Competence based on factual context
The legal figure of competence by virtue of factual context concerns the division of legislative competences between the federal government and the states in the Federal Republic of Germany . According to Article 70 of the Basic Law , the legislative competence lies with the federal states, unless a certain subject area is expressly assigned to the federal government in Article 71 ff. Basic Law.
However, three groups of cases of unwritten federal competences are recognized:
- The competence by virtue of the nature of the matter ,
- the annex competence and
- the competence due to factual context.
The competence of the federal government by virtue of factual context is very important in practice. It exists "if a matter expressly assigned to the federal government can understandably not be regulated without also regulating a matter that has not been expressly assigned, i.e. if an encroachment on unassigned matters is an indispensable prerequisite for regulating a matter expressly assigned to federal legislation". One example is Section 81b of the Code of Criminal Procedure : This allows the law enforcement authorities to take photos and fingerprints of an accused even against his will for the purpose of carrying out criminal proceedings or for the purposes of the identification service , or to take similar measures, insofar as this is necessary. The identification service treatment is part of the activity of the law enforcement authorities, for which the federal government has the legislative competence according to Article 74.1 No. 1 GG, as well as the police danger prevention , for which the competence traditionally lies with the states via Article 70 GG . For the latter purposes, the federal government would therefore lack express legislative competence. Nonetheless, the federal government has at least one competence by virtue of factual context, since the identification service treatment in criminal proceedings cannot be regulated without at the same time allowing this for the purpose of averting danger.
