Rejection competence
Under fault competence the possibility of a will court understood, a legal rule on the grounds that it was invalid, shall not apply. It is conceivable that the legal norm will only not be applied to the specific legal dispute that the court has to hear. It is also conceivable, however, that the court could declare the standard invalid.
According to the principle of separation of powers , it is the task of the legislature to enact laws (in the formal sense). The executive can also issue legal norms, but their rank is subject to formal laws, e. B. Statutes and ordinances (laws in the material sense only). If the judiciary can decide on the existence of norms, this represents a breach of the principle of separation of powers.
Situation in Germany
Ability to reject formal laws
Formal laws are passed by parliament (federal or state). If it considers a law, the validity of which is important for its decision, to be unconstitutional, courts must suspend the proceedings and appeal to the Federal Constitutional Court (or the constitutional court of the country whose constitution is supposed to conflict with the law), Art. 100 GG . The Federal Constitutional Court therefore has the monopoly of rejection. Formal laws can only be declared illegal by the Federal Constitutional Court. This decision then applies not only between the parties, but in general.
The same applies to the constitutional courts of the federal states with regard to formal state laws that violate the state constitution (cf., for example, for Baden-Württemberg, Article 68, Paragraph 1, Clause 1, No. 3 of the state constitution).
Not only courts can appeal to the constitutional courts for control of a law. Any individual who claims to have been violated in their basic rights by public authority can do so (under certain conditions such as the previous exhaustion of the legal process ), Art. 93.1 No. 4a GG. For the otherwise entitled cf. Art. 93 GG as a whole.
Rejection competence with regard to legal norms that are ranked under formal laws
Legal norms issued by the executive branch are lower in rank than formal laws. Since the executive branch is not directly democratically legitimized, its norms are also less worthy of protection. They can be declared illegal or unconstitutional by any court. However, this only works between the parties to the dispute. The legal norm remains in force and can certainly be considered valid and applied by other courts. Only subregional legal norms (statutes and ordinances at the regional level) can be made generally binding by the Higher Administrative Court (in southern Germany: Administrative Court ) in the norms control procedure according to Section 47 VwGO can be declared invalid.
European Court of Justice
With the Photo Frost ruling of 1987, the ECJ established its monopoly on rejection of Union acts. He decides in the preliminary ruling procedure .
