Concept and significance of federal loyalty
Federal loyalty is a fundamental principle in German constitutional law. It describes the legal relationship of loyalty between the Federation and the Länder within the federalist system of the Federal Republic of Germany. Federal loyalty is one of the central principles of the federal structure, anchored in the Basic Law (Grundgesetz, GG), particularly in the regulation of federal competencies and in the participation of the Länder in federal legislation.
Historical development and constitutional classification
Origins of federal loyalty
The idea of federal loyalty arises from the federal structure principle, which was already evident in the historical German confederations of the 19th century, such as the German Confederation and the Weimar Constitution. With the coming into force of the Basic Law in 1949, the principle of federal loyalty became a constitutionally recognized principle.
Anchoring in the Basic Law
An explicit regulation of the concept of ‘Bundestreue’ (federal loyalty) is not found in the Basic Law. However, the principle is recognized as an unwritten but binding constitutional norm. Its foundations arise indirectly from several provisions, especially from Art. 20 (1) and (3) GG (federal statehood and rule of law), Art. 23 GG (cooperation with the Länder of the EU), as well as from the provisions concerning the distribution of competencies (Art. 30, 70 et seq. GG) and the participation of the Länder in federal legislation (Art. 50 et seq. GG).
Substantive structure of federal loyalty
Duty of loyalty and consideration
Federal loyalty establishes a mutual duty of loyal and trustworthy behavior between the Federation and the Länder. Both levels must, when exercising their competencies, appropriately consider the interests of the other side and must not impair or frustrate their rights and duties.
Positive and negative duties of federal loyalty
- Positive obligations: The Federation and the Länder are obliged to support each other, to cooperate, and to exchange information to maintain the functioning of the state as a whole.
- Negative obligations: Both levels are prohibited from taking unilateral measures that harm the interests of the cooperative Federation-Länder relationship or undermine the distribution of competencies.
Examples and fields of application
Federal loyalty is particularly relevant in the following areas:
- Legislative competencies: The Federation must respect the legislative priority and exclusivity spheres of the Länder, such as in the area of cultural sovereignty.
- Administrative implementation: Within the framework of so-called federal administrative mandates or joint tasks, trustworthy cooperation is required.
- Judicial review: Federal loyalty can be enforced in federal-state disputes (§§ 68 et seq. BVerfGG).
Case law and doctrine
Significance in the Federal Constitutional Court’s jurisprudence
The Federal Constitutional Court (BVerfG) recognizes the principle of federal loyalty as a binding legal norm and regularly applies it to judicially resolve conflicts between the Federation and the Länder. Defining decisions emphasize the participation rights of the Länder, the observance of the federal order, and the objective balance between the state levels.
Examples of leading decisions include:
- Lüth judgment: Clarification of the substantive requirements of the loyalty relationship.
- BVerfGE 1, 299 (Saar Statute judgment): Explains the mutual obligation of consideration in the German federal state.
- BVerfGE 81, 310 ff. (Census costs): Specifies the obligation to coordinate financial burdens.
Conceptual distinction and relation to other constitutional principles
Federal loyalty is closely related to other structural principles of the state, especially federalism and the principle of separation of powers. While the latter seeks a horizontal division of powers, federal loyalty focuses on vertical cooperation. Federal loyalty supplements the distribution of competencies in the GG and fills existing gaps between legal regulations.
Limits of federal loyalty
Federal loyalty is limited by the distribution of competencies established by the Basic Law. It must not lead to a weakening of the constitutionally guaranteed autonomy of the Federation and the Länder. Interventions that bypass the constitutional rules of competence are inadmissible, even if they are claimed to be justified by the principle of federal loyalty.
Significance and practical relevance
Practical implications
Federal loyalty is an essential component of the German federal framework. It ensures a balanced relationship between the sovereignty of the Länder and national integration. Observance of federal loyalty is of considerable importance in federal coordination processes, legislative procedures, budgetary matters, administrative implementation, and the handling of state competencies.
Consequences of violations
Violations of the principle of federal loyalty can be subject to review by the Federal Constitutional Court in the context of federal-state disputes. Sanctions range from declaratory judgments to an obligation to refrain from certain measures.
References and further sources
- cf. BVerfGE 1, 299 (Saar Statute judgment)
- Uhle, Federal Loyalty as Constitutional Loyalty, in: Handbuch des Staatsrechts, Volume IV, 3rd ed. 2011
- Scholz, Federalism and Federal Loyalty, 2nd ed. 2016
- Murswiek, Federal Loyalty, in: DÖV 2011, pp. 779-787
Conclusion
As an unwritten constitutional principle, federal loyalty is a cornerstone of the federal system of the Federal Republic of Germany. It creates a binding framework for mutual respect and cooperation between the Federation and the Länder, supplements the distribution of competencies, and ensures a functioning federal state. The adaptability and legal binding force of federal loyalty make it an indispensable element of the German state structure.
Frequently Asked Questions
What is the significance of the principle of federal loyalty in the relationship between the Federation and the Länder in Germany?
The principle of federal loyalty is constitutive for the federal structure of the Federal Republic of Germany. It does not derive directly from the wording of the Basic Law, but is an unwritten constitutional principle resulting from the entirety of the federal order. Federal loyalty requires the Federation and the Länder to cooperate in mutual consideration and for the common good of the entire state. They are obligated not only to respect their own competencies but also the functioning of the respective other partner in the federal system and to take its interests into account. This results in particular in the duty of loyal cooperation, the avoidance of conduct detrimental to federal or state interests, mutual information, and cooperation in the fulfillment of joint tasks. A violation of federal loyalty can, in the event of a dispute, be reviewed by the Federal Constitutional Court and sanctioned by binding decisions.
In which situations does federal loyalty become legally relevant?
Federal loyalty is practically relevant especially where the Federation and the Länder depend on each other or act within a structure of competences that requires cooperative behavior. Examples include the execution of federal laws by the Länder pursuant to Art. 83 et seq. GG, participation of the Länder in federal legislation via the Bundesrat, and administrative agreements between the Federation and the Länder. The principle is also relevant when exercising concurrent legislative powers or in the context of financial arrangements, for example in balancing financial burdens between the Länder and the Federation and vice versa. Disputes typically concern obligations of information, the prohibition of unilateral assumption of competence, duties of loyalty in contract execution, and participation rights or obligations in the institutions of the federal state.
Can citizens invoke the principle of federal loyalty?
The principle of federal loyalty applies exclusively to the relationship between federal state organs, i.e., between the Federation and the Länder. It is an obligation in the inter-organizational context and does not grant natural or legal persons any individual rights. Citizens therefore cannot invoke federal loyalty, particularly not within the scope of a constitutional complaint pursuant to Art. 93 (1) No. 4a GG. Enforcement is the responsibility of the constitutional organs involved, through constitutional disputes or federal-state disputes before the Federal Constitutional Court.
How is federal loyalty enforced before the Federal Constitutional Court?
If disputes arise within federal relations regarding compliance with federal loyalty, the Federation and the Länder may apply to the Federal Constitutional Court. The typical procedure is the so-called federal-state dispute pursuant to Art. 93 (1) No. 3 GG, §§ 68 et seq. BVerfGG. In such cases, the court examines whether a party has violated its federal loyalty obligations through measures or failure to act. The jurisprudence in Karlsruhe further details the substantive requirements of federal loyalty on a case-by-case basis by interpreting, in particular, the obligation to cooperate, the duty to consider interests, and the obligation to balance interests in the common cause.
Are there legally codified obligations associated with the principle of federal loyalty?
Federal loyalty as such is not a codified law, but an unwritten constitutional principle. Nevertheless, some of its manifestations are laid down in various provisions of the Basic Law, such as the obligation to cooperate loyally (e.g., Art. 84 (1) GG: ‘in agreement with the Federal Government’ or Art. 91a et seq. GG: joint tasks). The rules on the participation of the Länder in the Bundesrat and on federal oversight of the Länder also reflect elements of federal loyalty. The further-reaching content, however, remains the subject of interpretation by the Federal Constitutional Court, which serves to fill gaps and relieve tensions in the competency structure and guarantee a cooperative federal state.
How does the principle of federal loyalty affect legislation?
Legislation at both federal and state level is shaped by the principle of federal loyalty, requiring both levels to exercise their powers cooperatively and considerately. This is reflected, in particular, in the obligation to make practical arrangements with respect to concurrent legislative powers, comply with duties of information, and refrain from disadvantaging the other partner or confronting them with fait accompli. The Bundesrat as a participatory body also provides an institutionalized platform for upholding federal loyalty. Violations may result in laws being adopted incorrectly and possibly challenged or declared void by the Federal Constitutional Court.
What are the consequences of a violation of federal loyalty under constitutional law?
A breach of federal loyalty constitutes a violation of the constitution, but it generally does not result in criminal or individual sanctions. The primary consequence is a ruling by the Constitutional Court declaring the unlawfulness of the disputed conduct and, if necessary, an obligation to refrain from or perform certain acts. In individual cases, the Federal Constitutional Court may also issue orders aimed at restoring a lawful state of affairs. The legal effects are thus restricted to eliminating the violation of federal loyalty and re-establishing the federal equilibrium.
