Concept and Fundamentals of Derogation
Definition of Derogation
The Concept Derogation describes in legal terms the (partial) annulment or repeal of existing legal norms by another norm of equal or higher rank. A common distinction is made between partial derogation (partial repeal or amendment of a legal provision) and total derogation (complete repeal of a norm). Derogation can take place between norms of equal rank (e.g., between statutes) or between norms of different hierarchical levels, with the general principle always applying: Lex superior derogat legi inferiori (the higher-ranking norm sets aside the lower-ranking one).
Distinction from Similar Terms
In contrast to abrogation, which describes the complete annulment of a law, derogation usually refers to the partial or selective repeal of specific sections of a norm. The principle lex specialis derogat legi generali is closely connected to derogation: a more specific norm overrides or restricts a more general norm within the same regulatory area.
Forms and Areas of Application of Derogation
Types of Derogation
Partial Derogation
Partial derogation occurs when only specific provisions or parts of a statute or legal norm are repealed or amended. Typically, this is done by amending laws, which clearly specify which passages are repealed or replaced by new regulations.
Total Derogation
In the case of total derogation, the entire law or legal norm is repealed in its entirety. This is regularly done by explicit abrogation clauses or repealing laws that clarify the complete annulment.
Legal Areas in Which Derogation Is Significant
Derogation is relevant in numerous legal fields, including constitutional law, administrative law, criminal law, and international law. The term derogation is particularly important in European law, as obligations from treaties or directives are regularly modified or restricted by later regulations.
Derogation in International and European Law
European Law and International Treaties
Within the European Union, derogation is frequently used to allow member states, under certain conditions, a temporary or subject-specific deviation from EU law requirements (“derogation clauses” or “exemption clauses”). The aim of such clauses is to accommodate national particularities or to create transition periods for implementing certain laws. At the same time, this also allows for the management of legal harmonization within the EU.
In international law, derogation is mainly used in connection with human rights treaties, such as when states are allowed to temporarily withdraw from certain obligations during a state of emergency, provided this is foreseen in the relevant conventions (so-called emergency derogation, e.g., under Art. 15 ECHR).
Requirements, Procedures, and Limits of Derogation
Requirements for an Effective Derogation
The derogation of a legal norm requires that the derogating (annulling) norm is sufficiently specific and that the relationship to the previous norm is clearly regulated. It is decisive whether the derogation is explicit (express) or tacit (implicit).
Express Derogation
An express derogation exists when the amending or repealing law explicitly states which regulations are to be annulled. This creates legal certainty and clarity for legal practitioners.
Implicit Derogation
An tacit derogation is assumed when a new norm is substantively incompatible with an existing one and it can be concluded that the subsequent provision sets aside the earlier one (lex posterior derogat legi priori).
Limits of Derogation
The possibility of derogation is limited by higher-ranking law. For example, certain fundamental rights are indispensable and cannot be derogated by ordinary statutory provisions. The principle of the hierarchy of norms also imposes restrictions: a norm can only be derogated by a norm of the same or higher rank.
In international and European law, the relevant legal source itself generally stipulates the scope, requirements, and permissible content of derogation as well as its time limitation and supervision by higher-level bodies or courts.
Effect and Importance of Derogation in Practice
Legal Consequences of Derogation
By (partially) annulling a norm through derogation, a new set of rules is created, which will henceforth govern the same circumstances. All legal relationships previously governed by the derogated norm are, from the moment of annulment, judged according to the new law—except for regularly completed matters, for which the old law can continue to apply (principle of intertemporal law).
Significance for Legal Certainty
Derogations serve to adapt, modernize, and harmonize the law. However, they require a high degree of precision in legislation to avoid ambiguities or gaps, especially in the case of tacit derogations.
Literature and Further Sources
- Erich Molitor: Methodenlehre der Rechtswissenschaft. Munich, 2010.
- Hans Kelsen: Pure Theory of Law, Vienna 1960.
- Treaty on European Union (TEU)
- European Convention on Human Rights (ECHR)
With this presentation, the article provides a comprehensive, systematic overview of the legal dimensions of derogation and its significance in various national and international legal systems.
Frequently Asked Questions
When and under what conditions is derogation permitted under German law?
A derogation, meaning the annulment or deviation from existing legal provisions, is permissible under German law only under certain conditions. As a rule, a clear statutory authorization is required in order to deviate from applicable law. In the ordinary legislative process, a newer norm can derogate an older one either explicitly or implicitly. In administrative law, it is possible to grant so-called exemptions, which under strict conditions allow deviations from legal provisions. These generally require a statutory basis that precisely defines the type, scope, and limits of the authorization. In constitutional law, derogations are also only possible with strict adherence to the Basic Law, in particular, they may not affect the eternity clause set out in Art. 79 (3) GG. Violations of the admissibility requirements regularly lead to the nullity of derogating measures or norms.
How does temporary derogation differ from permanent derogation?
Temporary derogations involve the repeal of norms for a limited period of time, such as by temporary laws, emergency legislation, or pandemic-related exemptions. Their admissibility generally requires a clear time limit and an explicit justification in the legislative process as to why a temporary deviation is necessary. Permanent derogation, on the other hand, leads to the permanent repeal or replacement of the previous norm. This is done by the legislature through the regular legislative process and does not require a further end date; the earlier provision is then generally considered repealed, unless transitional provisions have been made. The specific requirements for clarity and specificity are high in both cases in order to maintain legal certainty and the principle of definiteness.
What are the legal consequences of derogation for existing legal relationships?
A derogation generally operates ex nunc, i.e., from the time it enters into force. Legal matters that have already been conclusively settled remain regularly unaffected by the new legal situation, unless the legislature explicitly orders retroactive effect (ex tunc). However, the admissibility of genuine retroactive effect is subject to strict constitutional requirements, particularly the principle of legitimate expectations under Art. 20 (3) GG. For pending proceedings or continuing legal relationships, the derogation may be applied directly unless special transitional provisions have been established. In administrative law practice, this can mean that proceedings already begun must be continued under the new legal situation, unless issues of legitimate expectations stand in the way.
Can derogation be effected by norms of lower rank?
According to the principle of the hierarchy of norms, derogation is permitted only by norms of equal or higher rank. An ordinance (regulation) therefore generally cannot derogate a statute, but can only provide deviations within the limits set by statute. Only within the framework granted by higher-ranking norms can a more specific but not derogative provision be enacted (lex specialis). Under no circumstances may a subordinate regulation derogate higher-ranking law; if this is nevertheless attempted, the affected provision is void and ineffective due to the primacy of statute or constitutional law (Art. 20 (3) GG).
What role does the requirement of clarity of norms play in derogation?
The requirement of clarity of norms demands that the scope and impact of a derogating provision are clearly discernible. A derogation must be comprehensible and clearly understandable for those subject to the norm. In particular, it must be clear which provision is being repealed or amended to what extent—this is typically ensured by explicit repeal, amendment, or substitution clauses in the legal text. Unclear derogating rules contradict the rule of law principle and may be declared void, especially by the ordinary courts or the Federal Constitutional Court.
To what extent can European law affect national derogating provisions?
European law can oblige national legislatures to derogate, repeal, or amend certain norms, for example, in the context of implementing EU directives or due to the direct applicability of EU regulations. National derogations that conflict with European requirements are invalid from the EU law perspective and may be disregarded by national courts. Furthermore, EU law—in accordance with Art. 25 GG and the case law of the European Court of Justice—always takes precedence over national law in case of conflict, so that even a previously permissible national derogation must be repealed or modified if it violates secondary or primary European law.
Can fundamental rights be restricted or repealed by derogation?
Fundamental rights in Germany can only be restricted under very narrow, constitutionally established conditions. A complete derogation of fundamental rights would only be possible in those cases in which the Basic Law provides for corresponding restriction clauses (e.g., Art. 9 (2) GG or in the case of Art. 10 GG). Even with emergency laws, Art. 19 (2) GG ensures an indispensable minimum of fundamental rights protection; the so-called eternity clause in Art. 79 (3) GG forbids any derogation of the guarantee of human dignity (Art. 1 (1) GG), the principle of democracy, and the rule of law. Any derogative measure that goes beyond these limits would be unconstitutional.
