Authority to reject norms
Under norm rejection competence one generally understands the authority to be allowed to disregard a legal norm recognized as unlawful because of a violation of higher-ranking law . Since in a constitutional state the executive and the judiciary are bound by law and statute, but this can only apply to effective law, the question arises of how the respective body should proceed if it considers a legal norm to be illegal and void . In this respect, one speaks of judicial authority to reject norms and official authority to reject norms .
The competence to reject standards is to be distinguished from the competence to review standards .
Judicial authority to reject norms
For the rejection of the norm by a court , a distinction must be made according to the type of legal norm:
- If it is a post-constitutional law of the Federation or a Land , the court must suspend the proceedings in accordance with Article 100 of the Basic Law (GG) in order to submit the question to the Federal Constitutional Court as part of a specific review of norms , if this Basic Law .
- Only the Federal Constitutional Court or the state constitutional courts have the authority to reject these laws. The reason is that the Basic Law orders a basic respect for parliament as the norm-giver, so that not just any court, but only constitutional organs can decide on the validity.
- If it is a law that could violate the constitution of a country , the court must, according to Art. 100 GG, submit the question to the competent constitutional court (usually the constitutional court of the respective country) as to whether the law is compatible with the country's constitution .
- If it is a legal norm that is ranked below a law, or a pre-constitutional law , the court itself decides whether the norm is compatible with higher-ranking law.
Since these regulations can be derived from the constitution, they are essentially undisputed.
Authority to reject norms
The authority to reject norms is much more contentious. Since authorities are generally bound by law and statute according to Article 20 (3) of the Basic Law, but on the other hand, unlike courts, are not empowered to make binding decisions on legal questions - this is the task of the judiciary - a particular conflict arises for authorities:
- On the one hand, respect for the normative dictates that a legal norm be regarded as valid until a court has decided on the legality of the legal norm
- on the other hand, the obligation to be bound by law and statute requires only valid legal norms to be applied, in particular if another, earlier legal norm would have to be applied if the legal norm in question is null and void .
In this respect, the authority to reject norms is controversial.
At least for certain legal norms that are ranked under a state law, there is, however, the possibility for authorities to pursue an administrative judicial review of norms according to § 47 VwGO and to avoid the conflict. However, this option does not exist for federal subordinate legal norms and laws.
