Definition and concept of the blanket law
Ein Blanket law is a type of law that predominantly consists of an incomplete, not further specified regulation within the legal system, the concrete design or supplementation of which is effected by subordinate legal norms, usually ordinances or administrative regulations. A characteristic of the blanket law is that it contains a formal authorization or framework and deliberately leaves the provisions regarding the details open. The term derives from the Latin ‘blanco’ or French ‘blanc’, indicating that the law is ’empty’ or ‘unwritten’ and is only completed by further provisions.
Systematic classification in law
Position in the legislative process
Blanket laws are part of legislative technique and are adopted as part of the ordinary legislative procedure according to constitutional requirements. They are often addressed to the executive, in particular to ministries or other administrative bodies, and authorize these to issue more detailed implementing provisions through legal ordinances or administrative regulations.
Relationship to framework laws
In contrast to the framework law, which sets substantive minimum requirements or basic structures and only leaves limited discretion for the implementer, the blanket law is characterized by a particularly wide margin for specification through subordinate legal acts. While framework laws are often used to preserve federal order and partially stipulate material legislation (e.g., formerly in education law), blanket laws are typically technical in nature.
Structure and composition of blanket laws
Key features
Characteristics of blanket laws include:
- Absence or brevity of substantive regulation: Central aspects of the subject matter are not determined in the law itself but are explicitly referred for later specification.
- Empowerment norm: A core element is the authorization granted to the administration to establish more detailed provisions by means of a subordinate legal act.
- Dynamic reference: Often, reference is also made to existing or yet to be enacted provisions.
Drafting techniques
Blanket laws regularly use formulations such as:
“The details are regulated by the Federal Government by ordinance.”
or
“The specifics are determined by the competent authority.”
Legal basis and constitutional questions
Constitutional requirements
According to the principles of German constitutional law, in particular in light of the principle of legal certainty (Art. 20 para. 3 GG) and the principle of materiality, blanket laws may not result in an impermissible transfer of legislative power to the executive. This means that parliament itself must make the essential decisions and only subordinate regulations may be delegated.
Standard of review of the Federal Constitutional Court
The Federal Constitutional Court requires that in the case of blanket regulations, at least the following requirements must be included in the law itself:
- Purpose and aim of the regulation
- Substantive framework for specification
- Limits and prerequisites for issuing subordinate norms
Legislative competence and delegation
Transferring regulatory competences to the executive through blanket laws is only permissible as far as the constitution allows the legislature to delegate and the core elements of the regulation remain reserved for the legislature (materiality theory).
Examples of blanket laws
Application in various areas of law
Criminal law
In criminal law there are so-called blanket criminal laws, in which the offense of a criminal norm is only specified by reference to other legal norms. An example is § 95 of the Residence Act, which qualifies violations of provisions from other parts of the Act as criminal offenses.
Administrative law
In administrative law, blanket laws are often used for technical or administrative regulatory matters, such as in environmental law or building law (e.g., the Federal Immission Control Act, which delegates the concretization of essential standards to ordinances).
Social law
Similarly, blanket laws in social law serve as the basis for norm-specifying administrative practice through ordinances, for example, to set contribution rates or specific benefit conditions.
Advantages and risks of blanket laws
Advantages
- Flexibility: The possibility of regulating details through subordinate norms allows rapid adaptation to changing circumstances, particularly in technical and complex subject areas.
- Relief for the legislator: Parliament and the legislative machinery are relieved by outsourcing detailed regulations.
Risks
- Democratic oversight: Delegating regulatory power to the executive creates the risk of circumventing the principle of parliamentarism.
- Legal uncertainty: The lack of substantive specificity in blanket laws can lead to uncertainty in legal application.
Distinction from similar types of laws
Difference from reference law
Ein Reference law refers to existing provisions of other laws, mainly to maintain clarity. In contrast, the blanket law itself first creates the authorization for the enactment of further norms.
Difference from mixed law
Mixed laws contain, in addition to their own substantive regulations, extensive authorizations, while the blanket law almost exclusively waives substantive specification.
Historical development and current significance
Historical development
Blanket laws are a phenomenon of modern legislative technique. Their use began with the increasing complexity of governmental 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 blanket norms gained importance.
Current relevance
To this day, blanket laws remain 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 materiality theory and delegation possibilities).
Summary: The blanket law is an essential tool of legislative control that, by deliberately refraining from comprehensive regulatory competence, enables the efficient shaping of legal relations. Nevertheless, its use requires strict constitutional oversight to ensure the rule of law standards such as legal clarity and democratic participation.
Frequently asked questions
What role does the blanket law play within the legislative systematics?
Within legislation, the blanket law serves as a specific form of formal law which itself does not contain complete substantive legal provisions, but rather authorizes the enactment of supplementary, implementing, or specifying regulations through ordinances or administrative regulations. From a systematic point of view, blanket laws therefore break with the principle of clarity of norms, as essential substantive requirements are outsourced from the actual law and only concretized through subordinate norms. Their significance lies primarily in enabling the legislature to respond flexibly to technical developments or social changes by allowing detailed regulations to be adjusted more quickly, without the full legislative process, provided that the constitutional requirements of Article 80 GG (such as specificity, scope, purpose, and extent of the authorization) are met.
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 of the Basic Law. According to Article 80(1) GG, the blanket law must structure the authorization so that the content, purpose, and extent of the granted authorization are sufficiently determined. This means that parliament itself must provide the key guidelines and only within these limits may the executive fill in the details. In addition, legal clarity and foreseeability must be ensured from the rule-of-law perspective so that citizensare able to recognize, at least approximately, the legal consequences affecting them directly from the law. If these requirements are not met, ordinances enacted on the basis of the blanket authorization are formally or substantively unlawful.
What typical areas of application are there for blanket laws?
Blanket laws are typically used where the legislature is confronted with rapidly changing situations or complex technical regulatory matters. Practical fields of application are, in particular, environmental law (e.g., the Federal Immission Control Act and numerous ordinances thereto), economic administrative law (e.g., price regulations, approval requirements for pharmaceuticals), as well as police law and construction regulations. They also play a role in areas where European law must be transposed into national law and flexible adjustments are desirable. Tax law also contains numerous blanket provisions that primarily enable supportive detailed regulations.
How do blanket laws differ from framework laws?
Blanket laws and framework laws show similarities at first glance, but differ clearly in function and structure. While the blanket law creates immediate authorization for the enactment of further subordinate law (primarily ordinances) and usually does not contain its own substantive requirements, the framework law prescribes minimum requirements that must be implemented by the federal or state legislature. The framework law, therefore, binds another legislator (mostly at the federal or state level), while the blanket law delegates directly to the executive. In contrast, the principle of framework protection requires broader parliamentary participation at both levels, whereas the blanket law primarily involves executive bodies.
What control options exist for ordinances based on a blanket law?
Ordinances enacted on the basis of a blanket law are subject to both formal legal oversight and judicial review. On one hand, the Bundesrat, where appropriate, monitors the enactment of many ordinances before they come into force. On the other hand, citizensand associations may have ordinances reviewed in court. The key points of control are, in particular, compliance with the statutory enabling basis (such as content, purpose, and extent of the blanket authorization), the constitutional procedure, and consistency with higher-ranking law (e.g., fundamental rights, European provisions). Courts have the authority to declare an ordinance invalid if it violates the requirements of the blanket law or other superior norms.
What practical problems arise in the application of blanket laws?
In practice, blanket laws pose a significant challenge for both judicial application and for those subject to the norms: On the one hand, outsourcing essential content to subordinate regulations leads to low legal clarity and makes it difficult to comprehend the applicable law, since statements on the state of the law are only possible by referencing several hierarchical levels. On the other hand, there is a risk of an excessive delegation of legislative responsibility to the executive, which can undermine parliamentary control and violate the principle of separation of powers. Additionally, uncertainties arise regarding which specific rights and obligations are actually regulated, as clarity only emerges with the issuance and notification of the subsequent ordinance.
Are blanket laws also applied in criminal law, and if so, how are they dealt with there?
In criminal law, blanket laws are generally viewed critically because the principle of legal certainty (§ 1 StGB, Art. 103(2) GG) — ‘nulla poena sine lege certa’ — requires maximum clarity and predictability of punishable conduct. Nevertheless, so-called blanket provisions can also be found here, for example, in secondary criminal law (such as environmental criminal law, pharmaceutical law), in which the criminal law narrows down the elements of the offense by referring to subordinate norms. In such cases, the legislature must set particularly high standards for the specificity of the authorization and, in particular, ensure that the core elements of the offense are also stated in the law. The Federal Court of Justice and the Federal Constitutional Court have developed guidelines to ensure that the design of blanket authorizations in criminal law always meets the requirements of the principle of legal certainty.
