Norm control

from Wikipedia, the free encyclopedia

As a standard control is called the review of legal standards to determine whether they are compatible with higher-ranking law. Controls of norms are carried out by courts and have historically emerged from the judicial review law . The power of courts to review legal norms for their compatibility with higher-ranking law and to declare the lower-ranking norms null and void in the event of non-compatibility is referred to as the authority to review norms.

Germany

In Germany, the control of post-constitutional (i.e., passed after the respective constitution was adopted), formal (i.e., typically passed by parliament) laws is fundamentally reserved for constitutional jurisdiction (cf. Art. 100 (1) GG ). The respective constitutional court (Federal Constitutional Court or Constitutional Court of the state) examines the constitutionality of the law in the procedures of abstract or concrete norm review . In addition, the Federal Constitutional Court (and, depending on the state law, the State Constitutional Court) also reviews the constitutionality of laws in the context of constitutional complaints, either because the law is incidentally examined as an authorization to intervene or because the constitutional complaint is directed against an onerous law (in principle).

Pre-constitutional or statutory law ( ordinance , statute can), however, at Entscheidungserheblichkeit not only from each specialized court incident on its constitutionality checks (testing competence), but is left unapplied by the specialized courts and for the individual cases if they are convinced of the unconstitutionality (warp competence) .

Constitutional judicial review

In the abstract review of norms before the Federal Constitutional Court (BVerfG), the federal government can submit a cabinet decision , a state government or a quarter of the members of the Bundestag to the Federal Constitutional Court in accordance with Art. 93 (1) No. 2 GG in conjunction with Section 13 No. 6 BVerfGG put. The subject of the audit is any legal norm with external legal content (therefore no review of administrative regulations possible) that has already been promulgated with the exception of international treaties. According to Section 76 (1) BVerfGG, the applicant must consider the challenged right to be null and void, but Article 93 (1) No. 2 GG speaks of doubts. In this respect, it is controversial whether the “doubts” called for in the Basic Law take precedence over “consider void”.

The constitutions of the German federal states provide for similar provisions on the abstract control of norms. In Bavaria (popular lawsuit ) and Hesse ( public lawsuit ), citizens can also apply for an abstract norm review.

In the specific control of norms , a judging court according to Art. 100 GG, § 13 No. 11 BVerfGG submits a parliamentary law to the Federal Constitutional Court for examination. The prerequisite is that, in the case to be decided, the constitutionality of a post-constitutional law is important and the judging court is convinced that the law is incompatible with the constitution. It then makes an order for reference and suspends the proceedings until the Federal Constitutional Court has decided. The specialized court can and must, if it is convinced of their unconstitutionality, leave subordinate legal norms unapplied without submission.

Administrative judicial norm controls

According to § 47 VwGO in particular, administrative law has entrusted the higher administrative courts or administrative courts with the task of carrying out norm controls in accordance with the provisions of the Building Code , in particular z. B. against development plans , which as adopted statutes own law and no administrative acts that can be challenged under private law in the form of z. B. represent a notification . In addition - depending on state law - in accordance with Section 47 (1) No. 2 VwGO, other sub- statutory state law (in particular legal ordinances ) can be made the subject of an abstract norm review before the courts mentioned. This option does not exist in Berlin and Hamburg; in Bavaria and Hesse, state constitutional law is not a standard for reviewing ordinances; In Rhineland-Palatinate, the ordinance of a constitutional body (in particular the state government, prime minister, minister) cannot be the subject of the examination.

The application is subject to a deadline, the procedures are chargeable and subject to the " lawyer requirement ".

Administrative judicial controls of norms are not capable of popular action ; the applicant must assert concern in a right. However, this only represents an admissibility hurdle; If the application is admissible, the court will generally review the legality of the norm so that an illegality that is not based on a violation of the law can result in the repeal of the legal norm.

Liechtenstein

Similar to Germany and Austria, in the Principality of Liechtenstein a distinction is made between abstract and concrete control of norms.

It is basically used in the examination of the

  • Constitutionality of laws (legal review, Art 18 f StGHG),
  • Constitutional, legal and state treaty compliance of ordinances (ordinance review, Art 20 f StGHG),
  • Constitutionality of state treaties (state treaty examination, Art 22 f StGHG),

differentiated (with regard to the examination of international treaties, no abstract control of norms is provided).

Legal review

When examining the constitutionality of laws, the State Court of Justice decides on the constitutionality of laws or individual legal provisions:

a) at the request of the government or a Liechtenstein municipality;

b) at the request of a court or

c) ex officio, if and to the extent that he has to apply a law that appears to him to be unconstitutional or some of its provisions in proceedings pending before him,

and repeals the law or some of its provisions insofar as this is incompatible with the constitution . If the law or some of its provisions have already expired, the State Court of Justice will determine that they are unconstitutional (Art. 19 (2) StGHG).

Regulation check

The State Court of Justice decides on the examination of the constitutionality and legality as well as the compliance with the international treaty of ordinances or individual provisions of ordinances:

a) at the request of a court or a municipal authority,

b) ex officio, if and to the extent that he has to apply an ordinance that appears to him to be in breach of the constitution, law or international treaty or individual provisions thereof in proceedings pending with him;

c) at the request of at least 100 citizens entitled to vote,

and repeals the ordinance or individual provisions thereof. If the ordinance or individual provisions thereof have already expired, the State Court of Justice will determine that they are in breach of the constitution, law or state treaty (Art. 21, Paragraph 2, StGHG).

State treaty examination

The State Court of Justice decides on the constitutionality of international treaties or individual provisions of international treaties:

a) at the request of a court or an administrative authority, if and to the extent that they have to apply an interstate treaty that appears unconstitutional or individual provisions thereof in proceedings pending before them (prejudiciality) and they have decided to interrupt the proceedings to submit an application to the State Court;

b) ex officio, if and to the extent that he has to apply a state treaty that appears to him to be unconstitutional or some of its provisions in proceedings pending before him.

If the State Court of Justice recognizes that an interstate treaty or individual provisions thereof are incompatible with the constitution, it cancels their domestic binding force (Art. 23 (1) StGHG).

Austria

In Austria, the Federal Constitutional Law (cf. Art. 98 B-VG) follows the principle of calculating errors . This means that general norms (laws, ordinances, international treaties and re-pronouncements) are not null and void if they are unlawful, but apply until they are repealed. The Constitutional Court (VfGH) has the abolition monopoly. The review of such a standard is carried out:

  • in connection with a specific individual case ( specific control of standards ) or
  • without any connection with a specific individual case ( abstract control of norms ).

A special feature of international treaties is that they are not repealed, only their domestic applicability is excluded (cf. Art. 140a B-VG).

In the context of the abstract control of norms, one third of the members of the National Council or the Federal Council and the state governments have the right to apply for federal laws in accordance with Art. 140 Paragraph 1 Z 2 B-VG . In the case of state laws, in accordance with Art. 140, Paragraph 1, Item 3 of the B-VG, an abstract review of norms can be requested by the federal government or, if the state constitution allows this, by a third of the members of the state parliament . Similar provisions exist for the examination of ordinances ( Art. 139 B-VG), re-pronouncements ( Art. 139a B-VG) and international treaties ( Art. 140a B-VG).

As part of the specific review of norms, the court responsible for the matter should generally submit an application for review of norms, provided that the relevant general norm is prejudicial (i.e. decisive for the decision). If proceedings are already pending at the Constitutional Court in which the relevant norm is prejudicial, the latter initiates an ex officio norm review process.

The person subject to the law can submit an application to the competent court to review norms, but there is no specific right to apply. However, if there are doubts about the constitutionality of a law or the legality of an ordinance, the courts are obliged to submit such an application ex officio.

In the event that a court does not submit an application for review of norms, there has been the possibility of a party application (also called subsidiary application) since January 1, 2015 : Any person who is a party to a case decided by an ordinary court in the first instance can do so claims to have violated their rights due to the application of a constitutional or unlawful general norm , to submit an application to the Constitutional Court for an examination of the norm in question on the occasion of an appeal against this decision ( Art. 139 Para. 1 Z 4 B-VG and Art . 140 para. 1 no. 1 lit.d B-VG). There is no such subsidiary request in the area of ​​administrative jurisdiction. However, in accordance with Art. 144 B-VG , every person concerned can appeal to the Constitutional Court (within the framework of the so-called special administrative jurisdiction ) if their subjective rights have been violated by the application of a general rule by an administrative court (or if they have been violated by a decision of an administrative court has been violated in its constitutionally guaranteed rights). In the proceedings pending before the Constitutional Court, the latter decides on the official initiation of a norm control procedure.

In the event that a law takes effect directly without a decision by a court or an administrative authority, the person subject to the law has the option of filing an individual application ( Art. 139 para. 1 no. 3 B-VG and Art. 140 para. 1 no. 1 lit. c B-VG). However, the individual application is tied to certain requirements, which the Constitutional Court strictly interprets. First of all, an individual application requires current and immediate impairment of the applicant. In particular, there is no immediacy if a notification or a court decision has already implemented the general norm in an individual-specific manner. Furthermore, a current impairment of the applicant is required, a mere potential impairment is not sufficient. In addition to these prerequisites, which must also be present in the "detour" via a judicial or administrative procedure, the Constitutional Court also examines the reasonableness of a regular administrative or judicial procedure, since the individual application was introduced as a subsidiary legal remedy. A detour is not reasonable if the applicant either has no administrative or judicial procedure or if this detour would involve particularly lengthy, expensive or complex procedures. In the constant jurisprudence, the VfGH has also considered hopeless applications for notices to be reasonable, provided they do not have to be accompanied by expensive documents (for example in the case of a building permit). In any case, however, it is unreasonable to make yourself liable to prosecution in order to obtain a notice or judgment.

If the Constitutional Court finds a general norm to be unlawful, the repeal will come into force on the day on which the repeal is announced ( Art. 139 para. 5 or Art. 140 para. 5 B-VG ), unless the Constitutional Court has determined another deadline. The repeal is only effective for the future; the old legal situation usually continues to apply to the facts that have already been implemented. However, the VfGH can, in exceptional cases, repeal retrospectively. Regardless of such a ruling, the repealed norm is no longer applicable to the legal case that led to the initiation of the normative review procedure (“incident”). The fact that the complainant is better off compared to the other affected parties is sometimes referred to as the grabber's bonus .

literature

Individual evidence

  1. ^ Pitfall in appeals against the development plan - Attorney Dortmund. Retrieved March 5, 2018 .
  2. ↑ Instead administrative judicial declaratory action : Michael , ZJS 6/2014, pp. 621, 622 (by the way, North Rhine-Westphalia is also mentioned there, but which introduced the more extensive administrative judicial review of norms on January 1, 2019, see § 109a JustG NRW )
  3. ↑ Art. 98 p. 4 BayVerf
  4. ↑ Art. 132 HV
  5. ↑ § 4 AGVwGO
  6. ↑ see e.g. ECLI : DE: OVGRLP : 2008: 0403. 7C11220.07.0A
  7. ↑ § 215 BauGB - deadline for the assertion of the violation of regulations - laws . In: JuraForum.de . ( juraforum.de [accessed on March 5, 2018]).
  8. ↑ Legal costs in the administrative process | Administrative court of Lüneburg. Retrieved on March 5, 2018 (German).
  9. ↑ Decisions. Retrieved March 5, 2018 .
  10. ↑ Section 67 (4) VwGO; Harald Brennecke: Legal remedy against development plan - but correct. Retrieved March 5, 2018 .
  11. ↑ See Art 15, 18 ff State Court Act (StGHG), LGBl 32/2004.