Competence competence
In constitutional law, the right to assign and change responsibilities is referred to as competence competence (also competence competence ) . In principle, this right rests with the bearer of the sovereignty of a state, which has unrestricted sovereignty over its internal affairs. The constitution of a state and its laws regulate the restriction or transfer of individual sovereign rights to intergovernmental institutions such as the organs of the European Union or NATO .
overview
In a federal state , competence competence denotes the authority of the entire state to expand its own competence by amending the constitution at the expense of the member states. In a confederation , on the other hand, only the member states are sovereign, not the entire state. That is why the member states in a confederation have the competence.
If constitutional state organs can make binding decisions on the extent of their competence vis-à-vis all other state organs, this is also referred to as competence competence. In current German legal dictionaries, "competence competence" is used in relation to courts and authorities :
"Competence competence is the authority of a state body (especially a court) to make binding decisions about doubts about the competence of administrative authorities or the judicial competence."
"Competence-competence is called the responsibility of an administrative body to expand its material competence with the restriction of external responsibilities, so within certain limits and under certain conditions the law of the districts and other municipal associations vis-à-vis the municipalities."
An application example for the further definition given here, which also includes parliament , can be found in an essay by Ernst-Wolfgang Böckenförde : “The [British] parliament, by virtue of its sovereignty, has the authority over other powers, including the judiciary: repeal of judgments "Etc.
Germany
Constitutional law
In Germany, the competence competence in relation to the state as a whole lies with the federal government and not with the states . This gives the federal government the opportunity to grant itself additional powers by making constitutional changes to the federal states. According to Article 79 of the Basic Law , a constitutional amendment can only come about if, in addition to the Bundestag , the Bundesrat, made up of representatives of the Länder, agrees with a two-thirds majority . The Federal Council is not a state but a federal body .
Judicial constitutional law
In the 19th century, the competence of the courts in relation to the administration was highly controversial. The question was whether the ordinary courts themselves were allowed to decide on the opening of legal recourse and, consequently, on their jurisdiction. In this way they could possibly also have decided on the legality of actions by the administration, which the governments wanted to prevent. This was of particular practical importance because there were as yet no independent administrative courts .
Competence courts that could finally decide on the opening of legal recourse were therefore widespread . Sometimes they were not manned by independent judges or did not have to clarify the question of law and order, but rather whether a legal dispute was to be regarded as "suitable" for judicial treatment. This played a major role, especially in state liability law .
But the Courts Constitution Act threatened to fail due to the different positions on conflict and conflict of competencies , so that a compromise was reached in Section 17 (2) GVG old version. After there was only a conflict of jurisdiction court in Bavaria ( Bavarian Supreme Regional Court ), the regulation was only repealed without replacement by Art. 2 No. 1 of the law on the new regulation of administrative court proceedings of December 17, 1990 ( Federal Law Gazette I p. 2809 ) .
Local law
In Rhineland-Palatinate municipal law, competence competence is also the right of the association community to intervene in the task competence (of all) of their local community (s) under formal and material conditions and to take over individual self-administration tasks in their own competence. The formal requirements include:
- the association has to agree
- more than half of the local congregations must agree
- More than half of the residents of the association must live in the local parishes that approve.
Calculation example: There are 4 local congregations (OG) in an association congregation (VG):
- The OG-1 has 100 inhabitants,
- the OG-2 has 300 inhabitants,
- the OG-3 has 500 inhabitants and
- the OG-4 has 200 inhabitants.
A total of 1,100 people live in the VG. So that the VG can now take over tasks from its OG, at least 3 OG must agree. And more than 550 residents have to live in these 3 floors.
For the material requirement to be met, it is important that the joint performance of the task is in the urgent public interest.
Arbitration law
In arbitration law, the principle of competence-competence states that normally the arbitration may first decide on its own jurisdiction (eg., Whether the arbitration agreement is effective). However, this decision is only provisional; the final decision (in the event of a timely complaint of lack of jurisdiction by one of the parties) is a matter for the state courts. In this form, the competence of the arbitral tribunal is now recognized practically worldwide. The German regulation in § 1040 ZPO is taken almost verbatim from Article 16 of the UNCITRAL Model Law on International Arbitration, which has so far served as the basis for the new version of the law of arbitration in more than 50 countries.
Austria
In Austria, the national competence lies with the federal government , since the distribution of competences between the federal government, the states and the municipalities is regulated in the Federal Constitutional Act (Articles 10 to 15). Changes to competencies at the expense of the federal states require the express consent of the Federal Council in accordance with Art. 44 para. 2 B-VG , which is, however, regarded as a federal body. However, since the members of the Bundesrat are elected by the state parliaments (Art. 34 B-VG), the federal states have a de facto say in the distribution of powers.
Serious changes to powers that impair a basic principle of the Federal Constitution are to be submitted to a vote by the federal people as an overall amendment to the Federal Constitution in accordance with Art. 44 Para. 3 B-VG, which therefore also has partial powers. According to the prevailing doctrine , for example, accession to the EU was only possible by holding a referendum , since the transfer of powers to a supranational organization has resulted in a serious interference with the federal, constitutional and democratic principles.
Switzerland
In Switzerland the competence competence lies with the federal government , since the allocation of powers to the federal government and the cantons by the Federal Constitutional happens (Federal Constitution Art. 3 and art. 42). A change in the allocation of competencies occurs either through an amendment to the Federal Constitution, which inevitably leads to a referendum , which in turn requires a majority of the people and the majority of the cantons , or in the area of mixed jurisdiction, via an amendment to the corresponding simple federal legislation, which in turn is subject to an optional referendum, which alone needs the majority of the people. Constitutional amendments can be initiated by the people ( popular initiative ), the cantons ( professional initiative ), the Federal Council or parliament . There is, however, no right of the people to initiate changes to a federal law (unlike in the case of cantonal legislation).
According to Art. 43a Para. 1 of the Federal Constitution, the Confederation is entitled to competences which “exceed the power of the cantons or which require uniform regulation by the Confederation”. The competences of the cantons are only partially listed in the constitution, as in principle all tasks not explicitly assigned to the Confederation fall to them (so-called subsidiary general clause).
European law
In European law, according to Art. 5 TEU, the so-called principle of limited individual authorization applies , according to which the European Union may “only act within the limits of the competences” “which the member states have assigned to it in the treaties in order to achieve the goals set out therein. All competences not assigned to the Union in the Treaties remain with the Member States ”( Art. 5 (2) EU). This principle is supplemented by the principles of subsidiarity and proportionality according to Art. 5 Para. 1 Clause 2 EU as substantive law .
As a result, a task may only be performed by an organ of the Union if it has been expressly authorized by the Union states to perform it. This requires a transfer of competences from the national to the European level (in German law according to Art. 23 GG) and a specification in primary European Community law ( EU , TFEU ). In addition, the European Union must not act; it then remains the responsibility of the Member States. The European Union therefore has no competence competence.
The Maastricht judgment of the Federal Constitutional Court of October 12, 1993 (2 BvR 2134, 2159/92, BVerfGE 89, 155) dealt extensively with the problem of the transfer of competences from the federal to the Union level and with the related relationship between German constitutional law and European law.
international law
In international law, competence-competence is understood to mean the authority of sovereign states to independently shape their basic order. They are therefore called original subjects of international law, in contrast to the international organizations that derive their competences from their member states (so-called derivative subjects of international law).
Canon Law
Affectio papalis is understood to mean the right to which the Pope is entitled to place other matters under his discretion in addition to the matters already reserved to him by law.
Trivia
- The word “Kompetenz-Kompetenz” is sometimes considered the longest reduplication word in the German language, but it is actually a determinative compound .
- The term has entered the Anglo-American technical language as a German loan word .
- The expression became known to a broader German public through a speech by Edmund Stoiber , which was circulated on the Internet and featured several times in “Competence Competence”. The popularity of the sequence is based on the audience's mistake that it is a matter of a multiple slip of the tongue.
Web links
- Competence competence - in the dictionary
- Competence-Competence - in the Europalexikon von Hüttmann / Wehling at the Federal Agency for Political Education
Individual evidence
- ^ Carl Creifelds: Legal dictionary . Ed .: Klaus Weber. 19th edition. Beck, Munich 2007, p. 681 (sv competence competence ).
- ↑ Horst Tilich, Frank Arnold (Ed.): German Legal Lexicon . 3. Edition. tape 2 . Beck, Munich 2001, p. 2546 f . (sv competence-competence ).
- ↑ Ernst-Wolfgang Böckenförde: The suppressed state of emergency. For action by the state authority in extraordinary situations . In: New legal weekly . 1978, p. 1881–1890 (1886 f.) .
- ↑ Voit, in: Musielak, ZPO , 6th edition 2008, § 1040 ZPO, Rn 1.
- ^ Fouchard, Gaillard, Goldman, On International Commercial Arbitration , 1999, p. 397 Rn. 653.
- ↑ 1985 - UNCITRAL Model Law on International Commercial Arbitration. Retrieved February 21, 2018 .
- ↑ Ingo von Münch , in: Munich Commentary on the Code of Civil Procedure , 3rd edition 2008, § 1040 ZPO, Rn 1.
- ↑ Status. UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006. Retrieved February 21, 2018 .
