Competing Legislation

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A concurrent legislative means in federal states that both the State and its constituent states through a legislative competence on the same area of law have and to clarify who is entitled to exercise them.


Notwithstanding the principle that the legislation which countries are responsible, the Basic Law for the Federal Republic of Germany (GG) in the area of concurrent legislation , the legislative law and the federal government to. Where the federal government makes use of its right, the states can in principle no longer enact laws ( Art. 72 GG). Land law already in force expires ( Art. 31 GG ).

In certain areas, the competing federal legislation is subject to the requirement that a uniform federal regulation is required; In other areas, the states are allowed to deviate from federal law.

Subject of competing legislation

The subject areas of the competing legislation are listed in Art. 74 Paragraph 1 GG and Art. 105 Paragraph 2 GG. The legal areas of competing legislation include, among others:

History of origin

Originally the competing legislative competence of the federal government was linked to the “need” for a nationwide regulation. The Federal Constitutional Court considered this element of the offense to be unjusticable, so it always saw the need as given when the federal government took action. As a result, the area of ​​federal laws expanded enormously to the detriment of the states and made the regulatory exception the normal case.

After reunification, therefore, the conditions were tightened in order to give the federal states more options for legislation. The “necessity clause” was thus introduced from the need clause, a competence control procedure specifically for the Federal Constitutional Court for its control . The court now interpreted the clause very strictly - in line with the intention of the constitutional amendment (cf. only BVerfGE 110, 141 attack dogs and BVerfGE 106, 62 geriatric care). In the course of the federalism reform , the content of the necessity clause was left as it was, but limited to a sub-area of ​​the competing legislation.


Today the competing legislation falls into three subcases:

  • Priority competence: In principle, the federal government can act without additional conditions having to be met ( Art. 72 (1) GG).
  • Competence for needs: In certain areas, however, the federal government only has the right to legislate if and to the extent that the establishment of equivalent living conditions in the federal territory or the preservation of legal or economic unity in the national interest makes federal regulation necessary ( Article 72 (2) of the Basic Law). The previous necessity clause has been retained here, which according to Art. 93 para., 1 no. 2a GG can be determined by the Federal Constitutional Court. This affects the matters of Article 74 Paragraph 1 No. 4, 7, 11, 13, 15, 19a, 20, 22, 25 and 26 of the Basic Law.
  • Deviation competence : In a third area, the federal government has the legislative competence, but the states have a deviation competence ( Art. 72 (3) GG). Hunting (without the right to obtain a hunting license), nature conservation and landscape management (without the general principles of nature conservation, the right to protect species or marine nature conservation), land distribution, spatial planning, water balance (without substance or plant-related regulations) are affected. as well as university admission and university degrees. This ability to deviate is one of the great innovations of the federalism reform. It means that federal law only applies in certain regions to a greater extent than before.

Conflict between federal and state law

While otherwise only federal or only state law can be enacted in accordance with competency, in the case of competing legislation there may be effective federal and state law, for example because no federal regulation was in place when the state law was passed. This conflict of norms is resolved by Art. 31 GG in favor of federal law: " Federal law breaks state law ", so state law expires ( priority of federal law). This rule already applied in earlier German federal constitutions. The Federal Constitutional Court also derives the nullity of the lower-ranking state law from Article 72 (1) of the Basic Law, using the wording “as long as”.

Notwithstanding this, Article 72, Paragraph 3, Sentence 3 of the Basic Law provides for the competence to deviate that it is not the higher-ranking law that violates the lower, but that "in relation to federal and state law, the later law" takes precedence. This should also not be a priority of validity, but only a priority of application , so that the superseded standard continues to exist and would automatically be applied again if the others were canceled. In order to give the states time to draft deviating laws, federal laws in these areas come into force six months after their promulgation at the earliest, unless otherwise agreed with the consent of the Bundesrat.


Proponents of a competitive federalism refer to Articles 72 and 74 of the Basic Law, which enumerate the areas of competing legislation , as the Trojan horse of centralism , because the principle of equal living conditions of Article 72 can be interpreted in an extravagant manner and the catalog of Article 74 meanwhile cover too many areas. The problem facing the states is that, in their opinion, too many competencies go to the federal government.

This supposed problem was first attempted to take into account an amendment to the Basic Law of October 27, 1994, when the phrase “ uniformity of living conditions ” was replaced by “equivalent living conditions”. However, Federal President Horst Köhler has campaigned for acceptance of the unequal living conditions in northern and southern or eastern and western Germany. While proponents saw this statement only as an open speaking of a truth, critics interpreted the words in such a way that the goal of harmonizing living conditions between East and West would now be abandoned as a constitutional goal.

In particular, the newly introduced deviation competence of the federal states has met with some criticism. It means that partial federal law exists for the first time on a large scale, i.e. one that only applies in a few countries. In addition, it is not clear from the federal law whether and which state laws with different content have been passed. State laws are also conceivable, which only partially deviate, so that a complicated network of regulations arises. Ultimately, the danger of constant back and forth, a "ping-pong game" between federal and state legislators is seen.

Decisions of the BVerfG

See also


  • Thomas Daniel Würtenberger: Art. 72 II GG: a calculable rule for exercising competence? Nomos-Verlag, Baden-Baden 2005, ISBN 3-8329-1533-8 .
  • Alexander Petschulat: The regulatory competencies of the states for spatial planning after the federalism reform: Problems of the deviating legislation. Lexxion, 2014, ISBN 978-3-869 65-268-9 .

Web links

Individual evidence

  1. BVerfGE 29, 11 , 17