by ordinance or statutes .

Other basic rights do not provide for any reservation ( freedom of art , freedom of religion ). These fundamental rights are unreserved, but not unlimited. There are barriers that are inherent in the nature of fundamental rights: the principle of the unity of the constitution can also lead to unconditional fundamental rights being restricted by conflicting constitutional law ( constitutional barriers , see Practical Concordance ). Such conflicting constitutional law are in particular the fundamental rights of third parties and also other legal interests with constitutional status. According to the prevailing opinion, even in such cases a legal basis is required that weighs up the conflicting principles. The reason for this requirement is not a legal reservation , which is currently missing, but the more extensive principle of the reservation of the law .

Italy

The term “legal reservation” for the concept of “riserva di legge” can also be found in German (or South Tyrolean) terms for legal doctrine of the Italian Republic . The meaning is largely the same as that of the Federal German legal term: certain areas are "reserved" for regulation by norms of the primary level (which in Italian legal theory is those of legal provisions).

The frequent use of this instrument arises from the same experiences as shared by the Federal Republic of Germany (admittedly in an even more pronounced form). The necessity of restricting the possibility of interfering with the freedom and everyday life of the citizens became obvious at the time of the constitution , which took place in 1947/48 under the impression of the fascist dictatorship that had lasted more than twenty years . The democratically elected representative body is intended to be the only organ with the legitimation and wisdom to be able to undertake the basic regulation of interventions in the citizens' sphere of freedom. It is itself under the control of the Constitutional Court , which checks compliance with the various barriers set by the legal reservations.

In all cases, fundamental rights may only be restricted by law. Article 13 paragraphs 1 and 2 read, for example:

“Personal freedom is inviolable.

Any form of detention, surveillance or search of persons and any other restriction of personal freedom is prohibited, unless on the basis of a justified order of the judicial authority and only in the cases and forms provided by the law . "

This article has another peculiarity in that, in addition to the reservation of the law, it also makes a court order conditional on the restriction of personal freedom.

As in the Federal Republic of Germany, the Italian legislature cannot proceed in a completely arbitrary way when it comes to restricting fundamental rights. The creation and constitutional anchoring of a catalog of the fundamental rights as well as its provision with legal reservations to a restriction in the sense of the common good would be completely meaningless if the legal reservation could be used to completely undermine the fundamental rights. It is therefore true that every fundamental right in its essence ( nucleo essenziale ) must not be touched; the legal reservation goes that far and not further. It is therefore not possible to completely abolish personal freedom, for example by law, even if this may result from simple reading of the text.

The Constitutional Court has also recognized that this applies not only to laws, but not even constitutional laws can enter this core, since the constitution is not a simple legal text that can be arbitrarily changed here and there, but must have an inner harmony. The fundamental rights are such an elementary part of the overall concept of the constitution (liberal, constitutional, committed to the protection of human rights) that the constitution would be meaningless without its at least fundamental compliance.

species

The so-called "simple" legal reservation only prescribes that the matter must be regulated by law. Article 23 of the Constitution provides:

"No personal or financial performance may be imposed except by law ."

Measures such as B. The drafting into the armed forces, lay judiciary or taxation may only be carried out on the basis of a law. The legal reservation is "reinforced" if it not only specifies the law as a source of law, but also stipulations regarding the content of the regulation to be met. Article 16 reads:

"Every citizen can move and reside freely in any part of the national territory , subject to the restrictions generally imposed by law for reasons of health or safety ."

The free movement of citizens can therefore only be restricted if there are serious reasons, e.g. B. to prevent the spread of epidemics or to fight terrorism.

In the legal order of the republic not only the chambers have the power to enact legal provisions, but also the regions (within the limits of their jurisdiction) and, to a certain extent, the government itself: this can itself through the enactment of acts with legal force on the set norms on the primary level of legal sources, which is to be regarded as a sensitive point with regard to the separation of powers. So that certain areas can only be regulated by parliament, these are given a " formal " legal reservation. This means that they can only be regulated by a formal law, i.e. only by a law passed by the chambers. This mostly affects areas whose regulation must remain with the chambers for reasons of the separation of powers: only they can authorize the government to draw up statutory decrees (Art. 76 Constitution); likewise the rules of procedure of the chambers, which are a formal law, can only be adopted by the chambers themselves (Art. 64, Paragraph 1). The state of war must also be decided by parliament and the government only receives war powers through the chambers (Art. 78); the budget is to be confirmed by the chambers (Art. 81, Paragraph 1, Constitution), the President of the Republic can only be authorized by them to sign international treaties (Art. 87, Para. 8, Constitution).

A much stricter form of the legal reservation is the constitutional reservation . The constitution provides that certain subject areas may only be regulated by a further norm of constitutional rank. However, this caveat is very sparse and is only used twice. First, the constitution can (obviously) only be changed (or expanded) by a constitutional law. Second, the conditions, forms and deadlines relating to proceedings before the Constitutional Court and the provisions on the independence of judges can (only) be determined by a constitutional law (in contrast to the other provisions, which are only subject to a simple legal reservation). This is intended to cement the independence and stability of the Constitutional Court, which, as a guarantor of the constitutional order and fundamental rights, must also ensure compliance with the legal reservations by the legislature.

additional

In IV. Title of the Italian constitution of the statutory reserve is also used in certain specialist areas of authority to give state in preference to the others and to emphasize their generally higher level and coordinating role. State laws are the material laws of the chambers as well as acts with legal force. For example, Article 117 (9) provides:

"The region can conclude agreements with states and agreements with regional authorities of another state for subjects in its area of ​​responsibility in the cases and forms regulated by state law."

According to Article 114, Paragraph 3, the capital Rome is to be given a special constitution, which is to be determined by state law, which represents a considerable encroachment on the competences of the Lazio region.

literature

Individual evidence

  1. ↑ BVerfGE 108, 282 , so-called headscarf judgment.