Quotation requirement

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As Zitiergebot is referred to in Art. 19 1, sentence 2, para. Of German constitution fixed duty of the legislature , when a restriction of basic rights the affected by a law or on the basis of a law fundamental right to name indicating the constitution article. If the citation requirement is violated, the law is formally unconstitutional . The Basic Law also recognizes a citation requirement in the broader sense in Article 80.1 sentence 3 of the Basic Law, according to which statutory ordinances issued by the federal government , a federal minister or a state government must indicate their legal basis. There are also many simple legal quotation requirements.

Basic idea of ​​quotation requirements

The requirements of a citation requirement are based on the idea of ​​a legal hierarchy, according to which higher-ranking law takes precedence over lower-ranking law, i.e. in descending order European and constitutional law , parliamentary law, ordinance law , statute law and contract law and / or legal acts (such as administrative acts that as legal acts under public law but take precedence over contract law). Due to the obligation to quote the higher-ranking law when it is implemented by lower legal forms, the application and interpretation of the higher-ranking norm should be made transparent and secured regularly for reasons of legal certainty and legal clarity.

Quotation requirements can be found on the most varied levels of the norms and in the most varied of legal areas. Article 19 (1) sentence 2 and Article 80 (1) sentence 3 of the Basic Law are the best-known quotation requirements in the relationship between constitutional law and simple statutory law, or from this to ordinance law. However, quotation requirements are also used below these standards. According to criminal procedure law, for certain enforcement measures, such as a search warrant or an arrest warrant , the accused criminal offense must be identified; in tenancy law, for certain legal acts, such as the termination of living space in a two-family house, the tenant must specify the exact legal passage to which the Notice of termination is supported ( § 573a BGB ), from collective agreements the regulation is known that certain forms of employment contracts, such as B. Part-time employment in accordance with Section 14 (2) Part-time and Temporary Employment Act , which must specify the legal basis by quoting the law.

The violation of such quotation requirements makes the respective legal acts incorrect and therefore ineffective.

History of the constitutional citation requirement

The Weimar Constitution had no comparable requirement for the protection of fundamental rights. This repeatedly led to an unconscious restriction of basic rights by the Reich legislature. This was all the more true as the constitution could be changed by every imperial law, i.e. also outside the imperial constitution, as long as it was passed with the required majority of two thirds (of the legal members). During the deliberations of the Parliamentary Council on the GG, Hermann von Mangoldt requested that the quotation requirement contained in the draft of the GG from the experience with the Weimar Constitution, as unnecessary restraint of the legislature, be deleted again. This was contradicted by Thomas Dehler with the objection, "We want these shackles of the legislature and therefore ask to maintain sentence 2" , so that Article 19, Paragraph 1 was included in the Basic Law. This discussion and the argumentation of v. Mangoldt's objection to the legislature was largely rejected. One of the first comments on the GG from 1949 says: “Under the rule of the BGG [Bonn Basic Law] , interventions in GR. [Fundamental rights] can be something so extraordinary that the legislature may only decide to do so after careful consideration and in a manner that is recognizable to everyone from the outset. “The following interpretation by the Federal Constitutional Court followed this strict assessment only to a limited extent.

Restrictive interpretation of the citation requirement

The sense and purpose of the citation requirement is a warning and reflection function for the legislation and a clarification function for the application and interpretation of the law . Just as legislation should consider the effects of a law on fundamental rights, the interpretation of laws by virtue of application and interpretation should be in the spirit of which fundamental rights the law alone is authorized to intervene. The Federal Constitutional Court countered the fear that the quotation requirement would be overstrained with a restrictive application of Article 19.1 sentence 2 of the Basic Law.

According to the judgment of the Federal Constitutional Court, the main task of the quotation requirement is to warn the legislature against a frivolous or unintentional restriction of the fundamental rights and it further deduces from this: "This is a formal requirement that needs a narrow interpretation so that it does not become empty Formality freezes and unnecessarily hampers the work of the legislature, which specifies the constitutional order. The citation requirement is only intended to exclude the creation of new possibilities for encroaching on fundamental rights, alien to the previous law, without the legislature being accountable and expressly recognizing this. ” According to this, a restrictive interpretation of Art. 19 Para. 1 S. 1 GG developed and the validity of the citation requirement is related to laws "which aim to limit a basic right beyond the limits imposed on it" , whereby the legislature must be authorized to limit this in the GG. The basic right and its restriction must be explicitly mentioned in the legal text, but it is not necessary that this be done in direct textual connection with the regulation restricting the basic right.

Restrictions that do not require quotation

The case law of the Federal Constitutional Court sets out the restrictions on the quotation requirement under Article 19.1 sentence 2 of the Basic Law in a number of cases, whereby the following principles apply to the application of the quotation requirement.

Since this does not assume any warning function for the legislator bound by the constitution, preconstitutional laws are naturally not subject to the quotation requirement . The same applies to post-constitutional laws that merely continue to (completely) unchanged existing restrictions on fundamental rights.

Furthermore, general laws within the meaning of Article 5, Paragraph 2 of the Basic Law that intervene in freedom of expression and information , including freedom of the press and freedom of broadcasting ( Article 5, Paragraph 1 of the Basic Law), are not subject to citation , because otherwise almost every law in Article 5 Abs. 1 GG would have to be cited as restricted and pure formality is seen in it. The same view on avoiding formalism is represented in relation to the general freedom of action ( Article 2, Paragraph 1 of the Basic Law), which is affected by every legal prohibition or requirement. Finally, in the decision of May 30, 1973 cited in the previous section, the Federal Constitutional Court considered a reference to the restriction of fundamental rights to be dispensable because the encroachment on fundamental rights was obvious .

The quotation requirement should not apply when it comes to fundamental rights that make so-called “immanent fundamental rights barriers” recognizable, fundamental rights that are thus granted without reservation. The reason why the fundamental right does not have to be mentioned is for this type that there is “no restriction in the strict sense”. The same approach applies if there is no encroachment required in Article 19.1 sentence 1 of the Basic Law because the fundamental right itself refers to a specific legal regulation within the framework of the respective legal reservation or its form in a law (such as Article 3 , Art. 6 , Art. 9 , Art. 12 Paragraph 1 Sentence 2, Art. 14 Paragraph 3 GG).

Insofar as it is concluded in the legal literature that the quotation requirement only applies if a fundamental right is subject to legal reservation, this must be supplemented to include so-called restriction reservations, since legal reservations can also be of a structuring nature and in this respect are not subject to the citation requirement.

In summary, it can be stated that the quotation requirement only applies in cases of interference with the right to life and physical integrity and freedom of the person according to Article 2, Paragraph 2 of the Basic Law, and in cases of interference with freedom of assembly according to Article 8 of the Basic Law , in the cases of encroachment on the secrecy of letters as well as the postal and telecommunications secrecy according to Art. 10 GG, in the cases of encroachment on freedom of movement according to Art. 11 GG and in cases of encroachment on the inviolability of the home according to Art. 13 GG applies.

criticism

The BVerfG's strongly restrictive interpretation of the citation requirement in the event of encroachments on fundamental rights according to Article 19.1 sentence 2 of the Basic Law has not remained without contradiction in jurisprudence, whereby the reason for exemption of an obvious restriction is called into question. The reduction of the importance of the citation requirement to a mere warning function is also felt to be too one-sided, because the signal function, which is also part of the provision, is neglected.

Quotation requirement for statutory instruments

According to Article 80.1 sentence 1 of the Basic Law, the federal government, a federal minister or the state governments can be empowered by law to issue statutory ordinances. In addition to the content, purpose and extent of the authorization granted, the legal basis in the ordinance issued must also be specified in accordance with sentence 3. This quotation requirement serves for legal clarity and requires the exact reproduction of the legal passage containing the authorization. An ordinance that violates the quotation requirement is void.

literature

  • Thomas Schwarz: The citation requirements in the Basic Law , at the same time dissertation at the University of Bonn, 2001. Nomos-Verlagsgesellschaft, Baden-Baden 2002. ISBN 3-7890-7844-1 .

Individual evidence

  1. ^ BAG, judgment of June 17, 2009, Az. 7 AZR 193/08 ( Memento of September 14, 2009 in the Internet Archive ).
  2. ^ Minutes of the Parliamentary Council 48/49, p. 620, meeting of February 8, 1949
  3. ↑ Bonn Commentary, Note on Art. 19 Para. 1 GG, 1949
  4. ↑ BVerfGE 35, 185 , 188 f., Decision of May 30, 1973, BVerfG judgment of May 30, 2009, Az. 2 BvL 4/73 ( Memento of April 26, 2007 in the Internet Archive ); see. also: BVerfGE 28, 36 , 46; BVerfGE 5, 13 , 16; Page no longer available , search in web archives: BVerfGE 15/288 , 293.@1@ 2Template: Toter Link / www.servat.unibe.ch
  5. ↑ BVerfGE 28, 55 , 62; Decision of February 18, 1970.
  6. ↑ BVerfGE 83, 130 , 154; BVerfGE 113, 348 , 366.
  7. ↑ Hans D. Jarass and Bodo Pieroth: Basic Law for the Federal Republic of Germany, Commentary , 10th edition 2009, Beck Munich, ISBN 978-3-406-58375-9 , Art. 19 Rn. 7th
  8. ↑ Hömig (Ed.): Basic Law, 8th edition 2007, Art. 19 Rn. 4, Nomos Verlag, ISBN 978-3-8329-2442-3 .
  9. ↑ Hans D. Jarass and Bodo Pieroth: Basic Law for the Federal Republic of Germany, Commentary , 10th edition 2009, Beck Munich, ISBN 978-3-406-58375-9 , Art. 19 Rn. 4 and 5; Volker Epping: Grundrechte , 3rd edition 2007, Springer, ISBN 978-3-540-73807-7 , p. 293 f .; Martin Gellermann: Basic rights in simple legal guise , Mohr Siebeck, 2000, ISBN 978-3-16-147441-5 , p. 303 f.
  10. ↑ Hans D. Jarass and Bodo Pieroth: Basic Law for the Federal Republic of Germany, Commentary , 10th edition 2009, Beck Munich, ISBN 978-3-406-58375-9 , Art. 19 Rn. 6th
  11. ↑ Jürgen Bröhmer: Transparency as a constitutional principle , Mohr Siebeck, 2004, ISBN 978-3-16-148420-9 , p. 173 f .; Denninger, in AK - Basic Law, Art. 19 Para. 1, Rn. 18th
  12. ↑ BVerfGE 101, 1 , 41 f.
  13. ↑ Jarass-Pieroth, Basic Law, Commentary, 10th edition, Munich 2009, ISBN 978-3-406-58375-9 , Art. 80 Rn. 16.
  14. ↑ BVerfGE 101, 1 , 43; BVerwG NJW 1971, 1626; Jarass-Pieroth, Basic Law, Commentary, 10th edition, Munich 2009, ISBN 978-3-406-58375-9 , Art. 80 Rn. 20th