Implementation of laws
Die Implementation of laws refers in German law to the act of applying, implementing, and enforcing the laws enacted by the legislative bodies by the executive branch (executive power). The implementation of laws thus includes all organizational, factual, and legal measures necessary to realize the intent of the legislature. This concept plays a central role particularly in the context of the relationship between the federal government and the states, the separation of powers, and the principles of the rule of law.
Concept and nature of the implementation of laws
The implementation of laws is a central component of the separation of powers in German law and refers to the sovereign administrative activity in accordance with the instructions of the legislature. It comprises all administrative activities including the preparation, execution, and enforcement of laws by administrative bodies.
Laws are initially abstract sets of rules. They become effective in practice only through state organs that monitor their implementation, issue orders, and ensure compliance. The implementation of laws is not limited to individual branches of administration; rather, it takes place throughout the administrative apparatus, whether in municipal, state, or federal administration.
Constitutional foundations
Federal regulations
The Basic Law for the Federal Republic of Germany regulates the legal basis for the implementation of laws in Articles 83 to 91. According to Article 83 of the Basic Law, the federal states (Länder) generally implement federal laws on their own responsibility, unless otherwise specified or permitted by the Basic Law. Thus, the implementation of laws is distributed in a federal structure between the federal government and the states.
Article 83 of the Basic Law: Principle of state administration
Article 83 of the Basic Law stipulates:
“The Länder execute federal laws in their own right, insofar as the Basic Law does not otherwise provide or permit.”
This means that implementation of federal laws is primarily the responsibility of the state administrations. The federal administration is the exception.
Administrative competencies
The Basic Law recognizes various forms of law implementation:
- Implementation of federal laws by the states on their own responsibility
- Federal commission administration pursuant to Article 85 of the Basic Law
- Federally administered implementation pursuant to Article 86 of the Basic Law
- Direct federal implementation by virtue of a special federal statutory authorization
Administrative authority and federal supervision
The federal government has various instruments of control and guidance within the framework of law implementation:
- Legal supervision: Review of the legality of administrative actions by the states (Art. 84 para. 3 of the Basic Law)
- Technical supervision: In the case of federal commission administration, the federal government also exercises substantive and technical supervision (Art. 85 para. 4 of the Basic Law)
Forms of law implementation
States’ own responsibility
The federal states execute most federal laws on their own responsibility. They are responsible for organization and implementation and generally also select and supervise administrative personnel. Federal oversight is limited to compliance with statutory regulations (legal supervision).
Federal commission administration
In matters of particular importance or requiring uniform regulation, the Basic Law provides for so-called Federal commission administration commission administration. In this case, the federal states execute federal laws “on behalf of the federal government.” The federal government has more extensive rights of instruction up to and including technical supervision, meaning it can specify and monitor administrative actions in detail (examples: federal highway administration, federal emissions control).
Federally administered implementation
Direct implementation of laws by federal authorities only takes place in expressly determined cases (Art. 86 of the Basic Law), for instance by federal ministries, the Federal Criminal Police Office, or the Federal Motor Transport Authority. Here, the federal government implements laws through its own agencies.
Measures within the scope of law implementation
Application of the law
The application of the law covers all activities of the administration that apply abstract norms to individual cases. This includes administrative acts, actual acts, as well as purely sovereign actions.
Enforcement and execution
The enforcement of laws also includes the compulsory enforcement of government orders, such as in the case of administrative enforcement under the respective administrative enforcement laws of the states or the federal government.
Legal protection in the implementation of laws
The implementation of laws is subject to judicial oversight. Citizens have the option to challenge measures and decisions within the framework of law application through administrative legal remedies. Courts particularly review the legality of administrative actions and compliance with constitutional provisions.
Significance in the system of separation of powers
The strict separation between legislation and execution is a central feature of the rule of law. On the one hand, the implementation of laws serves to realize the democratic will-formation process; on the other hand, it safeguards the binding effect of the executive to law and justice (principle of legality, Art. 20 para. 3 of the Basic Law).
International aspects
Comparable provisions regarding the implementation of laws exist in other federally structured states. Here, administrative activities and their control are generally regulated in a similar manner, although the division between central and decentralized administrative units varies.
Conclusion
The implementation of laws represents the central interface between the abstract legislative framework and the concrete effect of state action in daily life. Its organization, control, and legal design are essential elements of the federal order, the separation of powers, and the rule of law.
Further norms and literature
- Basic Law for the Federal Republic of Germany, Art. 20, 83 ff.
- Administrative Procedure Act (VwVfG)
- Administrative enforcement laws of the states and federal government
See also
- Separation of powers
- Federalism
- Federal commission administration
- Application of the law
- Legal supervision
- Technical supervision
Frequently Asked Questions
Who is responsible for the implementation of laws in Germany’s federal system?
The implementation of laws in Germany’s federal system is subject to a clear division of competence between the federal government and the states. According to Articles 30 and 83 of the Basic Law, the federal states are fundamentally responsible for implementing federal laws as their own responsibility, unless the Basic Law provides for or permits another arrangement. This means that state authorities and state administrations primarily perform tasks such as granting permits, collecting taxes, or monitoring specific norms. However, there are exceptions: if the so-called federal commission administration (Art. 85 of the Basic Law) applies, the states execute federal laws on behalf of the federal government and under federal technical supervision. In certain areas, the federal government may also establish its own agencies and implement laws through its own administration (federal administration, Art. 86 of the Basic Law). This differentiated system serves the balance of power and administrative proximity to the citizens.
What are the legal requirements for the concrete implementation of laws?
The implementation of laws is subject to numerous requirements based on the rule of law. Central in this regard is the principle of legality, according to which the executive (administration, courts, police) may take no action without a legal basis and may neither exceed nor fall short of existing laws. Further prerequisites are the principle of certainty (laws must be clear and definite), the principle of proportionality (measures may not interfere with fundamental rights more than necessary), as well as the prohibition of arbitrariness (no extraneous considerations, equal treatment principle). Additionally, procedural rules must be observed in the implementation of laws, e.g., rights to a hearing for those affected, right to legal remedies, and clear rules on jurisdiction. Oversight of law implementation is ultimately undertaken by administrative courts and, where applicable, by federal or state audit offices.
How is compliance with laws monitored and ensured during implementation?
Oversight of the implementation of laws takes place at various levels. First, disciplinary and technical supervision by higher authorities or ministries are key control instruments within the administration. Technical supervision not only checks the legality but also the expediency of administrative actions where the administration has discretion. At the federal level, in federal commission administration, the federal government can issue instructions for implementation and monitor actions. In addition, external oversight bodies such as administrative courts ensure that citizens and affected parties can seek legal remedies if they believe their rights have been violated by acts of law implementation. Within the parliamentary system, parliaments also monitor implementation financially and substantively through questions, committees of inquiry, or the Federal/State Audit Office.
In what cases may the federal government directly assume implementation of laws?
The federal government may assume direct implementation of laws pursuant to Article 86 of the Basic Law wherever the Basic Law expressly provides for this. Typical areas are the federal administration with its own agencies, such as the foreign service (diplomatic service), the federal finance administration (customs), the federal police, and federal defense administration. In addition, there are special provisions for certain federal tasks, such as railways or patent law, where the law is implemented directly by federal authorities for reasons of uniformity and effectiveness. Outside these enumeratively (exhaustively) regulated areas, direct federal administration is not permitted; as a rule, the implementation of federal laws is the responsibility of the states.
How are state laws implemented, and how does this differ from the implementation of federal laws?
The implementation of state laws is carried out exclusively by the state administration, since these laws are enacted by the respective state legislatures and only apply within their jurisdiction. Organizational and procedural modalities are based on the relevant constitutional and administrative laws of the respective federal state. In contrast, the Basic Law provides for state priority in implementing federal laws, but depending on the legislation as well as federal interests, federal commission administration or direct federal administration may also be envisaged. State laws are not subject to the oversight of the federal government, but only to internal state control through the state audit office and parliament.
What legal consequences arise from faulty or failed implementation of laws?
Faulty or omitted implementation of laws results in different legal consequences, depending on the type and severity of the violation. Incorrect administrative acts can be challenged by those affected through objection or litigation; in the event of a legal violation, there is a right to reversal, compensation, or a new decision. Authorities may be directed by supervisory agencies to apply laws correctly; in extreme cases, non-implementation of laws can trigger federal legal supervision over the states (e.g., federal-state fiscal equalization). In public service law, individual breaches of duty can result in disciplinary or even criminal proceedings against responsible officials. In political systems, the political responsibility of government members (vote of no confidence, removal from office) may also be affected.
Is there any room for discretionary decisions in the implementation of laws?
Yes, in the implementation of laws, administrative law often grants authorities what is known as discretion, for example, in the form of selection discretion (which measure to take) or decision discretion (whether to act at all). However, this scope for action is legally limited: the administration must exercise its discretion appropriately and proportionately; abuse of discretion (e.g., arbitrary, irrelevant, or unreasonable decisions) is prohibited. Judicial review examines whether discretion was recognized, legal boundaries observed, and use of discretion documented. Guidelines on discretion are provided in individual statutes (e.g. “may,” “can” instead of “must”) as well as in general administrative regulations.
