Concept and Legal Basis of the Autonomous Statute
Die Autonomous Statute refers, in German and European law, to a legal norm enacted by a non-state body endowed with its own decision-making authority, such as a public law corporation or a comparable institution, to autonomously regulate its internal affairs. Autonomous statutes, as sources of law, rank below statutes and regulations in the hierarchy of norms, but they are distinguished from purely internal regulations such as rules of procedure because they have binding character for the respective members and may, in some cases, have external effects.
The foundation for statutory autonomy is usually a legal authorization that grants certain institutions—such as municipalities, universities, chambers, or public-law associations—the competence to enact regulations autonomously by statute. Autonomous statutes play a particularly important role in corporate, administrative, and municipal law.
Legal Nature and Delimitation of the Autonomous Statute
Legal Nature
Autonomous statutes are legal norms as they contain abstract-general rules for an indefinite number of cases and persons. They are not administrative acts or private law contracts, but operate in the sphere of public law. Their defining feature is the exercise of self-administration through their own decision-making structures within certain, legally defined limits.
Distinction from Other Sources of Law
Autonomous statutes must be strictly distinguished from laws and legal ordinances. They are based on statutory authorization but are not enacted by the legislature or the executive in its original function, rather by the relevant self-governing corporation. Internal service instructions or rules of procedure also do not count as autonomous statutes, as they lack legal binding effect towards third parties.
Examples of Autonomous Statutes
Autonomous statutes can be found in the following institutions:
- Municipalities and municipal associations (e.g., municipal contribution, fee, or usage statutes)
- Public law chambers (e.g., professional codes, contribution statutes)
- Universities and higher education institutions (e.g., examination and study regulations)
- Religious communities with corporate status
Admissibility and Requirements for Enactment
Statutory Basis of Authority
The essential feature of an autonomous statute is statutory authorization. Enactment without a statutory basis is inadmissible because statutory autonomy is subject to the reservation of law under Article 20(3) of the Basic Law. This means that the scope, requirements, and procedure for enacting statutes must each be precisely regulated by law.
Substantive Limitations
The legislature may define the content and scope of statutory autonomy to varying degrees. However, statutory authority may not result in the violation of fundamental rights or the circumvention of essential legal principles. In particular, autonomous statutes are subject to review under the standards of higher-ranking laws (statutes, ordinances, constitutional law).
Procedure
A typical requirement for the enactment of autonomous statutes is the following:
- Resolution by a competent body (e.g., municipal council, chamber assembly, senate of a university)
- Publication in a legally prescribed medium (e.g., official newsletter)
- In some cases, involvement of supervisory authorities for legal oversight
Legal Effects and Scope of Application
Binding Effect
Autonomous statutes have binding effect on the members or affiliates of the body enacting the statute and, in some instances, on external third parties, provided this is established by law. For example, residents of a municipality are subject to the municipal statute, such as a dog tax statute.
External Effect
In addition to their effect within the body, statutes can also have external effect, for instance, usage statutes for public facilities or contribution statutes for the use of municipal services.
Means of Control
Autonomous statutes are subject to judicial review to the extent that they are bound by higher-ranking law. In a judicial review procedure (§ 47 VwGO), the validity of certain statutes can be examined by a court. Legal violations result in the partial or complete invalidity of the statute.
Significance and Function of Autonomous Statutes
Expression of Self-Government
Autonomous statutes are an expression of the principle of self-government, as set forth in Article 28(2) of the Basic Law. They are the instrument by which public law corporations can adopt their own regulations for specific matters within a legally defined framework.
Flexibility and Addressee Reference
Autonomous statutes enable corporations to enact specific regulations tailored to local, professional, or organizational circumstances. In contrast to general laws, such norms are specifically adapted to the respective needs and organizational structures.
Limits and Control of Autonomous Statutes
Binding to Higher-Ranking Law
Compliance with the constitution, statutes, and legal ordinances is the central limiting element for the power to enact statutes. Every statutory intervention must remain within the scope of the conferred competence and must not have disproportionately burdensome or discriminatory effects.
Supervision and Judicial Review
In addition to self-regulation, corporations are subject to legal supervision by state authorities. Furthermore, specific legal proceedings—such as abstract judicial review—are provided to ensure the validity and constitutionality of autonomous statutes and to guarantee the rule of law.
Special Types and Application Examples
Municipal Statutes
In municipal law, autonomous statutes are used particularly frequently, for example to regulate fees, contributions, rules of usage for public facilities, development plans, or electoral regulations for local representative bodies.
University and Chamber Law
In university law, autonomous statutes are used for study, examination, and enrollment regulations. In the field of professional organizations, for example, professional rules or contribution regulations are governed by statutory autonomy.
Religious Corporations
Recognized religious communities with corporate status may also enact autonomous statutes for their affairs, for example regarding membership, organization, or contribution regulation.
Literature and Legal Sources
Statutory Foundations
- Article 28(2) Basic Law (self-government)
- Municipal laws of the federal states (e.g., § 24 GO NRW, § 4 GO Bavaria)
- Administrative Procedure Act (VwVfG)
- University laws of the federal states
- Chamber laws and statutory regulations for professional organizations
Further Reading
It is advisable to consult relevant commentaries on municipal law, the Administrative Procedure Act, as well as on statutory powers and review in German law.
Summary: The autonomous statute is a central instrument for the self-organization of public law corporations. Within the legal framework, it allows the adoption of self-responsible regulations, subject to legal constraints and judicial review. In this way, it ensures the balance between autonomy and rule-of-law oversight in the German legal system.
Frequently Asked Questions
Who is authorized to enact an autonomous statute?
The right to enact an autonomous statute generally lies with legal entities under public law, in particular with municipalities, counties, and other municipal corporations. The authorization arises from the respective municipal constitutions and special statutory provisions, for example, the Basic Law (Art. 28(2) GG) and state municipal codes. The organs of municipal self-government, usually the municipal or city council, are empowered to do so by appropriate resolution. The statute must be enacted within the competences established by law and under the so-called ‘statutory autonomy.’ It cannot be drafted by individuals or private associations and is subject to procedures such as resolution, public notice, and, where applicable, approval or notification process, depending on the relevant state legislation.
Is an autonomous statute subject to legal control?
An autonomous statute is subject to multi-level legal control. Primarily, there is the possibility of municipal supervision by the competent supervisory authority of the respective federal state, both regarding the legality and the expediency of particular regulations. Furthermore, an autonomous statute can be reviewed by a court; affected citizens and other legal holders can initiate judicial review pursuant to § 47 VwGO to have the lawfulness of the statute examined. The control relates especially to the formal legality (competence, procedure, publication) and the substantive legality (content compatibility with higher-ranking law).
How does an autonomous statute relate to higher-ranking law?
Autonomous statutes are positioned in a hierarchy below primary statutory law. They must not contradict higher-ranking law—be it federal laws, state laws, or European regulations. Statutory autonomy is always limited by the principle of legality in administration and the primacy and reservation principles of statutory norms. In case of a conflict of norms, the autonomous statute is invalid, or at least inapplicable to the extent that it violates higher-ranking law. In the practical process of enacting statutes, a legal review is regularly conducted to prevent conflicts of norms.
Do autonomous statutes have to be published?
The legal effectiveness of an autonomous statute generally requires its proper publication. The exact form of publication is regulated in the municipal constitutions or corresponding publication statutes. Usually, publication takes place in the official gazette of the municipality or county, either electronically or in written form. Only upon public notice does the statute enter into force and take legal effect. If proper publication is lacking or is carried out incorrectly, the statute is void.
What legal limits apply to the content of autonomous statutes?
The content of autonomous statutes is limited by the principle of statutory authorization and the prohibition of exceeding statutory competence. The authority to regulate must be based on an express statutory provision. The content may relate only to matters that fall within the competence of the respective corporation. Furthermore, fundamental rights, the principle of proportionality, the prohibition of discrimination (§ 3 GG), and the principle of legal certainty must be observed. The statute must also be consistent with existing laws and may not include provisions that are already conclusively covered by higher-ranking norms.
Can autonomous statutes contain retroactive provisions?
In principle, retroactivity of autonomous statutes is permissible only in very limited circumstances. One distinguishes between true and false retroactivity. True retroactivity—that is, retroactive changes to situations already concluded—is generally inadmissible because the principle of legal certainty and protection of legitimate expectations precludes this. False retroactivity, in which legal consequences are attached to a situation that began in the past but is not yet concluded, may be exceptionally permitted if no worthy legitimate expectations are affected and the regulation is sufficiently justified. In any event, retroactivity must be expressly stated and particularly justified in the statute text.
How can an autonomous statute be amended or repealed?
An amendment or repeal of an autonomous statute follows the same legal and procedural requirements as its initial enactment. In particular, this means that amendments and repeals also require a suitable resolution by the competent body, possibly a hearing or public participation, and the amendments must be properly published. The effectiveness of the amendment or repeal only takes effect upon its publication, unless a later date is expressly specified. Transition provisions must furthermore be observed to avoid legal uncertainty for existing cases.
