Concept and definition of regulation
A regulation is a legal norm issued by an authorized entity—usually the executive branch—that establishes general and abstract provisions for a specific area of life. Regulations rank below laws but specify or supplement their provisions. Alongside laws and statutes, they constitute an independent source of law in public law.
The legal significance and structure of regulations vary depending on the legal system, particularly in federal, state, and European law. In German law, the regulation is a central element of the hierarchy of norms and acts as an intermediary between laws and subordinate administrative instructions.
Legal basis and legal character of regulation
Position in the system of norms
Regulations have a general and abstract character, meaning they apply to an indefinite number of cases and persons, without reference to a specific individual case. They are enacted through so-called derivative law-making proceedings, as their legitimacy is derived from authorization by a formal law.
In the hierarchical order, regulations stand below laws but above administrative instructions. Usually, their issuance further elaborates or fully clarifies a formal law.
Distinction from law and statute
- Laws are norms enacted by constitutional bodies with constitutional status or parliamentary acts, which are subject to democratic procedures.
- Statutes are enacted by public law corporations for the regulation of their own affairs.
- Regulations originate from executive bodies and require statutory authorization.
Legal basis: The citation requirement and the regulation principle
According to Article 80 of the Basic Law (GG), regulations may only be issued on the basis of a federal or state law. This enabling provision must precisely define the purpose, content, and scope of the regulation (citation requirement). The authorization determines which body, in which procedure, and to what extent the regulation may be enacted.
Forms and types of regulations
According to the issuing body
In the German legal system, regulations are distinguished according to the body that issues them:
- Government regulations: Issued by the Federal Government, state governments, or individual ministries.
- Legal regulations: A general collective term for normative orders issued by the executive.
- Emergency regulations: In exceptional cases—such as natural disasters or armed conflicts—a special body may issue emergency regulations, for example pursuant to Article 115 GG in the event of a state of defense.
According to content and scope of application
- General regulations: Apply to an indefinite number of recipients and regulate abstract circumstances.
- Individual regulations: Concern specific matters, but generally do not have a lasting abstract character.
Examples of important regulations
- Road Traffic Regulations (StVO)
- Federal Immission Control Regulation
- Medicinal Products Prescription Regulation
Procedure for the enactment of regulations
Regulatory authorization
A prerequisite for the issuance of a regulation is an explicit statutory enabling provision. This must specify the content, purpose, and scope of the authorization with sufficient clarity. In federal law, this is governed by Art. 80 para. 1 GG, and is supplemented in many specialized laws.
Involvement of the Bundesrat and the public
Whether a regulation must be submitted to the Bundesrat for approval is specified in the respective enabling provision. Approval is often required, especially in matters of national importance. Drafts of regulations may also be presented in the context of hearings with associations or public participation to weigh up interests.
Promulgation and entry into force
Regulations generally enter into force upon their publication. In federal law, promulgation usually occurs in the Federal Law Gazette, in state law in the respective State Law Gazette. Entry into force may occur either upon promulgation or at a defined later date.
Legal binding effect and control of regulations
Binding effect
Regulations are binding on citizens and the administration and have an immediate legal effect. They bind all public authorities, provided they have been properly enacted.
Judicial review
Regulations are subject to judicial control. Courts can review their compatibility with higher-ranking law—particularly the Basic Law and formal statutes—and may declare them invalid in the event of illegality.
Judicial review of norms
- Abstract judicial review: Conducted by the Federal Constitutional Court (Art. 93 GG) or state constitutional courts upon application.
- Incidental judicial review: In the context of administrative court proceedings, the validity of a regulation can be examined.
Annulment and amendment of regulations
Regulations may be repealed or amended by subsequent regulations. Unlawful regulations or those that violate higher-ranking law must be eliminated or declared void.
Regulation in European law
Meaning and effect
In Union law, a regulation refers to a specific legal form with direct applicability in the Member States (Art. 288 TFEU). Once in force, a European regulation has direct effect for and within all EU states, without needing to be transposed into national law (direct applicability).
Difference from a directive
In contrast to directives, which merely set requirements for a desired objective and leave implementation to the Member States, European regulations are directly valid and applicable in all Member States.
Distinction from other sources of law
Administrative instruction
Unlike administrative instructions, which are primarily binding for the administration itself (internal regulations), regulations are directly binding on citizens and businesses as well.
General order
The general order (according to § 35 VwVfG) pertains to an individual case and thus differs from the abstract, general regulation of a regulation.
Significance of regulations in legal practice
Regulations play a central role in the legal system for the rapid, flexible, and specific regulation of technical, economic, and social matters. By concretizing statutory requirements, they enable the administration to implement practical solutions, for example with technical standards, environmental specifications, or health protection rules.
Literature and further references
- Federal Ministry of Justice: Information on the enactment of legal regulations
- Basic Law for the Federal Republic of Germany, Art. 80
- TFEU (Treaty on the Functioning of the European Union), Art. 288
Conclusion
Regulations form an essential source of law in both German and European law. They concretize statutory provisions and provide an immediate legal basis for citizens, businesses, and the administration. Their legal design, the process of issuance, and oversight ensure the democratic legitimacy and legality of these legal norms within the state system.
Frequently asked questions
Who is authorized to issue a regulation in the legal sense?
In a legal context, state bodies are generally authorized to issue regulations. Primarily, this concerns the executive branch, such as the federal government or the respective state governments. The legal basis for issuing a regulation is an authorization granted by a formal law. This means that Parliament (the legislature), through a law, expressly determines that and under what conditions a specific authority or government body may make provisions by regulation. There must also be sufficient statutory clarity regarding the content, purpose, and scope of the regulatory authorization. Without such a clearly defined enabling provision, the issued regulation is unlawful and may be annulled by courts or administrative authorities.
What legal requirements must a regulation meet?
A regulation must meet various legal requirements to be effective and lawful. Among the most important are specificity and legality. The regulation may only be enacted within the scope and for the purpose determined by law (binding to the law). It must also be sufficiently specific, that is, clearly and comprehensibly drafted so that affected persons can recognize what rights and obligations arise for them. Formal requirements particularly concern the proper promulgation of the regulation, the correct procedure, and compliance with any participation rights (e.g., hearings of associations). Violations of these requirements result in the illegality and contestability of the regulation.
How can a regulation be legally reviewed?
Legally, a regulation may be reviewed by various instances. In Germany, judicial review by administrative courts is primarily provided for this purpose. Anyone who claims that their rights have been infringed by a regulation may proceed via judicial review proceedings or challenge a specific action based on the regulation. The Basic Law provides for abstract judicial review of federal regulations by the Federal Constitutional Court. In addition, specialized courts may review whether the regulation is formally and materially lawful as part of concrete judicial review. If the court finds that a regulation violates higher-ranking law, it is void or, at least, not applicable in the specific case.
What are the differences between a legal regulation and an administrative instruction?
Legal regulations and administrative instructions differ both in their legal nature and in their binding effect. A legal regulation is a subordinate norm enacted by an executive authority with external effect on the basis of statutory authorization. It binds both the administration and citizens directly. An administrative instruction, on the other hand, consists of internal rules within the administration and does not have immediate legal effects vis-à-vis citizens. It primarily serves the uniform interpretation and application of laws by authorities. While legal regulations can be reviewed and challenged in court, this generally does not directly apply to administrative instructions.
What is the validity and scope of a regulation?
The validity and scope of a regulation are determined by the provisions of the underlying law and the content of the regulation itself. Generally, a regulation has binding effect for all those falling within its personal and substantive scope of application. Its territorial scope may extend to the entire federal territory, a federal state, or a specific area, depending on which sovereign authority issues the regulation. Temporally, the regulation applies from the date specified in it, or, if no such date is specified, from its proper promulgation. Retroactive effect is only permissible under narrow legal requirements. If a regulation is ineffective, it remains ineffective or is removed from the legal system (“ex tunc” or “ex nunc”), depending on legal assessment.
What is the relationship between regulations and other legal norms?
Regulations, as subordinate norms, are positioned below formal laws but above administrative instructions and statutes in the German legal system, unless the latter are expressly endowed with corresponding regulatory authority by law. This means that a regulation may never violate higher-ranking law—especially the Basic Law, parliamentary acts, or EU law (the so-called hierarchy of norms or principle of ranking). In the event of a conflict, higher-ranking law always prevails, and the conflicting regulation is either ineffective or inapplicable. Within their scope of application, however, regulations are binding on courts and the administration as long as no ineffectiveness has been established.
How can a regulation be repealed or amended?
The repeal or amendment of a regulation is generally effected by the issuance of a new regulation that expressly repeals (repealing regulation) or amends specific provisions of the existing one. The legislature may also expressly revoke the enabling provision or entirely or partially repeal regulations by law. If the enabling statutory basis ceases to exist, the regulation based on it becomes automatically invalid. The procedure for amending a regulation follows the formal requirements that also apply to its enactment: there must again be a legal basis, the correct procedure, and proper publication. Amendments or repeals generally take effect from the time of publication unless otherwise provided for.
