regulation

In Germany and Austria, a regulation is a legal norm that is issued by a government or administrative body (executive). In addition to government regulations, Switzerland also has parliamentary and court regulations. The scope of what a regulation is permitted to regulate and its scope are different in Germany , Austria and Switzerland .

In the legal system of other countries, an ordinance is a legal act issued by the government or an administrative body.

In the hierarchy of norms , ordinances are ranked below formal laws (parliamentary laws ), but above statutes and administrative regulations .

In the EU , a regulation is a legal act that has immediate effect after its adoption in the member states , i. H. not like a directive has to be transposed into national law by national parliaments .

Germany

An ordinance (sometimes also called a statutory ordinance , for example in Article 80 of the Basic Law ) always requires authorization to issue ordinances in a law passed by parliament . The author of a regulation is not the parliament but the executive ; that is why one speaks of executive law in the case of ordinances. The parliament may grant the executive the freedom to make unimportant decisions itself, but according to the materiality theory that was developed in the case law of the Federal Constitutional Court , it may not give up the essential decisions; Various important legal issues are considered “essential”, such as, but not limited to, encroachments on fundamental rights .

An ordinance is “law in the material sense” because, like a law, it establishes rights and obligations towards everyone, ie “applies” to everyone. However, it is not “law in the formal sense”, as it was not discussed and passed in a formal legislative procedure by the German Bundestag (but possibly by the Bundesrat ) or a state parliament.

Ordinances based on an authorization in federal law

According to Article 80, Paragraph 1 of the Basic Law , a federal law can in principle only authorize the federal government , a federal ministry or the state governments to issue ordinances . These bodies can also delegate the authorization to issue ordinances, which, however, requires that this further delegation is provided for in the federal law containing the original authorization; in addition, the transfer itself must take place by means of a statutory ordinance.

Ordinances of the federal government or a federal ministry require the approval of the Bundesrat

on certain topics and ordinances listed in Art. 80 (2) GG,
based on federal laws that require the consent of the Bundesrat, or
which are carried out by the federal states as a separate matter or on behalf of the federal government (in practice this is the majority of federal ordinances).

In individual cases, the approval of both the Bundesrat and the Bundestag is required (e.g. Section 51 (2) sentence 3 EStG ).

However, the Basic Law contains an opening clause for other legal regulations, so that, in deviation from this basic rule, the need for approval of the Federal Council can be stipulated or excluded in the law. In practice, most of the authorization bases in federal laws contain an express order as to whether the consent of the Bundesrat is required.

The granting of consent can - if this is expressly provided for in the law - be assumed if the Bundestag or Bundesrat has not refused it within a certain period.

Ordinances according to state law

In most of the German states , the requirements for the specificity of the authorization basis are less strict, and the group of authorities that can be authorized to issue ordinances is less strictly defined than in the federal government. In the police laws of all countries, general clauses authorize the police authorities to issue police ordinances for the purpose of averting danger .

Law or regulation?

Ordinances are laws in the material sense (see law ). Whether a legal norm is in a formal law (passed by a parliament) or in an ordinance often has (only) practical reasons. A parliamentary legislative process almost always takes several months - sometimes even longer - while ordinances can usually be passed more quickly. That is why it is common practice in many areas that the legislature does not regulate details - above all of a technical nature and those of administrative enforcement - but authorizes the administration to do so in a statutory ordinance.

On the one hand, this is entirely sensible because Parliament's capacities are limited and it cannot regulate everything itself and adapt to the constantly changing conditions; In addition, in many technical questions, the technical competence is more likely to be found in a ministry than in parliament. On the other hand, authorization to issue ordinances always means transferring power to the executive . This balance between legislative and executive power is to be ensured by Article 80.1 sentence 2 of the Basic Law, which requires that a law that authorizes a federal authority to issue a regulation defines the content, purpose and extent of the authorization. The legislature is thus forced to precisely describe the limits within which it leaves the power to legislate to the executive.

The abbreviation for a regulation is VO or V; Occasionally one also finds abbreviations such as DVXyG for implementing ordinance for the Xy law , which make the distinction between laws and ordinances more difficult.

As explained above, the process of creation is decisive for the distinction between law and ordinance (parliamentary or by the executive). The ending "-ordnung" does not automatically mean that it is a statutory ordinance. The Federal Doctors' Ordinance (BÄO) z. B. is a law, not an ordinance.

Procedure in the federal government for ordinances of the federal government or a federal ministry

The more detailed procedure for issuing federal statutory orders is regulated in the Basic Law, in the Joint Rules of Procedure of the Federal Ministries (GGO) and the rules of procedure of the constitutional bodies involved (Federal Government, Federal Council). It can be sketched as follows:

Coordination and preparation of the ministerial draft - A first draft must be thoroughly checked and coordinated before it is even forwarded to the Federal Cabinet or the Federal Council for approval. The draft that has been drawn up after the voting has been completed is referred to as the ministerial draft . According to Art. 80, Paragraph 62, Paragraph 2 of the GGO, numerous formalities apply to the drafting of ordinances which also apply to legislative proposals. The GGO contains detailed regulations on the structure and formal structure (Section 42), the justification (Section 43 (1) No. 5 to 9), the impact assessment, especially for public budgets and the economy (Section 44), and participation the other federal ministries and the commissioners (Section 45), the examination of formality and systematics (Section 46), the participation of the federal states, municipal umbrella organizations , affected specialist groups and federal associations (Section 47) and the publication and identification of drafts (Section 49). According to Sections 63 (2) and 50 of the GGO, the deadline for the final examination of the draft is at least four weeks, unless all parties involved agree to a shortening of the deadline.

Treatment in the Federal Cabinet - In many cases, the draft ordinance must be submitted to the Federal Cabinet . Referral to the Federal Cabinet is always required if the ordinance is issued by the Federal Government and not just by a Federal Ministry, if the ordinance is of general political importance, or if there are differences of opinion between the Federal Ministries involved. In the event of differences of opinion, however, the federal ministers concerned should attempt to reach an agreement personally; The Federal Chancellor can also intervene to settle the disagreement (Section 17 of the Federal Government's Rules of Procedure ). For submission to the cabinet, strict regulations apply to the information to be given there; these are contained in §§ 22, 23 and 51 GGO.

Transmission to the Federal Council - If the Federal Council has to approve the ordinance, it is sent by the Federal Chancellery to the President of the Federal Council (§ 64 GGO). Of course, this only happens after approval by the responsible Federal Minister or the Federal Cabinet. In practice, the head of the Federal Chancellery signs the letter to the President of the Federal Council if it is a ministerial ordinance. If, on the other hand, the entire federal government issues the ordinance as a collective body , the Federal Chancellor signs it (see Section 28 (1) of the Federal Government's rules of procedure).

Procedure in the Bundesrat - If the ordinance requires approval, the procedure in the Bundesrat, analogous to Article 76 (2) of the Basic Law, usually takes six weeks. After receipt of the submission, the President of the Bundesrat determines the responsible committees, one of which is in charge (Section 36 of the Bundesrat's rules of procedure). The draft is then published as a printed matter by the Federal Council. After examination by the responsible ministries of the federal states, which were already involved in drawing up the draft bill, but now have to develop a definitive position on the draft, the draft is discussed in the committees. These deliberations are concluded two weeks before the plenary session of the Federal Council and lead to recommendations by the committees, which are also distributed as printed matter. The state governments must now - if necessary by means of a collective resolution on unproblematic points - decide their position, which they then represent in the plenary session of the Federal Council. The result - approval, approval with stipulations (change requests) or rejection - is communicated immediately to the federal government. If the Federal Council has only given its approval (which is not infrequently the case), the ordinance must be resolved again by the Federal Cabinet or the responsible Federal Ministry, including the stipulations, in order to come into force.

Execution and promulgation - Once all the necessary approvals have been obtained, the ordinance must be executed in one original and then promulgated. For this purpose, Sections 66 to 68 GGO contain very detailed provisions. The original (on special paper) is produced by the Federal Ministry of Justice . The original of an ordinance of the Federal Government is signed by the Federal Chancellor (or representative) and the lead member of the Federal Government or his representative, the original of an ordinance of a Federal Ministry by the competent Federal Minister or his representative. In the case of ordinances of the Federal Government, the proclamation is initiated by the Federal Chancellery, in the case of ordinances of a Federal Ministry by the latter by forwarding the signed original to the editors of the Federal Law Gazette or the Federal Gazette for proclamation. In which of these proclamation organs the ordinance is proclaimed, § 76 GGO determines.

Federal Council initiatives

According to Article 80.3 of the Basic Law, the Federal Council also has the right of initiative for ordinances in addition to the respective authorized bodies, provided that its consent would be required to issue the ordinance. If the Federal Council has decided on an initiative to issue an ordinance, it forwards the draft to the Federal Government. The federal ministry authorized to issue the ordinance or - if the authorization is addressed to the federal government - the lead federal ministry then decides on the further handling of the submission in accordance with Section 63 (1) GGO. The Federal Council will be informed of the decision; In any case, when a regulation is issued, it must be referred to again on the basis of the initiative (Section 63 (2) GGO). This procedure then runs exactly the same as with an ordinance that has been initiated by the federal government or a federal ministry itself.

Changes to the ordinance by the Bundestag

The Bundestag cannot issue ordinances or take a formal initiative to issue an ordinance. The reason for this is that he has transferred the power to issue legal provisions to other bodies through the authorization to issue ordinances contained in the law.

However, because of its extensive legislative right, the Bundestag can - if necessary with the consent of the Bundesrat - amend statutory instruments. Since, according to the earlier legal opinion, the amended parts of the ordinance were then formally a law and no longer an ordinance, a so-called pitting clause was inserted in such cases , with which the originally authorized bodies were authorized to also restore the parts of the ordinance changed by the law in accordance with to change the original authorization basis. According to the more recent case law of the Federal Constitutional Court , the stoning clause only has a clarifying meaning. In more recent amendment laws, it is therefore sometimes missing, for example in the law on the reform of the investigation of facts in foreclosure, which changes the judicial collection order.

Furthermore, the Bundestag can reserve its own right to participate in the standardization process in the law that contains the basis for authorization of the ordinance. This has been done, for example, in the Recycling and Waste Management Act. Section 59 provides that certain ordinances (in particular the so-called packaging ordinance and its amending ordinances) must be submitted to the Bundestag before the Bundesrat. These can be changed or rejected within a period by resolution of the Bundestag. However, such participation by the Bundestag in the proceedings is the exception.

Number of regulations

As of December 31, 2009, German federal law comprised 3,440 ordinances (information according to reference A, without amendment regulations and standards to international agreements).

Austria

An ordinance is a general legal norm issued unilaterally by administrative bodies, which is aimed at a general group of people.

It differs from formal law in the legislative body : the formal law is enacted by the legislature , the ordinance by the administrative as part of the executive . Since ordinances in the tiered structure of the legal system are below formal laws, they may only specify the law, but not change it. Exceptions are the emergency ordinances of the Federal President and the state governments , which can be issued if the legislature remains inactive due to a state crisis. Regulations cannot be distinguished from laws in terms of content; What regulates an ordinance could also be regulated by the legislature by law. In fact, there are a few ordinances that were subsequently incorporated into law (for example various ordinances in the area of employee protection law).

By adopting the regulation differs by its visibility : Decrees are official internal transfers, acting during Regulations outside the authority, so from the outside. On the other hand, there is no difference in the group of recipients: Both work for a group of people no longer determined by individuals.

On the other hand, the ordinance differs from the notification in its group of recipients: Ordinances are addressed to a generally determined majority, i.e. a group no longer determined by individuals, while the notification is addressed to one or more generally determined persons who are determined by individuals or at least can be determined are (for example, all shareholders of a GmbH). The drawing of boundaries is not always easy in individual cases, but it is decisive for the form of legal protection .

The most important constitutional basis is Article 18 (2) of the Federal Constitutional Law (B-VG) , according to which every administrative authority may issue ordinances on the basis of the laws within its (factual and local) sphere of activity. This regulation not only includes the authority's duty to issue a regulation only within the legally defined framework, but also binds the (ordinary) legislator to adequately determine the content of legal regulations. Laws that give the administrative authority too much leeway are therefore unconstitutional.

The subsequent review of whether a regulation complies with the law is the responsibility of the Constitutional Court as part of a regulation review procedure.

Switzerland

Ordinances are subordinate, legislative decrees of the lowest level that are not subject to a referendum . They require a basis in a federal law or directly in the federal constitution . The ordinances can be independent or dependent. Independent ordinances are based directly on the Constitution; the otherwise usual intermediate stage of the formal law does not apply. Independent ordinances are rare (example: emergency ordinances, see emergency law ). Dependent ordinances are the norm. They are based on a delegation norm in a law. So they are dependent on the respective law and cease to exist when the law ceases to exist. The delegation norm must be sufficiently determined (no blanket delegation), which can be checked by the Federal Supreme Court in the specific application.

Federal level

Ordinances are generally issued by the Federal Council ( Art. 182 Para. 1 Federal Constitution), by a department or by a subordinate administrative unit ( Art. 48 Government and Administrative Organization Act). However, there are also ordinances of the Federal Assembly ( Article 163, Paragraph 1 of the Federal Constitution, Article 22, Paragraph 2 of the Parliament Act), in particular in the area of parliamentary law, and of the Federal Supreme Court ( Article 188, Paragraph 3 of the Federal Constitution) for rules on self-administration of the judiciary.

Canton level

In principle, the term ordinance is used in the same way in the cantons as in the Confederation, and essentially the same rules apply as to when an ordinance is permissible. The term decree is sometimes used synonymously at canton level .