Definition and concept of a blanket law
Ein Blanket Law is a type of law that, in the legal system, predominantly consists of an incomplete, undefined regulation, the concrete design or supplementation of which is carried out by subordinate legal norms, mostly ordinances or administrative regulations. The characteristic of the blanket law is that it provides a formal empowerment or framework and deliberately leaves open the provisions regarding the details. The term is derived from the Latin ‘blanco’ and French ‘blanc’, indicating that the law is ‘blank’ or ‘unwritten’ and is only fully completed through further regulations.
Systematic classification in law
Position in the legislative process
Blanket laws are part of legislative technique and are enacted within the framework of the regular legislative procedure according to constitutional requirements. They are often directed at the executive, especially ministries or other administrative bodies, empowering them to issue more detailed implementing provisions through legal ordinances or administrative regulations.
Relationship to framework laws
In contrast to the framework law, which establishes substantive minimum requirements or basic structures and allows only limited room for maneuver for further elaboration, the blanket law is characterized by a particularly broad latitude for completion by subordinate legal acts. While framework laws are often used to safeguard federal structures and partially set out substantive legislation (e.g., previously in education law), blanket laws are typically technical in nature.
Structure and composition of blanket laws
Key characteristics
The following are characteristic features of blanket laws:
- Lack of, or minimal, substantive regulation: Central aspects of the subject matter are not specified in the law itself but are expressly deferred for subsequent specification.
- Empowering provision: A core element is the empowerment of the administration to establish detailed provisions by means of a sub-statutory legal act.
- Dynamic reference: It often refers to existing or yet-to-be-enacted provisions.
Drafting techniques
Blanket laws regularly use formulations such as:
“Further details shall be regulated by the Federal Government through an ordinance.”
or
“The details shall be determined by the competent authority.”
Legal basis and constitutional issues
Constitutional requirements
According to the principles of German constitutional law, especially in light of the principle of specificity (Art. 20 Sec. 3 of the Basic Law) and the principle of essentiality, blanket laws must not result in an impermissible transfer of legislative authority to the executive. This means that the parliamentary legislator must make the essential decisions themselves, and only subordinate regulations may be delegated.
Standards of review by the Federal Constitutional Court
The Federal Constitutional Court requires that in the case of blanket provisions, at least the following requirements must be enshrined in the law itself:
- Purpose and objective of the regulation
- Substantive framework for implementation
- Limits and prerequisites for the issuance of subordinate norms
Legislative competence and delegation
The transfer of regulatory powers to the executive by means of blanket laws is only permissible as far as the constitution allows the legislator to delegate such powers, and the core elements of the regulation are reserved for the legislator (the theory of essentiality).
Examples of blanket laws
Application in various legal fields
Criminal law
In criminal law, so-called blanket penal lawsare found, in which the elements of the criminal offense are only specified by reference to other legal norms. An example is Section 95 of the Residence Act, which classifies violations of regulations and provisions from other parts of the Act as criminal offenses.
Administrative law
In administrative law, blanket laws are often used for technical or administrative purposes, such as in environmental law or construction law (e.g., the Federal Immission Control Act, which delegates the specification of key standards to ordinances).
Social law
Likewise, in social law, blanket laws serve as the basis for the norm-concretizing administrative practice by ordinances, for example, for setting contribution rates or specific benefit conditions.
Advantages and risks of blanket laws
Advantages
- Flexibility: The ability to regulate details through sub-statutory norms allows for rapid adaptation to changing circumstances, especially in technical and complex matters.
- Relief for the legislator: By outsourcing detailed regulations, Parliament and the legislative machinery are relieved.
Risks
- Democratic oversight: Delegating regulatory powers to the executive carries the risk of circumventing the principle of parliamentarism.
- Legal uncertainty: The substantive indeterminacy of blanket laws can lead to uncertainties in the application of the law.
Distinction from similar types of laws
Difference from the referencing law
Ein Referencing law refers to existing provisions in other laws, usually to maintain clarity. In contrast, the blanket law itself first creates an empowerment to issue further norms.
Difference from the mixed law
Mixed laws contain not only their own substantive provisions but also extensive authorizations, whereas the blanket law for the most part refrains from substantive regulation.
Historical development and current significance
Historical development
Blanket laws are a phenomenon of modern legislative technique. Their use began with the increasing complexity of state regulatory tasks in the 19th and 20th centuries. With the expansion of the welfare state and the technologization of key areas of life, the legislative mechanism of the blanket norm gained importance.
Current relevance
To this day, blanket laws are an integral part of legislative technique in national and transnational legal systems, especially in the enactment of EU directives and their implementation at the national level.
Literature and further sources
- Hans-Peter Schneider, ‘Blankettgesetz und Verfassung’, Kohlhammer, Stuttgart 1972.
- Maurer, Hartmut: Allgemeines Verwaltungsrecht, 20th edition, Munich 2023.
- BVerfG, Decisions (various judgments on the theory of essentiality and possibilities of delegation).
Summary: The blanket law is an essential instrument of legislative steering, which, through its deliberate renunciation of complete regulatory competence, enables the efficient structuring of legal relationships. Nevertheless, its use requires strict constitutional scrutiny to ensure rule-of-law standards such as legal clarity and democratic participation.
Frequently asked questions
What role does the blanket law play within the legislative system?
Within the legislative process, the blanket law serves as a special form of a formal law that does not contain complete substantive regulations itself, but rather authorizes the issuance of supplementary, implementing, or concretizing regulations through ordinances or administrative regulations. From a systematic perspective, blanket laws thus represent a break with the principle of legal clarity, since essential substantive requirements are outsourced from the actual law and are only concretized through subordinate norms. Their significance lies above all in the fact that they enable the legislature to respond flexibly to technological developments or social changes by allowing detailed regulations to be adjusted more rapidly without the full legislative process—provided the constitutional requirements of Article 80 of the Basic Law (such as specificity, scope, purpose, and extent of the authorization) are observed.
What constitutional requirements apply to blanket laws?
Blanket laws are subject to strict constitutional requirements, in particular from the rule-of-law principle and the principle of democracy enshrined in the Basic Law. Pursuant to Article 80(1) of the Basic Law, the blanket law must shape the authorization in such a way that the content, purpose, and scope of the delegated power are sufficiently determined. This means that the parliamentary legislator itself must lay down the central guidelines and only within these boundaries is completion by the executive permissible. Furthermore, from the perspective of the rule of law, clarity and foreseeability must be ensured so that citizensare able to recognize, at least approximately, the legal consequences affecting them based on the law itself. If these requirements are disregarded, the subordinate ordinances issued based on the blanket empowerment are formally or materially unlawful.
What are typical areas of application for blanket laws?
Blanket laws are typically used where the legislature is confronted with rapidly changing situations or complex technical regulatory areas. Practical fields of application include, in particular, environmental law (e.g., the Federal Immission Control Act and numerous associated ordinances), economic administration law (e.g., price regulations, licensing provisions for pharmaceuticals), as well as police law and building regulations law. They also play a role in those areas where European law has to be transposed into national law and flexible adjustments are desirable. Tax law also contains numerous blanket provisions that primarily enable supplementary detailed regulations.
How do blanket laws differ from framework laws?
At first glance, blanket laws and framework laws appear similar; however, they differ significantly in function and design. While the blanket law creates an immediate authorization for issuing further sub-statutory law (primarily ordinances) and usually does not contain its own substantive requirements, the framework law sets minimum requirements that must be filled in by the legislation of the federal government or the states. The framework law thus binds another legislator (usually at state or federal level), whereas the blanket law delegates directly to the executive. In contrast, the framework protection principle requires broader parliamentary involvement at both levels, while for blanket laws, it is primarily executive bodies that act.
What monitoring mechanisms exist for ordinances based on a blanket law?
The ordinances enacted on the basis of a blanket law are subject to both formal legal control and judicial review. On the one hand, the Bundesrat, where appropriate competences exist, monitors the enactment of many ordinances before they enter into force. On the other hand, citizensand associations can have ordinances judicially reviewed. The key control points here are, in particular, compliance with the statutory empowerment basis (such as content, purpose, and scope of the blanket empowerment), the constitutional procedure, and compatibility with higher-ranking law (e.g., fundamental rights, European requirements). Courts have the authority to declare an ordinance invalid if it violates the requirements of the blanket law or other higher-ranking norms.
What practical problems arise in the application of blanket laws?
In practice, blanket laws pose significant challenges for both judicial application and those subject to the norms: On the one hand, outsourcing essential content to sub-statutory regulations results in limited legal clarity and makes it difficult to trace applicable law, since statements about the applicable law can usually only be made by referring to several normative levels. On the other hand, there is a risk of excessive delegation of legislative responsibility to the executive, which may undermine parliamentary oversight and conflict with the separation of powers. Additionally, uncertainties arise regarding the determination of which specific rights and obligations are actually regulated, since clarity only arises after the issuing and publication of the subsequent ordinance.
Are blanket laws also applied in criminal law and, if so, how are they handled there?
In criminal law, blanket laws are generally viewed critically, as the requirement of specificity (§ 1 StGB, Art. 103(2) of the Basic Law) ‘nulla poena sine lege certa’ demands maximum clarity and foreseeability of criminal behavior. Nevertheless, so-called criminal law blanket provisions are also found here, for example in ancillary criminal law (e.g., environmental criminal law, pharmaceuticals law), in which the criminal law defines the elements of the offense only more closely by reference to sub-statutory norms. In these cases, the legislator must set particularly high standards for the determinacy of the authorization and, in particular, ensure that the key elements of the offense are mentioned in the law. The Federal Court of Justice and the Federal Constitutional Court have developed guidelines to ensure that the design of blanket empowerment in criminal law always meets the requirements of the principle of specificity.
