Materiality theory

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The materiality theory was developed by the Federal Constitutional Court and states that in the area of subordinate standardization, essential questions of the exercise and interference of fundamental rights must be regulated by the parliament itself.

The basis of the theory is the doctrine of the reservation of the law , according to which, even outside of the fundamental legal reservations , certain measures of the state authority require the authorization by simple law , which in turn must itself be constitutional, as well as the principle of democracy . Laws must also be formulated with sufficient precision .

If the legislature authorizes the administration to issue statutory ordinances or statutes , it may not delegate the essential decisions to the administration. The theory thus has two fundamental implications. On the one hand, it questions the scope of the reservation of the law, which is particularly relevant for the management of benefits within the framework of legally adopted budgets , but on the other hand it also questions the intensity of the proviso , i.e. how comprehensively the formal law (parliamentary law) should already limit the matter to be regulated; in order to preserve the administrative room for maneuver, aspects should namely be allowed to be specified by subordinate law. The more serious a statutory violation of fundamental rights is planned, the more intense the form of the legal reservation must be. The legislature or statute-giver (government, administration) has a certain leeway within this framework, which the parliamentary legislator must specify, within which he can act politically, i.e. according to considerations of expediency, independently.

Essential questions

The Federal Constitutional Court derives the so-called materiality theory from the reservation of the law . "This obliges the parliamentary legislator to make essential regulations that are relevant for the realization of fundamental rights and not to leave them to other norm-makers or the executive [...]."

The essential questions that are subject to parliamentary scrutiny include all questions that are "[...] essential for the exercise of fundamental rights [...] [...]", regardless of whether freedom or equality rights are affected in the specific case . This does not only apply to classic interventions in the area of ​​fundamental rights through state action. In particular, this also includes the more detailed regulation of fundamental rights of participation and protection obligations .

In addition, all actions relevant to fundamental rights that appear to be equivalent to an encroachment on fundamental rights are essential.

Ultimately, this also includes all the other essential questions which, because of their importance for the people, must be decided by Parliament. This includes according to the case, for example, the subsidization of press companies , the lending and Präklusionsregeln during the administrative procedure law.

The materiality theory does not prevent the legislature from authorizing the government and administration to issue sub-statutory norms (ordinances, statutes, etc.). The requirements for the admissibility of the interference must, however, be regulated in the Parliament Act as a legal basis with sufficient clarity and definition.

The necessary density of regulations in the Parliamentary Act increases in principle with the importance of the regulation for the individual or for the general public.

What is sufficiently clear and specific in each individual case, however, depends on the regulated matter: "How far the legislature itself has to determine the essential guidelines for the protected area of ​​life can only be assessed with a view to the subject area and the nature of the subject matter of the regulation [...] “For example, the legislature for quality assurance in teaching cannot itself make detailed specifications on teaching content, since it must for its part observe the teaching freedom of the teacher.

In principle, the following should therefore be stated:

  • Essentials are to be regulated by the legislature.
  • The essentials must be in the legal norm (at least the facts and legal consequences ).
  • The more essential the subject, the more detailed and precise the regulation must be.
  • How detailed the regulation in the law must and may be depends, on the other hand, on the respective subject area

Ordinances

For statutory ordinances at the federal level , Article 80 of the Basic Law makes special requirements, which are also found similarly in the state constitutions. According to Art. 80, Paragraph 1, Sentence 2 of the Basic Law, the authorization to issue ordinances must be adequately defined in terms of content, purpose and extent.

“The purpose of the regulation in Article 80.1 of the Basic Law is to prevent Parliament from relinquishing its responsibility as a legislative body. It should not be able to transfer part of its legislative power to the executive without considering the limits of this power and having outlined these according to tendency and program so precisely that it is already recognizable and predictable from the authorization what should be permissible towards the citizen "

- BVerfGE 78, 249 (272)

Statutes

According to the prevailing opinion , Art. 80 GG does not apply directly to autonomous statutes . However, the case law applies the rule in the result in a corresponding manner.

Reverse materiality theory

In technology and environmental law , state laws increasingly refer to the rules of private standardization associations. Because this shifts the definition of protection standards to areas outside of state legislation without their importance becoming less important, a kind of “reverse materiality theory” has been spoken of “with serious mockery”: The essentials are not in the law, but in administrative regulations or private ones technical regulations.

Key decisions

  • BVerfGE 33, 1 [10 ff.] - Prisoners : Basic rights of prisoners could only be restricted by law or on the basis of a law; but acceptable for a transitional period without a legal basis; A future penal law must draw the limits of the exercise of freedom of expression.
  • BVerfGE 33, 125 [158 f.] - Specialist : Requirements for interventions in the freedom of occupation by statute; Art. 80 GG applies accordingly.
  • BVerfGE 33, 303 [346] - Numerus clausus I: The legislature itself has to make the essential decisions on the requirements for the ordering of absolute admission restrictions and on the selection criteria to be applied.
  • BVerfGE 34, 165 [192] - (hess.) Support level : The essential characteristics of a support level introduced as compulsory school would have to be determined by law.
  • BVerfGE 41, 251 [260 f.] - Speyer-Kolleg : “The exclusion from an institution of the second educational path imposed as a regulatory measure encroaches on the basic right of Article 12, Paragraph 1 of the Basic Law and therefore requires a legal basis. If the lack of a legal basis is exceptionally acceptable for a transitional period, the authority to intervene in constitutionally protected positions is limited to what is indispensable in the specific case, taking into account the respective circumstances, for the orderly continuation of a functioning institution. "
  • BVerfGE 45, 400 [417 f.] - (Hess.) Upper level reform : The legislature has regulated the essentials of the design of grade 11 of the reformed upper level itself. He could leave details to the administration.
  • BVerfGE 47, 46 [78 ff.] - Sex education : the legislature must make the decision on the introduction of sex education in public schools itself
  • BVerfGE 49, 89 [126 ff.] - Kalkar I : Essential decisions and specificity requirements in technology law (AKW Kalkar)
  • BVerfGE 58, 257 [267 et seq.] - Dismissal from school : The constitutional requirements for certainty are sufficient if the content and scope of the granted authorization are described with the term “transfers” in the authorization norm.
  • BVerfGE 76, 171 [184 ff.] - Code of professional conduct for lawyers: Necessity of transitional periods in order to avoid a situation that is even further from the constitutional order than the previous one.
  • BVerfGE 78, 249 [272] - Incorrect registration fee : "Sense of the regulation of Art. 80 (1) GG"
  • BVerfGE 83, 130 [142 ff.] - Josephine Mutzenbacher : The parliamentary law must adequately regulate the selection of assessors for the federal inspection body.
  • BVerfGE 90, 286 [383 ff.] - AWACS : There was a parliamentary reservation if German soldiers were “involved in armed operations”.
  • BVerfGE 98, 218 [251 ff.] - Spelling reform : Do not count among the "essential" decisions that the legislature should have made itself.
  • BVerfGE 105, 279 [305] - Osho I : For the information activity of the federal government within the framework of state management, no special legal authorization is required beyond the assignment of the task of state management, even if it leads to indirect, factual impairments of fundamental rights.
  • BVerfGE 108, 282 [310 ff.] - Headscarf Ludin / headscarf-wearing teacher : A prohibition for teachers to wear a headscarf in school and class does not find a sufficiently specific legal basis in the applicable law of the state of Baden-Württemberg.
  • BVerfGE 116, 24 [58] - Naturalization: For the case of the immediate withdrawal of a naturalization, about the prerequisites of which the naturalized person has deceived himself, § 48 Administrative Procedure Act for Baden-Württemberg offers a sufficient basis for authorization.
  • BVerfGE 128, 282 [p. 317 ff. = Rn. 74 ff] - Compulsory treatment in the penal system: The essential prerequisites for the admissibility of compulsory treatment require clear and specific legal regulation. This also applies to the requirements for the procedure.
  • BVerfGE 134, 141 [Principles, Rn. 125-128] - Observation of MPs: The observation of a MP by the authorities of the Office for the Protection of the Constitution is an interference with the free mandate, which can be justified to protect the free democratic basic order. This interference is subject to strict proportionality requirements and requires a legal basis that meets the principles of the legal reservation. However, this legal basis does not have to expressly name the interference with the free mandate.
  • BVerfGE 141, 143 [Rn. 59 ff.] - Accreditation of study programs: The legislature should not largely leave essential decisions on accreditation to other actors, but must make them itself, taking into account the inherent rationality of science.
  • BVerfGE 147, 253 [Rn. 115 ff.] - Allocation of study places for the subject of human medicine: The legislature itself has to regulate the questions that are essential for the allocation of scarce study places in the subject of human medicine. In particular, he must determine the type of selection criteria himself. It should, however, allow the universities some leeway to specify these selection criteria.

literature

  • Fiete Kalscheuer, Annika Jacobsen: The parliamentary reservation: materiality theory as a weighing theory . In: DÖV . 2018, p. 523-529 .
  • Sonja Röder: The legal reservation of the Charter of Fundamental Rights of the Union in the light of a European theory of materiality . Nomos Verlag , 1st edition 2007, ISBN print: 978-3-8329-2785-1, ISBN online: 978-3-8452-0347-8, doi.org/10.5771/9783845203478 (dissertation, University of Cologne )
  • Jürgen Staupe : Parliamentary reservation and power to delegate: on the "materiality theory" and the scope of legislative regulatory competence, especially in school law. (Additional university thesis: Universität Hamburg, dissertation, 1985). Duncker and Humblot, Berlin 1986. ISBN 3-428-06045-8 .
  • Andreas Voßkuhle : Basic knowledge - public law: the principle of the reservation of the law . In: JuS . 2007, p. 118-119 .

See also

Other countries

In Switzerland, Article 164 of the Federal Constitution of the Swiss Confederation (BV) is an explicit regulation that ensures that sufficient democratic legitimacy is maintained for fundamental decisions and that essentially corresponds to the above-mentioned principles.

Individual evidence

  1. ↑ Martin Morlok , Lothar Michael : Staatsorganisationsrecht , Nomos, Baden-Baden, 4th edition 2019, ISBN 978-3-8487-5372-7 . P. 163 f.
  2. ↑ BVerfGE 147, 253 - Allocation of university places for the subject of human medicine, paragraph 116
  3. ↑ BVerfGE 47, 46 (83) - sex education classes
  4. ↑ BVerfGE 47, 46 (79) - Sex education : "[...] without, however, having to distinguish between interventions and services."
  5. ^ Fiete Kalscheuer, Annika Jacobsen: The parliamentary reservation: materiality theory as a weighing theory . In: DÖV 2018, pp. 523-529 . Pp. 524-525 .
  6. ^ Andreas Voßkuhle : Basic knowledge - public law: The principle of the reservation of the law . In: JuS . 2007, p. 118-119 , p. 119 .
  7. ↑ BVerfGE 141, 143 - Accreditation of study programs, paragraph 59 .
  8. ↑ BVerfGE 33, 125 [158 f.] - Specialist = VerwRspr 1973, p. 263-280 p. 269 f.
  9. ↑ Horst Dreier : The three state powers under the sign of Europeanization and privatization , Public Administration (DöV) 2002, p. 537 (542)
  10. ↑ See Horst Dreier: The three state powers under the sign of Europeanization and privatization , The public administration (DöV) 2002, p. 537 (542) with reference to Jürgen Salzwedel and Rainer Wahl .