DEVOLUTION OF POWERS IN GERMANY. Legal Memorandum

Transcription

1 DEVOLUTION OF POWERS IN GERMANY Legal Memorandum August 2013

2 DEVOLUTION OF POWERS IN GERMANY Executive Summary The purpose of this memorandum is to identify the core elements of the federalist structure in Germany and how political, legislative, and administrative powers are allocated among the federal government, the federal states, and local authorities. The Federal Republic of Germany is a federalist state with a central federal government and sixteen federal states, or Länder. The German Constitution, also called the Basic Law, sets forth the framework for the allocation of powers between the federal government and the federal states. Additionally, statutes and regulations have been enacted at the federal and state levels to further delineate the responsibilities of the federal government, the federal states, and the local authorities. In general, the federal government maintains exclusive authority over foreign policy issues; defense, including the protection of the civil population; citizenship; currency and money policy; customs and trading; intellectual property rights; post and telecommunications; air travel and rail; and cooperation between the federal government and the Länder concerning criminal police work. The federal government and the Länder have concurrent power over civil law; criminal law; court organization; commercial law; labor law; public welfare law; state expropriations; land distributions; road maintenance; traffic and highway construction; water management; and waste disposal. Residual powers are devolved to the Länder and typically include education (especially at the primary and secondary level), law enforcement, regulation of radio and television, and cultural issues. While Land and local government relations vary widely, the Länder commonly delegate administrative responsibilities to the municipalities. Notably, under the principle of subsidiarity, districts may only assume responsibility for a task if it exceeds the capacity of a municipality. The Federal Constitutional Court adjudicates disputes in relation to the allocation of powers and any constitutional questions.

3 TABLE OF CONTENTS Statement of Purpose 1 Introduction 1 Allocation of Political Power in Germany 2 Federal Government 2 Bundestag 2 Bundesrat 5 Federal Chancellor 5 President 6 Federal States (Länder) 6 Local Authorities 6 Allocation of Legislative Power in Germany 7 Allocation of Powers to the Federal Government 8 Concurrent Powers 8 Allocation of Powers to the Federal States (Länder) 9 Allocation of Powers to Local Authorities 10 Allocation of Administrative Power in Germany 11 Allocation of Powers to the Federal Government 11 Allocation of Powers to the Federal States (Länder) 11 Allocation of Powers to Local Authorities 12 Proceedings between the Federal Government the and the Länder 13 The Necessity Clause 14 Constitutional Complaints - Rights of Municipalities 14 Conclusion 15

4 Statement of Purpose ALLOCATION OF POWERS IN GERMANY: CORE ELEMENTS The purpose of this memorandum is to identify the core elements of the federalist structure in Germany and how political, legislative, and administrative powers are allocated among the federal government, the federal states, and local authorities. Introduction The organization of Germany as a federation has firm historical roots. 1 The German Empire, formed in 1871 under the leadership of Otto Von Bismarck, was essentially a federation that continued federal traditions that had been established earlier in German history. 2 After Germany s defeat in the First World War, Germany became a federal democratic republic, known as the Weimar Republic, with a president and a parliament. 3 Only during the period from , when Germany was organized as a centralized and totalitarian state under the leadership of Adolf Hitler, were the principles of federalism not adhered to. 4 Following Germany s defeat in the Second World War, the founders of the Federal Republic of Germany made the conscious decision to return to Germany s federal roots in order to avoid the concentration of power and the potential abuse of such power by one government. The representatives of the federal states played leading roles in the drafting and approval of Germany s Constitution. 5 On October 3, 1990 when the German Democratic Republic and the Federal Republic of Germany reunified, the Constitution remained in force, but was supplemented by the Unification Treaty (Einigungsvertrag) of August 31, The Constitution, as amended and supplemented, is still in effect today. 7 1 Eric Solsten, Federalism, in GERMANY: A COUNTRY STUDY (1995), available at 2 Arthur Benz, Intergovernmental Relations in German Federalism joint decision-making and the dynamics of horizontal cooperation, 2-3, available at 3 WEIMAR REPUBLIC S CONST. (1919), available at 4 Eric Solsten, The Consolidation of Power, in GERMANY: A COUNTRY STUDY (1995), available at 5 Arthur Benz, Intergovernmental Relations in German Federalism joint decision-making and the dynamics of horizontal cooperation, 3, available at 6 Treaty between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity (Aug. 31, 1990), available at 7 The German Constitution was substantially amended in 2006 as a result of the major federalism reform. 1

5 Allocation of Political Power in Germany The German Constitution provides that Germany is a democratic and social federal state. 8 The German Constitution sets out the framework for the allocation of political and fiscal powers between the federal government and the federal states. 9 It also provides that the provisions of the German Constitution affecting the division of Germany into federal states, or Länder, and their participation in the legislative process may not be amended. 10 The Federal Government The legislative branch of the federal government comprises a bicameral, or two-chamber parliament with a federal parliament (Bundestag) comprising at least 598 directly-elected members, 11 and a federal council (Bundesrat) composed of delegates nominated by the state governments of the 16 Länder. 12 The executive branch of the federal government is composed of a federal chancellor (Bundeskanzler) and the federal ministers. 13 Bundestag The Bundestag is the elected representation of the German people. 14 Any German national over the age of 18 may vote in the general elections. 15 Members of the Bundestag are elected directly half from Germany's 299 constituencies, and half from the parties Land lists. 16 In addition, parties may acquire overhang seats in the Bundestag should they win more constituencies than the number of seats allotted to them. 17 For example, if a party is entitled to four seats but wins five constituencies, the sixth seat remains with the party as an overhang seat. Twenty-two members of the current Bundestag hold overhang seats, bringing the 8 GERMAN CONST. art. 20(1) (1949), available at 9 GERMAN CONST. arts (1949). 10 GERMAN CONST. art. 79(3) (1949). 11 GERMAN CONST. art. 38 (1949); Deutscher Bundestag, Election of Members of the German Bundestag, available at 12 GERMAN CONST. art. 51 (1949). 13 GERMAN CONST. art. 62 (1949). 14 GERMAN CONST. art. 38(1) (1949). 15 GERMAN CONST. art. 38(2) (1949). 16 GERMAN CONST. art. 38(1) (1949); Deutscher Bundestag, Election of Members of the German Bundestag, available at 17 Deutscher Bundestag, Election of Members of the German Bundestag, available at 2

6 total number of members to Members of the Bundestag vote to establish expert parliamentary committees composed of members of the Bundestag. 19 Each parliamentary committee is a forum in which Bundestag members are able to concentrate on a single, specialized area of policy. 20 The Bundestag has three main functions. First, it elects the federal chancellor on the proposal of the president. 21 A simple majority of all the members of the Bundestag (not just those present) is required. 22 The second major function of the Bundestag is to adopt legislation. 23 The executive branch of the federal government or the Bundesrat usually proposes legislation, although bills may also be proposed from the floor of the Bundestag. 24 If the executive branch proposes legislation, the federal chancellor must first transmit the draft bill to the Bundesrat for comment. 25 The Bundesrat will have six weeks to provide any commentary, following which the bill is referred to the Bundestag for consideration. 26 Similarly, when the Bundesrat proposes legislation, it must first go to the executive branch for comments before being forwarded to the Bundestag. 27 The Bundestag s relevant expert parliamentary committees then discuss the bills introduced. 28 The committees usually attempt to find a compromise on a particular bill at the committee stage that is capable of commanding majority support in the Bundestag before it is voted on. 29 A simple majority is required to pass most bills other than amendments to the German Constitution, which requires a two-thirds majority Deutscher Bundestag, Election of Members of the German Bundestag, available at 19 GERMAN CONST. art. 45 (1949); Deutscher Bundestag, Permanent Committees, available at 20 GERMAN CONST. art. 45 (1949); Deutscher Bundestag, Permanent Committees, available at 21 GERMAN CONST. art. 63(1) (1949). 22 GERMAN CONST. art. 63(2) (1949). 23 GERMAN CONST. art. 77(1) (1949); Deutscher Bundestag, Passage of Legislation, available at 24 GERMAN CONST. art. 76(1) (1949); Deutscher Bundestag, Passage of Legislation, available at 25 GERMAN CONST. art. 76(2) (1949); Deutscher Bundestag, Passage of Legislation, available at 26 GERMAN CONST. art. 76(2) (1949); Deutscher Bundestag, Passage of Legislation, available at 27 GERMAN CONST. art. 76(3) (1949); Deutscher Bundestag, Passage of Legislation, available at 28 Deutscher Bundestag, Permanent Committees Function and Responsibilities, available at 29 Deutscher Bundestag, Permanent Committees, available at 30 GERMAN CONST. arts. 42(2), 79 (1949). 3

7 Once the Bundestag has adopted a bill, it is submitted to the Bundesrat. 31 If, pursuant to the German Constitution, the consent of the Bundesrat is required, the members of the Bundesrat will vote on the bill and have the right to reject the bill. 32 For example, bills that affect the finances or administrative competencies of the Länder require the approval of the Bundesrat. 33 The Bundesrat may not make amendments to a bill adopted by the Bundestag that does not require its approval. 34 However, if it raises objections to such a bill, it may demand that a Mediation Committee be convened. 35 The Mediation Committee consists of 16 representatives from the Bundesrat (one for each federal state) and an equal number of members of the Bundestag. 36 In the case of bills to which the Bundesrat may lodge an objection, and, where a Mediation Committee has been convened and no consensus is reached, the Bundestag may nevertheless pass the bill. 37 This requires another vote in which the Bundestag must pass the bill by a two-thirds majority. 38 Once a bill has been passed, it requires the signature of the federal chancellor or relevant federal minister, and is then signed into law by the president. 39 The third major function of the Bundestag is to oversee and scrutinize the executive government s work. 40 There are a number of mechanisms by which it may hold the executive to account, including debates and formal questions requiring a response that are publicized weekly. 41 The Bundestag also needs to approve the federal budget GERMAN CONST. art. 77(1) (1949). 32 GERMAN CONST. art. 77(2a) (1949). 33 Bundesrat, Decisions on Consent Bills, available at 34 Deutscher Bundestag, Passage of Legislation, available at 35 GERMAN CONST. art. 77(2) (1949); Deutscher Bundestag, Passage of Legislation, available at 36 Deutscher Bundestag, Mediation Commitee available at 37 GERMAN CONST. art. 77(3) (1949); Deutscher Bundestag, Passage of Legislation, available at 38 GERMAN CONST. art. 77(4) (1949); Deutscher Bundestag, Passage of Legislation, available at 39 GERMAN CONST. art. 82(1) (1949). All laws must be published in the Federal Law Gazette. 40 Deutscher Bundestag, Scrutiny of the Government, available at 41 Deutscher Bundestag, Instruments of Scrutiny, available at 42 GERMAN CONST. arts. 110, 77(1) (1949). 4

8 Bundesrat The second chamber, or Bundesrat, is composed of representatives of the 16 Länder, or federal states. 43 The German electorate does not directly elect the members of the Bundesrat. Rather, they are appointed and may be recalled by their respective federal state, or Land, governments. 44 Länder with more than seven million inhabitants have six seats; 45 Länder with more than six million inhabitants have five seats; 46 Länder with between two million and six million inhabitants have four seats; 47 and Länder with less than 2 million inhabitants have three seats. 48 The system is designed so that the populations of each Land are proportionally represented, though in practice, smaller Länder are afforded greater representation per inhabitant. 49 The presidency of the Bundesrat rotates annually among the states. 50 The main role of the Bundesrat is legislative. As noted above, the Bundesrat may introduce legislation, is involved in the review of proposed bills, and also has approval rights over legislation that amends the constitution, affects the Länder s budgetary revenue, or affects the administrative jurisdiction of the Länder. 51 At present, almost 50 percent of all laws passed require the approval of the Bundesrat. 52 This is because most federal laws are enforced by administrative bodies at the Land level, and therefore affect the administrative sovereignty of the Länder. 53 Federal Chancellor The federal chancellor determines the guidelines and is responsible for the general policy of the German government. 54 The federal chancellor also nominates each of the federal ministers who are then appointed by the federal president GERMAN CONST. art. 51(1) (1949). 44 GERMAN CONST. art. 51(1) (1949). 45 GERMAN CONST. art. 51(2-3) (1949). 46 GERMAN CONST. art. 51(2-3) (1949). 47 GERMAN CONST. art. 51(2-3) (1949). 48 GERMAN CONST. art. 51(2-3) (1949). 49 Gregor Gosciniak and Andrew Stevens, Local government in Germany shaped by regional differences (Sept. 12, 2006), available at 50 Bundesrat, The Presidency, available at nnn=true. 51 Bundesrat, Responsibilities, available at nnn=true; Bundesrat, Decisions on Consent Bills, available at 52 Bundesrat, Decisions on Consent Bills, available at 53 Facts about Germany, Political System, available at 54 GERMAN CONST. art. 65 (1949). 5

9 President In addition to the federal chancellor, who for all intents and purposes leads the federal government, the German Constitution provides for the office of the federal president. The powers of the federal president are very limited. The federal president signs bills into laws, formally represents Germany for purposes of concluding international treaties, appoints civil servants and judges, and has the power to issue pardons. 56 The Federal States (Länder) The governments of each federal state, or Land, are determined in accordance with the constitution of such Land. 57 Each such constitution must conform to the principles of a republican, democratic, and social state governed by the rule of law, within the meaning of the German Constitution. 58 Each of the Länder holds general elections in accordance with their respective state constitutions in which the members of the parliament of each Land are elected, who then elect the government of such Land. 59 As mentioned above, the number of votes a Land has in the Bundesrat depends on the size of the population of such Land. 60 Local Authorities Districts, towns, and municipalities represent the lowest level in the federal state and administrative structure. The German Constitution requires districts and municipalities to have a parliament composed of elected officials in free and direct general elections. 61 It also guarantees the rights of municipalities to govern their own affairs, including financial matters, and allows them the ability to raise some of their own revenues. 62 The guarantee of local autonomy prohibits federal government and Land legislation from removing the rights of the local authorities to manage their own 55 GERMAN CONST. art. 64 (1949). 56 GERMAN CONST. arts. 59, 60, 82(1) (1949). 57 GERMAN CONST. art. 28(1) (1949). 58 GERMAN CONST. art. 28(1) (1949). 59 Gregor Gosciniak and Andrew Stevens, Local government in Germany shaped by regional differences (Sept. 12, 2006), available at 60 GERMAN CONST. art. 51(2) (1949). 61 GERMAN CONST. art. 28(1) (1949). 62 GERMAN CONST. art. 28(2) (1949). 6

10 affairs, or from restricting this right to such an extent that the substance of the autonomy is taken away from within. 63 However, municipalities can be dissolved by means of an act of the federal government, and the federal government can reassign certain responsibilities away from municipalities on the grounds of public well-being. 64 Since 2011, 63 municipalities have been dissolved in Germany. 65 Allocation of Legislative Power in Germany The German Constitution provides for an elaborate system of the division of powers between the federal government and the federal states, or Länder. The German Constitution distinguishes between legislative powers that are exclusive to the federal government, and concurrent legislative powers that are shared between the federal government and the Länder. On matters that are within the exclusive legislative power of the federal government, the Länder have the power to legislate only to the extent expressly authorized by federal law. 66 With respect to matters that are subject to concurrent legislative powers, the Länder have the power to legislate to the extent the federal government has not exercised its legislative powers. 67 In addition, the Länder can legislate on all other matters not reserved for the federal government. 68 If there is a conflict between the laws of a Land and a federal law, federal law supersedes Land law. 69 The German Constitution also provides that the federal government can, with the consent of the Bundesrat, compel the Länder to comply with the German Constitution and other federal laws. 70 In practice, however, the federal government has not exercised this power. 71 Critics suggest that the lack of enforcement is not because the Länder are always in compliance, but because the federal government lacks the necessary monitoring and 63 Dieter Haschke, Local Administration in Germany, available at 64 Dieter Haschke, Local Administration in Germany, available at 65 GfK GeoMarketing GmbH, GfK Releases 2013 Digital Map Editions for Germany, Austria and Switzerland (Mar. 26, 2013), available at 66 GERMAN CONST. art. 71 (1949). 67 GERMAN CONST. art. 72 (1949). 68 GERMAN CONST. art. 70 (1949). 69 GERMAN CONST. art. 31 (1949). 70 GERMAN CONST. art. 37(1) (1949). 71 R. Daniel Kelemen, INSTITUTIONS AND REGULATORY POLITICS IN THE EU AND BEYOND 95 (2004) available at %22+basic+law+germany&source=bl&ots=oZazE6- Yhp&sig=sxB5_0_RBKcy3hUI1kH5N6LVQBU&hl=en&sa=X&ei=PPDvUfTvKMiWqQHploDgCQ&ved=0CEIQ6 AEwBw#v=onepage&q&f=false. 7

11 enforcement capabilities. 72 The German federal government is also authorized to issue instructions to the Länder and their representatives to implement such measures. 73 Allocation of Powers to the Federal Government The German Constitution sets out the areas in which the federal government has exclusive legislative powers. 74 These include, amongst other things, all foreign policy issues; defense, including the protection of the civil population; citizenship; currency and money; customs and trading; intellectual property rights; post and telecommunications; air travel and rail; and cooperation between the federal government and the Länder concerning criminal police work. 75 Where the federal government has exclusive legislative competence, the Länder only have the power to legislate to the extent they are expressly empowered to do so by a federal act. 76 Concurrent Powers The German Constitution also sets forth an extensive list of concurrent powers. 77 These include, among others, civil law; criminal law; court organization; commercial law; labor law; public welfare law; state expropriations; land distributions; road maintenance; traffic and highway construction; water management; and waste disposal. 78 On matters within the concurrent legislative power, the Länder have power to legislate so long as, and to the extent that, the federal government has not exercised its legislative power by enacting a law. 79 The federal government has exercised its right to legislate extensively in relation to most aspects of the concurrent powers set forth in the German Constitution. 80 In addition, the federal government is authorized to legislate in respect of numerous concurrent powers to the extent that the establishment of equivalent living conditions throughout the federal territory or the maintenance of 72 R. Daniel Kelemen, INSTITUTIONS AND REGULATORY POLITICS IN THE EU AND BEYOND 95 (2004) 73 GERMAN CONST. art. 37(2) (1949). 74 GERMAN CONST. arts. 72(2), 73 (1949). 75 GERMAN CONST. art. 73 (1949). 76 GERMAN CONST. art. 71 (1949). 77 GERMAN CONST. art. 74 (1949). 78 GERMAN CONST. art. 74 (1949). 79 GERMAN CONST. art. 72(1) (1949). 80 Friedrich Ebert Stiftung, The Distribution of Legislative Powers, available at 8

12 legal or economic unity renders federal regulation necessary in the national interest. 81 Necessity is generally implied in the areas of civil law, criminal law, labor law, and land law, meaning that the federal government may enact binding legislation in these areas without actually demonstrating that it is necessary to do so. 82 However, there are certain areas, including hunting; the protection of nature and landscape management; land distribution; regional planning; management of water resources (except for regulations related to materials and facilities); and admission to institutions of higher education, in which the Länder may regulate at variance with federal legislation. 83 Federal laws on these matters enter into force six months following their promulgation unless otherwise provided with the consent of the Bundesrat. 84 Allocation of Powers to the Federal States (Länder) The German Constitution provides that the Länder shall have the right to legislate insofar as this Basic Law does not confer legislative power on the Federation. 85 To the extent the Länder have the legislative power to pass their own laws, the German Constitution imposes only limited restrictions in respect of such laws. It requires that the constitutional order of the Länder must conform to the basic principles set forth in the German Constitution, which provides that Germany is a republican, democratic, and social state governed by the rule of law. 86 In general, the Länder are responsible for areas such as law enforcement, regulation of radio and television, cultural issues, and education (especially at the primary and secondary levels). 87 In an effort to harmonize education policies among the Länder, government officials responsible for education in each of the 16 Länder meet three to four times a year at the Standing Conference of Ministers of 81 GERMAN CONST. art. 72(2) (1949). 82 Gerald Spindler and Oliver Rieckers, TORT LAW IN GERMANY, 20 (2011), available at aw+in+germany&source=bl&ots=e3rhzorhqn&sig=f73ruvjnkokh7j1cqb0vyfib6us&hl=en&sa=x&ei=fo H2UcagMebD4AOt8IBg&ved=0CGEQ6AEwCQ#v=onepage&q=is%20civil%20law%20federal%20and%20land% 20law%20in%20germany&f=false. 83 GERMAN CONST. 72(3) (1949). 84 GERMAN CONST. art. 72(3) (1949). 85 GERMAN CONST. art. 70 (1949). 86 GERMAN CONST. art. 28 (1949). 87 Megdalena Suszycka-Jasch and Hans-Christian Jasch, The Participation of the German Länder in Formulating German EU-policy, 10 GERMAN LAW JOURNAL 1215, 1223 (2009), available at 9

13 Education and Cultural Affairs of the Länder. 88 In 2002, the Standing Conference adopted a resolution to introduce binding educational standards for all Länder. 89 Such standards were adopted in 2003 and 2004 for intermediate and secondary school. 90 In 2012, standard entrance qualifications for higher education were adopted for German, Math, English, and French. 91 Standard entrance qualifications for biology, chemistry, and physics are to be developed in The Standing Committee has also adopted a comprehensive strategy for educational monitoring, as well as standards for teacher training. 93 While the federal government conducts relations with foreign states, if a treaty will affect the special circumstances of a Land, the Land must be consulted before the treaty s conclusion. 94 The Länder also have the ability to conclude treaties with foreign states, albeit with the consent of the federal government. 95 However, the Länder may conclude partnership agreements, declarations of intent, and protocols without the consent of the federal government. 96 The Länder may also conclude inter-länder agreements without the consent of the federal government. 97 Allocation of Powers to Local Authorities According to Federal and Land law, municipalities have the authority to pass municipality bylaws and are responsible for areas such as the provision of water, electricity, district heating, and gas; wastewater services and waste removal; land 88 Kultusminister Konferenz, Standing Committee of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany - Functions, available at 89 OHCHR, Education Questionnaire Germany, 1, available at 90 OHCHR, Education Questionnaire Germany, 1, available at 91 Secretariat of the Standing Conference of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany, The Education System in the Federal Republic of Germany 2011/2012, 228 (2013), available at 92 Secretariat of the Standing Conference of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany, The Education System in the Federal Republic of Germany 2011/2012, 228 (2013), available at 93 OHCHR, Education Questionnaire Germany, 1, available at 94 GERMAN CONST. art. 32(2) (1949). 95 GERMANY CONST. art. 32(3) (1949). 96 Klaus Otto Nass, The Foreign and European Policy of the German Lander, 19 OXFORD JOURNALS 165, 169 (1989). 97 Martin A. Rogoff, The European Union, Germany, and the Lander: New Patterns of Political Relations in Europe, 5 COLUM. J. EUR. L. 415, 420 (1998). 10

14 use and building planning; the construction and maintenance of local roads, green areas, parks, and cemeteries; the construction and operation of sports and social facilities; cultural and educational work, including the construction, maintenance, or promotion of private cultural and educational facilities; the construction and operation of hospitals and old people s homes; local public transport; the construction and maintenance of schools; matters concerning the fire brigade; and local authority economic promotion. 98 Under the principle of subsidiarity, a district many only assume responsibility if a task exceeds the capacity of the municipality. 99 Allocation of Administrative Power in Germany Whereas the federal government has extensively used its legislative powers, the administration of federal laws has largely been delegated to the Länder. Allocation of Powers to the Federal Government The Länder execute the majority of laws in Germany, either in their own right as states, or as agents of the federal government. 100 There are, however, several areas set out in the German Constitution for which the federal government retains administrative responsibility. These include, amongst others, defense; air and rail transportation; highways; waterways; postal and telecommunications; foreign service; federal border police; and social insurance. 101 Allocation of Powers to the Federal States (Länder) The administrative role of the Länder is set out in the German Constitution, which confers upon the Länder both the right, and the duty, to execute federal laws to the extent the German Constitution does not expressly provide otherwise. 102 The German Constitution distinguishes between administrative functions to be performed by the Länder in their own right, and matters in which the Länder execute federal laws as agents for the federal government Dieter Haschke, Local Administration in Germany, available at 99 Dieter Haschke, Local Administration in Germany, available at GERMAN CONST. arts. 83, 84(1), 85(1) (1949). 101 GERMAN CONST. arts (1949). 102 GERMAN CONST. art. 83 (1949). 103 GERMAN CONST. arts. 83, 84(1), 85(1) (1949). 11

15 In administering laws, the Länder are authorized to establish the requisite authorities to execute the laws, and to regulate administrative procedures. 104 For laws that the Länder execute in their own right, the federal government may only issue general administrative rules with the approval of the Bundesrat. 105 Exceptionally, where the uniform application of laws is required in the whole of Germany, the federal government may also regulate the administrative procedure. This also requires the approval of the Bundesrat. 106 Matters which the Länder execute as agents of the federal government are subject to more detailed instructions from the relevant federal authorities, and to federal supervision with regard to the appropriateness of execution. 107 The federal government is also authorized to oversee the Länder s execution of federal laws. 108 If a Land fails to comply with its obligations under the German Constitution or other federal laws, the federal government, with the consent of the Bundesrat, may take the necessary steps to compel the Land to comply with its duties. 109 Allocation of Powers to Local Authorities The federal government and/or the Länder have transferred the following administrative areas to the municipalities by virtue of law: publishing banns; performing marriage ceremonies; issuing birth and death certificates; general security; nationality, registration, and passport affairs; registrar s office and civil status; commercial affairs; construction matters; health care and veterinary affairs; road traffic; registration of vehicles and vehicle taxation; water legislation and land cultivation; the implementation of federal and Land parliamentary elections; social affairs and youth care; protection and maintenance of historical monuments; statistics; and forestry and fisheries. 110 The Länder oversee municipal administration and are entitled to issue instructions under certain conditions GERMAN CONST. art. 84(1) (1949). 105 GERMAN CONST. art. 84(2) (1949). 106 GERMAN CONST. art. 84(1) (1949). 107 GERMAN CONST. art. 85 (1949). 108 GERMAN CONST. art. 84(3) (1949). 109 GERMAN CONST. art. 37 (1949). 110 Dieter Haschke, Local Administration in Germany, available at Dieter Haschke, Local Administration in Germany, available at 12

16 Proceedings between the Federal Government and the Länder The German Constitution sets forth the framework for disputes between the federal government and the Länder regarding the allocation of legislative or administrative powers. 112 The Federal Constitutional Court, Germany s highest court, has jurisdiction over such disputes. 113 Potential parties (applicant and respondent) to the proceedings are the federal government and the governments of the Länder. 114 Matters that are the subject of such disputes are any material acts or omissions by the respondent, including in connection with the execution of federal laws by the Länder and the federal supervision over the execution of federal laws by the Länder. 115 One example of a material omission is a Land s non-compliance with an order issued by the federal government. 116 It is the applicant s duty to establish that the respondent has violated the applicant s constitutional rights or not complied with the respondents constitutional obligations. 117 The federal government could, for example, claim that a Land, by failing to comply with an order issued by the federal government, violated the federal government s competence to make decisions and its authority to issue directives. 118 In a dispute concerning the limitation of operations of nuclear power plants in Germany, the Government of the Land of Hesse claimed that the negotiations between the Federal Environment Ministry and the operators of nuclear power plants impaired the Land s executive authority pursuant to Article 85 of the German Constitution The dispute proceedings between the federal government and the Länder are governed by Article 93(1)(3-4) of the German Constitution and the related procedural rules set forth in the Law on the Federal Constitutional Court. 113 GERMAN CONST. art. 93 (1949). 114 Law on the Federal Constitutional Court, art. 68 (Germany, 1951), available at GERMAN CONST. art. 93(1)(3) (1949). 116 OECD, Compliance, Enforcement, Appeals, in BETTER REGULATION IN EUROPE: GERMANY 129, 132 (2010), available at Law on the Federal Constitutional Court, art. 64(1-2) (Germany, 1951), available at GERMAN CONST. art. 85(3) (1949). 119 Christina Gille, The Kernkraftwerk Biblis A Decision of the Federal Constitutional Court: The Division of Administrative Powers Between the German Federation and the Länder, German Law Journal, available at 13

17 "Necessity" Complaint At the request of the Bundesrat, a government of a Land, or the parliamentary assembly of a Land, the Federal Constitutional Court is authorized to determine whether the need for regulation by federal law in respect of a specific matter no longer exists, 120 or whether federal law should no longer be enacted in relation to a particular area. 121 For instance, in the 2004 Shop Closing Act Case, the Constitutional Court was asked to determine whether the federal government had the authority to modify legislation relating to business closing hour requirements. 122 The Constitutional Court determined that, while the federal government has concurrent legislative powers over certain economic areas, that authority no longer includes the authority to regulate business closing hours, which is now regulated by the Land. 123 The Federal Constitutional Court s determination that the need for federal regulation no longer exists substitutes a federal law. Constitutional Complaints Rights of Municipalities The German Constitution also provides judicial review for measures affecting a municipality s right to self-government. Municipalities or associations of municipalities are entitled to submit a complaint to the Federal Constitutional Court based on the potential infringement of such right. 124 The procedure governing such claims is similar to the procedure governing claims by individual citizens in the case of violation of their basic rights under the German Constitution. However, if such a complaint is directed against a Land s statute, the complaint is only admissible if remedies to challenge such statute have not been provided at the state level. For instance, in the 1982 Hoheneggelsen Case, Lower Saxony passed a law that consolidated many communities into one municipality. 125 The Land parliament passed a law naming the municipality Söhlde, which was the largest 120 GERMAN CONST. art. 72(4) (1949). 121 GERMAN CONST. art. 93(2) (1949). 122 Donald P. Commers and Russell A. Miller, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY; THIRD EDITION 137 (2012), available at ded+by+land+law&source=bl&ots=4mofviayk&sig=lt6vvzaxwdlyovz7wps0yb7taoq&hl=en&sa=x&ei=fvrvuaeyj5p54aoysycqcq&ved=0cfcq6 AEwBw#v=onepage&q&f=false. 123 Donald P. Commers and Russell A. Miller, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY; THIRD EDITION 137 (2012). 124 GERMAN CONST. art. 93(1)(4)(b) (1949). 125 Donald P. Commers and Russell A. Miller, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY; THIRD EDITION 106 (2012). 14

18 city in the new municipality. 126 In 1976, a new political party came into power, and the Land parliament passed a new law that renamed Söhlde to Hoheneggelsen. 127 In response, the city of Söhlde filed a constitutional complaint against the Land, and claimed that the law interfered with the right of local self-government; the Constitutional Court ruled in favor of Söhlde.128 Conclusion Germany is a federal democratic republic with a strong federalist tradition. Political, legislative, and administrative powers are allocated between the federal government and the 16 federal states, or Länder. The Federal Constitutional Court adjudicates disputes between the federal government and the federal states in relation to the allocation of powers and any constitutional questions. 126 Donald P. Commers and Russell A. Miller, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY; THIRD EDITION 106 (2012). 127 Donald P. Commers and Russell A. Miller, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY; THIRD EDITION 106 (2012). 128 Donald P. Commers and Russell A. Miller, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY; THIRD EDITION 106 (2012). 15