Organ and association competence
In a parliamentary democracy, it is primarily the responsibility of parliament as the legislative state authority . A special legislative procedure is typically provided. In addition to these parliamentary laws, which are also referred to as “laws in the formal sense”, there are also subordinate legal norms, such as statutory ordinances and statutes , which are issued by administrative bodies. This raises the question of organ competence , i.e. when the administration may take action and when a parliamentary law is required ( reservation of the law ).
In a federal state , however, there is another question that needs to be clarified in addition to organ competence. There are several levels of government here, so it has to be determined which of these associations should be responsible for legislation ( association competence ).
In Germany, the federal government and each state can enact laws. The legislation of the state is standardized in the respective state constitution , that of the federal government in the Basic Law . The latter is primarily exercised by the Bundestag . However, the Federal Council , the Federal Government and finally the Federal President are also involved.
Legislative competence describes the right and the ability to enact laws in the formal sense (parliamentary laws). For the definitions of Association competence of the countries, the Basic Law takes up the general principle of GG According to the Constitution have: on countries the right to legislate insofar as the Basic Law is not on the Bund (has transferred 1 para GG.) . The country competencies are therefore not listed individually. However, their core areas include in particular police law , local law and the area of education and culture (“ cultural sovereignty of the federal states”).
Contrary to this control technique, according to which the states are responsible in case of doubt, the practical relationship to the detriment of the states has been reversed over the course of time due to numerous exceptions and a federal-friendly jurisprudence of the Federal Constitutional Court . The federalism reform wanted to react to this.
Written federal competencies
In principle, the federal government is only responsible if it is expressly provided for in the constitution.
Exclusive federal legislation
Competing federal legislation
Unwritten federal competence titles
The control engineering of the Basic Law - state competence, unless otherwise expressly provided - actually excludes unwritten federal competence.
They are nevertheless recognized to a very limited extent. One distinguishes
- Competence based on factual context ,
- Annex competence and
- Competence by virtue of the nature of the matter .
Negative legislative competence of the Federal Constitutional Court
According to BVerfGG , the Federal Constitutional Court has negative legislative competence in cases in which federal law is incompatible with the Basic Law or state law with the Basic Law or other federal law: it declares its nullity with the force of law. The statement that the requirement of a federal regulation no longer exists ( (3) GG) also replaces a federal act.
Procedure and form
The federal government , the Bundesrat and members of the Bundestag (at least five percent or a parliamentary group ) have the right of initiative , i.e. the right to introduce a new law or a law to amend or repeal another law as a draft for voting in the Bundestag. The Bundestag deliberates in three readings on the introduced laws that fall within its area of competence according to the Basic Law (and are not a matter for the states).
Due to the federal system in Germany, the federal states are involved in the legislative process through the Bundesrat and all laws are submitted to this body for voting. This can - depending on the type of law - cause a draft to fail after an unsuccessful call from the mediation committee .
If a law has passed the Bundestag and the Bundesrat in the procedure regulated by the Basic Law, the Rules of Procedure of the German Bundestag and the Rules of Procedure of the Bundesrat , it is forwarded in printed form to the responsible Federal Ministry and then to the Federal Chancellor for countersignature before it is presented to the Federal President becomes. The latter has the right to check whether the law submitted to him is in accordance with the constitution and whether it was passed in accordance with the constitution. Finally, the Federal President signs the law, it is now executed. It is then formally announced in the Federal Law Gazette, stating the date of entry into force ( GG).
Material bond and review
The legislature is bound by the constitution in its decisions ( rule of law or state objectives . In particular, he must observe the fundamental rights , may restrict them by law, but not violate them. Otherwise the law is unconstitutional and void , i.e. ineffective. The nullity can only be determined by the Federal Constitutional Court (rejection monopoly).(3) GG). Accordingly, he must also observe certain constitutional norms in terms of content, such as the
However, the Federal President is granted an examination competence, according to which he can refuse to sign in the event of formal errors or an obvious breach of the Constitution by the law and thus not allow the law to take effect (→ signature and review of laws by the Federal President ).
German Democratic Republic
Legislation in the European Union
- Thilo Brandner: Parliamentary Legislation in Crisis Situations - On the Conclusion of the Financial Market Stabilization Act , NVwZ 2009, pp. 211–215.
- Eike Michael Frenzel: The Legislative Procedure - Basics, Problem Cases and Newer Developments , Part 1: JuS 2010, pp. 27–30, Part 2: Jus 2010, pp. 119–124.
- Wolfgang Ismayr : Legislation in the political system of Germany . In: Wolfgang Ismayr (Ed.): Legislation in Western Europe. EU countries and the European Union . VS Verlag für Sozialwissenschaften, Wiesbaden 2008, pp. 383–429.
- Ulrich Karpen : 40 Years of Legislative Studies in Germany and the ZRP Contribution , ZRP 2007, pp. 234–235.
- Michael Kloepfer : Legislative Outsourcing - The creation of draft laws by lawyers , NJW 2011, pp. 131-134.
- Julian Krüper : lawfirm - legibus solutus? Legitimacy and Rationality of the Legislative Procedure in the “Outsourcing” of Bills , JZ 2010, pp. 655–662.
- Konrad Redeker : Ways to Better Legislation , ZRP 2004, pp. 160–163.
- Wolfgang Thierse : Ways to Better Legislation - Expert Advice, Justification, Impact Assessment and Impact Assessment, NVwZ 2005, pp. 153–157.
- Literature on legislation in the catalog of the German National Library
- Bundestag: function and task; legislation
- Further legislative powers
- "Pocket Politics" - an overview with a diagram of the legislation in the Federal Republic of Germany
- Road to federalism reform on the pages of the German Bundestag