Core area of executive personal responsibility
The core area of executive personal responsibility (also called secret area or arcane area) describes the initiative, advisory and action area of the executive, which is beyond parliamentary control . It is intended to preserve the separation of powers by preventing the legislature from “ruling in”. The scope of this core area cannot be determined in general; rather, it must be determined on a case-by-case basis, taking into account the constitutional tasks of the government and parliament.
Basics and development
On the occasion of the Flick affair , the Bundestag committee of inquiry demanded the release of a number of documents from the finance and economics ministries. The ministries only handed some of the required documents to the committee of inquiry and otherwise refused to hand them over, citing tax secrecy . Members of the investigative committee brought an action against this before the Federal Constitutional Court (BVerfG). Ultimately, the BVerfG had to decide whether the executive branch has the right to refuse the legislature to hand over documents. In this regard, the BVerfG states that there is a secret area of the executive that follows from the principle of the separation of powers and that is beyond parliamentary control.
"The government's responsibility towards parliament and the people necessarily presupposes a core area of executive self-responsibility, which includes an area of initiative, advisory area and area of action that cannot be explored by parliamentary committees of inquiry."
scope
To determine the scope of this core area, the BVerfG is based on whether the process has been completed. The government is generally not obliged to provide information about incomplete processes. It guarantees the risk of third parties co-governing. In addition, frank discussion among members of the government could be impaired. On the other hand, the government can only refuse to provide parliament with information under special circumstances in the case of closed processes. These circumstances can apply in particular to foreign policy issues or to security-related issues.
Application in Germany
As part of the out-of-area debate , the Federal Government invoked the core area of executive responsibility when using AWACS and a warship without prior parliamentary consultation. The SPD, however, sued the Federal Constitutional Court.
United States
The American constitutional order knows an "executive privilege". Thereafter, the legislature and the judiciary are denied insight into certain processes. In the proceedings before the United States Supreme Court United States v. Nixon found that there is an inner core of executive operations beyond the control of the other constitutional organs. It is also derived from the principle of separation of powers.
Austria
According to Article 53, Paragraph 2 of the Federal Constitutional Law (B-VG), a committee of inquiry may only deal with one completed case. The government can refuse to answer a parliamentary question; this refusal must be justified. This restricts the control rights of the National Council and the Federal Council to a comparable extent.
literature
- Volker Busse: The core area of executive personal responsibility in the area of tension between state powers . In: The Public Administration (DÖV) 1989, pp. 45–54.
Web links
- Scientific services of the German Bundestag: The core area of executive personal responsibility. German Bundestag, November 10, 2006, accessed on June 21, 2016 . (PDF 160 kB)
Individual evidence
- ↑ BVerfGE : 124, 78 - 161
- ↑ BVerfGE : 67,101
- ↑ BVerfGE : 67,139
- ↑ BVerfGE : 131, 152
- ↑ Busse, p. 49
- ↑ BVerfGE : 137, 185
- ↑ Ulf von Krause: The Bundeswehr as an instrument of German foreign policy . Springer VS, Wiesbaden 2013, ISBN 978-3-658-00184-1 , p. 181-184 .
- ↑ Art. 53 Federal Constitutional Law JUSLINE Austria
- ↑ Parliamentary questions (right to interpellate or ask questions). Republic of Austria Parliamentary Directorate, accessed on June 2, 2016 .