Definition and significance of the authentication of laws
Die Authentication of laws is a procedural step in the legislative process in which a law already passed by the legislative body is made legally binding and prepared for promulgation through confirmation by a competent authority. Authentication is central to the effectiveness of a formally enacted law in the parliamentary system. In Germany, it refers in particular to the confirmation of the constitutional and proper enactment of a law by the Federal President, or by the state government in the federal states.
Historical development of authentication
The practice of authenticating laws developed alongside the emergence of modern parliamentary procedures. Its origin can be traced back to the principle of separation of powers and the necessary requirement to review legal acts for their formal and, in part, substantive constitutional conformity before they enter into force.
Constitutional foundations
Authentication in the Basic Law
Federal level
According to Article 82 paragraph 1 of the Basic Law (GG) laws are authenticated by the Federal President and promulgated in the Federal Law Gazette. Authentication is an indispensable step in the legislative process and is stipulated as a constitutional duty. A law enters into force only after authentication and promulgation. The text of the law must be correct and complete; changes by the authentication authority are not permitted.
State level
At the state level, authentication is regulated by the respective state constitution. Responsibility generally lies with the respective state head (Minister President) or another body specified by the state constitution or state laws.
Functions of authentication
Authentication confirms:
- Compliance with the constitutionally prescribed procedures during the legislative process.
- The proper adoption of the resolution.
- The identity of the text submitted for authentication with the parliamentary resolution passed.
Through authentication, the authenticator takes responsibility that the law has been passed by the competent bodies in accordance with the constitution and the rules of procedure.
Practice of authentication in Germany
Procedural course
- Adoption of the resolution: A law is passed in the German Bundestag and, if applicable, the Bundesrat.
- Submission: The adopted text of the law is submitted to the Federal President.
- Authentication: The Federal President examines formal and, where appropriate, substantive aspects in accordance with his constitutional responsibility.
- Promulgation: After authentication, publication in the Federal Law Gazette follows.
Form and significance of authentication
Authentication comprises an authentication clause signed by the Federal President and appended to the law text. This usually contains the sentence:“The Federal President has authenticated the following law, which is hereby promulgated.”
Scope of the power of examination
Formal examination
The main task during authentication is to review whether the law has been properly enacted. This concerns:
- Compliance with legislative competences.
- The procedural rules of the Bundestag and Bundesrat.
- The correct version of the text.
- The consent of the Bundesrat, if required.
Substantive examination
There is disagreement in legal scholarship regarding substantive control (material examination) of the law text by the authenticator. According to the prevailing opinion, the power of examination of the Federal President essentially extends to serious violations of the Basic Law and constitutional principles. The de facto control is thus limited. The final decision on the constitutionality of a law is vested in the Federal Constitutional Court.
Legal consequences of missing or defective authentication
Without authentication, a law does not become effective. Errors in authentication, such as signing a version differing from the parliamentary resolution, can render the law null and void. Depending on the severity of the defect, subsequent rectification (by reparatory law or renewed authentication) is possible, but constitutionally disputed.
Authentication of statutory instruments and other regulations
The term authentication also applies to statutory instruments, statutes, and other sovereign regulations. The formal requirements are based on legal provisions and the respective allocation of competence (e.g., ministries for statutory instruments).
International comparisons
Comparable procedural steps exist in other parliamentary democracies, although the responsibilities and level of scrutiny of the head of state are organized differently. In Switzerland, authentication is carried out by the Federal Council; in France, it is the President of the Republic who has a similar function.
Significance in legislative practice
Authentication is an essential step to ensure legal certainty and transparency in the legislative process. It bindingly confirms that the law has been enacted in due form and confers upon the law text the authority required in the legal order.
Literature and further regulations
- Basic Law for the Federal Republic of Germany, Art. 82 GG
- Federal Law Gazette (BGBl.)
- Federal Constitutional Court Act (BVerfGG)
- Commentary literature on the Basic Law
- State constitutions of the federal states
This comprehensive overview of the term Authentication of laws illuminates all legal aspects that must be observed in legislative procedures at federal and state level and presents the constitutional foundations as well as their practical implementation and legal relevance.
Frequently asked questions
What legal requirements must be met for the authentication of a law?
Various legal requirements must be complied with before the authentication of a law. First, the legislative process must be conducted in the manner provided for in the Basic Law. This includes the deliberation and adoption of the law by the Bundestag and, if applicable, the Bundesrat, including consideration of any possible objections or consents by the Bundesrat. After the successful conclusion of the parliamentary process, the law must be submitted to the Federal President for authentication. Submission is regularly carried out by the Federal Government. The Federal President first examines whether the law has been properly enacted and whether there are any obvious violations of the Basic Law. If these requirements are met and there are no serious constitutional objections, authentication is given by the signature of the Federal President.
What role does the Federal President play in the authentication of a law?
The Federal President plays a key role in the authentication of a law, because according to Art. 82(1) sentence 1 GG, he signs the laws presented for authentication. The signature represents the final confirmation of the legislative process and signals that the law has been properly enacted. The examination power of the Federal President essentially covers the formal and, to some extent, the substantive review (the so-called ‘evidence review’) for obvious violations of the Basic Law. If he identifies serious formal or substantive constitutional violations, the Federal President can refuse authentication. In practice, however, authentication is usually granted, so that the actual political and legal responsibility remains with the parliament and the Federal Government.
When does a law become legally effective after authentication by the Federal President?
The authentication of a law by the Federal President alone does not yet create any legal effect for citizens and authorities. Only the subsequent promulgation in the Federal Law Gazette establishes legal binding force in accordance with Art. 82(1) sentence 2 GG. After authentication, the law is countersigned by the Federal Chancellor and the responsible Federal Minister and then published in the official gazette. As a rule, the law only becomes legally binding on the day after its promulgation, unless another date is expressly stipulated in the law. Authentication is thus a necessary, but not the final, step in attaining the legal force of a law.
Can the authentication of laws be challenged or reviewed?
The authentication of a law by the Federal President is, in principle, a sovereign official act with binding character. Legally, the literature discusses the extent to which authentication, as an act of executive power, is subject to judicial review at all. The Federal Constitutional Court has so far emphasized that the primary political and legal responsibility rests with the legislative bodies. A direct challenge to authentication as an administrative act is excluded, as it constitutes a constitutive stage of the legislative process. Constitutional complaints against authentication itself are therefore not admissible; however, the lawfulness can subsequently be reviewed in the context of abstract or concrete norm control.
Can a law enter into force without authentication?
In the German legal system, authentication is an indispensable prerequisite for the entry into force of a law at the federal level. Without the signature of the Federal President and subsequent promulgation in the Federal Law Gazette, a law can be neither legally existent nor effective. If authentication is missing, the law is incomplete and has no legal effect. Cases in which a law has entered into force without authentication are neither conceivable nor legally permissible, as this would circumvent the constitutionally prescribed course of the legislative process.
How does authentication differ at the federal and state level?
Authentication of laws at the state level follows principles comparable to those at the federal level, but with state-specific features. In most federal states, authentication is carried out by the respective Minister President or another constitutionally authorized person (e.g., President of the State Parliament), depending on the requirements of the relevant state constitution. Here too, formal and procedural rules must be adhered to. There is often an examination power on the part of the authenticator with regard to the formal and, where appropriate, obvious substantive constitutionality. Differences may arise in the specific arrangements for responsibilities and the scope of review, whereas the fundamental significance of authentication as the last formal prerequisite for the entry into force of laws remains unchanged.
What are the legal consequences of defective authentication?
Defective authentication, for example when the law does not correspond in substance to the text previously adopted or competences are disregarded, can have serious legal consequences. Such errors can render the law void if the deviation is material and undermines the state’s decision-making process. If a law that has not been formally authenticated correctly is nevertheless promulgated, courts have in the past, through constitutional complaints or abstract judicial review, declared the law void or inapplicable. However, minor or purely editorial errors without substantive impact are usually disregarded, as long as the legislator’s intent is clearly identifiable.
