Authorization to Issue Legal Provisions
The authorization to issue legal provisions is an essential concept in constitutional and administrative law. It governs under which conditions executive bodies or other authorized entities may independently issue legal provisions, in particular ordinances or statutes. The basis of this authorization is the principle of separation of powers, especially the reservation and precedence principles of the law.
General Meaning
The authorization to issue legal provisions is necessary because only the legislator (in Germany, usually the Bundestag or state parliaments) has the right to establish general, binding norms—that is, laws. To relieve the legislative process and enable flexible regulations, the legislator can transfer certain regulatory powers to other bodies. This transfer takes place through a statutory authorization basis.
Legal Foundations
Constitutional Foundations
The constitution explicitly stipulates in Art. 80 of the Basic Law that the Federal Government, a Federal Minister, or the state governments may only issue ordinances if they have been authorized by law to do so. The authorization must determine the content, purpose, and scope of the conferred power (principle of certainty).
Statutory Foundations
Ordinary laws sometimes contain explicit authorizations for certain authorities or institutions to issue legal provisions. Examples include the Road Traffic Regulations (StVO), which were issued based on an ordinance authorization in the Road Traffic Act (StVG).
Types of Authorization
General Ordinance Authorization
This includes the classic authorizations by the federal legislator to executive bodies to issue ordinances on specific topics (e.g., occupational safety, environmental law, public security).
Individualized Authorization
In certain cases, authorizations apply to limited circumstances or individual legal subjects (for example, infection protection measures by public health offices under the Infection Protection Act).
Municipal Authorization to Issue Statutes
Municipal corporations are empowered by state laws to enact legal norms in the form of statutes. Typical examples are zoning plans or fee schedules.
Requirements for an Effective Authorization
Reservation of Law and Principle of Certainty
As a rule, the principle applies that no action may be taken without a legal basis, especially when fundamental rights are affected. Therefore, the authorization must clearly specify the scope, subject matter, and purpose of the possible regulations. Furthermore, the authorization must not be too vague (prohibition of “blanket ordinance”) nor encroach upon core areas of legislation.
Precedence of the Law
Legal provisions issued on the basis of an authorization may not violate higher-ranking law, especially not the Basic Law or other statutes.
Limitation of Authorization: Delegation and Subdelegation
The delegated power to regulate may generally not be further transferred (“Delegata potestas non potest delegari”). Subdelegation is only permissible if it is explicitly provided for by law and the legislator itself sets the necessary parameters.
Form and Publication of Issued Legal Provisions
Certain formal requirements apply to the issuance of legal provisions based on an authorization. Ordinances must clearly indicate which authorization norm they are based on. Furthermore, promulgation of the adopted regulations is mandatory, often in the Federal Law Gazette or the relevant official gazette.
Review of Authorizations and Ordinances
Judicial Review
Norms covered by the authorization are, like statutes, subject to judicial review. The main criterion of review is their compatibility with the statutory authorization and with higher-ranking law.
Parliamentary Reservation and Requirements for Approval
In sensitive regulatory areas, the Basic Law may require that the Bundestag or the Bundesrat must expressly approve before a corresponding ordinance can enter into force (e.g., Art. 80 paragraphs 2 and 3 GG).
Practical Examples
- Infection Protection Act (IfSG): Authorizes the Federal Ministry of Health to issue regulations by ordinance in the event of an epidemic situation of national significance.
- Price Maintenance Law: Authorizes the Federal Ministry for Economic Affairs and Climate Action to issue price ordinances.
- Municipal Tax Acts: State law authorization for municipalities to issue statutes on fees and charges.
Limits of an Authorization to Issue Legal Provisions
The legislator may not relinquish an indefinite regulatory scope; essential matters (“essentiality doctrine”) must be regulated in the law itself. Delegation to the executive must not result in the parliament relinquishing its responsibility in matters affecting fundamental rights. The constitutional bodies, especially the Federal Constitutional Court, have developed extensive guidelines for this.
Summary
The authorization to issue legal provisions is a central steering instrument in the German rule of law. It is intended to enable effective ordinance and statute issuance, but always under the control of the parliament. Strict requirements regarding the content, purpose, and scope of authorization safeguard the legislator’s original responsibility for shaping the law and ensure effective protection of fundamental rights.
Keywords: Authorization basis, ordinance, statute, federal law, administration, legislation, constitution, reservation of law, delegation, executive
Frequently Asked Questions
What are the legal foundations for authorization to issue legal provisions?
The authorization to issue legal provisions is primarily based on the Basic Law (GG), which, under the reservation of law, requires an explicit legal authorization for the ordinance issuer. In particular, Art. 80 GG governs the conditions under which the Federal Government, a Federal Minister, or the state governments may be authorized by law to issue ordinances. These authorization laws must define the content, purpose, and scope of the conferred power precisely. In addition, the respective state constitutions contain corresponding provisions for the states. The essentiality doctrine further requires that all fundamentally important decisions must be made by the legislator itself; this limits the transferability of legislative competence to the executive.
Who may issue legal provisions based on a statutory authorization?
At federal level, the Federal Government, individual Federal Ministers, or other federal authorities are generally authorized to issue ordinances, provided there is an explicit statutory authorization. At state level, these are the respective state governments and the authorities stipulated in state laws. The assignment of this legislative power always takes place through a formal law that clearly names the relevant authority. A mere general reference to the administration is not sufficient; instead, a concrete determination is necessary. In addition, municipalities and municipal associations can also issue statutes as legal provisions based on state law if they have been granted the appropriate authorization.
What are the limits of an authorization to issue legal provisions?
The limits arise primarily from the principle of the reservation of law and the principle of certainty, as specifically formulated in Art. 80 GG. The authorization must clearly and precisely outline the content, purpose, and scope of the conferred power; a blanket authorization without substantive requirements is unconstitutional. It is also essential to ensure that there is no inadmissible delegation of essential legislative decisions. If the essentiality principle is exceeded, the authorization may be unconstitutional. In addition, fundamental rights must be respected—ordinances may not violate fundamental rights and are subject to judicial review.
How is the issuance of legal provisions by authorization controlled?
Supervision of authorized rulemaking takes place on several levels: First, the superior law may be reviewed by the Federal Constitutional Court for formal and substantive aspects. Ordinances and statutes are reviewed, under judicial control, for their compatibility with the statutory authorization and its limits (§ 47 VwGO, § 93 BVerfGG). Such judicial review also includes assessing whether the principle of certainty is observed, whether the authorization is exceeded or not, as well as compliance with fundamental constitutional principles and rights. The Bundestag also has approval or objection rights regarding ordinances, depending on the procedure.
What formal requirements apply to the issuance of ordinances and statutes?
For ordinances, written form and execution in accordance with Art. 82 GG must be observed. Promulgation usually takes place in the Federal Law Gazette or a corresponding state law gazette, whereby the effective date must be specified separately. Certain ordinances also require the consent of the Bundestag or Bundesrat. For municipal statutes, the requirements of the relevant state laws apply, regularly governing form, content, procedure, and publication. Here, too, the authorization must be clearly named and reference made to its legal basis.
What happens if a legal provision is issued without sufficient statutory authorization?
An ordinance or statute issued without sufficient statutory authorization or in breach of the legal framework is unlawful and void. Invalidity may be established upon application through administrative judicial review (§ 47 VwGO for state law, § 93 BVerfGG for federal law) or incidentally in an administrative procedure. If the authorization basis itself is unconstitutional, this usually also affects the ordinances based on it.
What role does the essentiality principle play in authorization for legislation?
The essentiality principle is a constitutional guideline, according to which, in all fundamentally important areas, the essential decisions must be made by the parliamentary legislator itself. In particular, it protects fundamental rights and democratic principles from excessive delegation to the executive. In practice, this means the legislator must examine, with each authorization, which regulations are considered “essential” and therefore not transferable. Typical examples are interventions in fundamental rights, regulations on taxes, or the imposition of vaccination requirements, which always require a sufficiently defined legal basis.
