Definition and Legal Classification of the Power to Issue Statutes (Statutory Authority)
Die Statutory authority or, used synonymously, Power to issue statutes refers to the legal authority of certain legal entities, in particular legal persons under public law, to enact binding and generally applicable regulations in the form of statutes. This authority forms a central element of self-administration and autonomy for corporations and institutions under public law, and is a significant instrument for shaping and specifying legal requirements within the respective legal framework.
Nature and Significance of the Statutory Authority
The statutory authority enables the entity empowered to issue statutes to create its own legal norms within the limits set by law, which are binding for members or affiliates of the corporation. Statutes usually have the status of subordinate norms, that is, they rank below laws in the hierarchy of norms, but nonetheless have direct effect within their scope of application.
Legal Basis for the Statutory Authority
The statutory authority is not a general right but always derives from an express legal basis (the so-called legislative reservation requirement). For municipalities and other self-governing bodies, statutory authority is conferred, for example, by the municipal codes of the federal states (§ 24 GO NRW, Art. 28 GG). Other bodies (such as universities, chambers, social insurance carriers) also obtain their power to issue statutes through specific laws.
Scope and Limits of the Statutory Authority
Requirements for the Power to Issue Statutes
The exercise of statutory authority requires that
- there is an explicit statutory empowerment to enact statutes,
- the material and personal scope of the statute is determined by law,
- the content of the statutes is consistent with higher-ranking law, particularly the constitution and statutory law.
Limits of the Statutory Authority
The most important limitation of statutory authority is the obligation to comply with higher-ranking law. Statutes may not change the content of laws or unduly restrict existing legal positions. Other typical limits include the requirement for specificity, the prohibition of retroactivity, the principle of equal treatment, and respect for fundamental rights.
Legal Effect and Review of Statutes
Statutes enacted within their scope of application have the legal quality of norms and can serve as the basis for administrative acts, fees, contributions, or other sovereign measures. Their legality may be reviewed in court proceedings. If they violate higher-ranking law, they are void or invalid.
Statutory Authority in Different Areas of Public Law
Statutory Authority in Municipal Self-Government
Municipalities, as the basic form of self-governing bodies, have original statutory authority. For example, they can enact statutes on public order, fees and charges (fee statutes), conditions of use (e.g., for facilities such as swimming pools), or land use plans (planning law). The constitutional basis is Art. 28(2) GG.
Statutory Authority of Professional Bodies
Chambers (such as Chambers of Industry and Commerce, Bar Associations, Medical Associations) have a statutory authority assigned for their own scope of activity, for example, to regulate election rules, professional duties, or membership dues.
Universities and Higher Education Institutions
Colleges and universities are also granted statutory authority by their respective state higher education laws. This generally covers study and examination regulations, enrollment regulations, and departmental regulations.
Social Insurance Bodies
In the area of self-administration of social insurance carriers, statutory authority allows independent regulation of internal matters (e.g., contribution rate, surcharges).
Special Features and Distinctions
Difference Between Statute – Legal Ordinance – Administrative Regulation
In contrast to the legal ordinance, which is enacted by executive bodies on the basis of a specific authorization with external effect, the statute is the autonomous regulatory instrument of the self-governing body. An administrative regulation by contrast, has no immediate external effect but regulates internal administrative conduct.
Private Statutory Authority
The concept of statutes also exists in private law, such as in association or corporate law; however, there it merely refers to internal organizational rules and must not be confused with the sovereign statutory authority in public law.
Legal Effects and Enforcement of Statutes
Normative and Binding Effect
Statutes, upon entering into force, have a special normative effect and are binding for the members of the given body. They form the basis for administrative acts, contributions, and measures, and violations can result in administrative as well as criminal or regulatory penalties.
Review and Legal Remedies
The legality of a statute can be reviewed in a judicial norm control procedure before the administrative courts (e.g., pursuant to § 47 VwGO). If illegality is established, the statute is void or annulled.
Summary
The statutory authority is a central element of the autonomy of public-law bodies to regulate their own matters normatively. It is always based on legal authorization and is strictly bound by higher-ranking law. Norms created by statute have a directly binding effect within their area of applicability and play a vital role in the system of lawful self-administration. The review and control of statutory authority is ensured by judicial proceedings, thus guaranteeing the rule of law even in autonomous norm-setting.
Frequently Asked Questions
Which legal sources determine the limits of statutory authority?
The limits of statutory authority are essentially defined by higher-ranking law, in particular the Basic Law, ordinary federal laws, and state laws. For legal persons under public law, such as municipalities, statutory powers are mainly derived from the respective state law, in particular the municipal codes of the federal states. These specify in which matters and to what extent the power to issue statutes exists. Statutory authority is always limited where it violates higher-ranking legal norms or fundamental rights. Statutes must in particular not contain provisions that unlawfully infringe the protected sphere of fundamental rights. The so-called prohibition of retroactivity and the requirement of specificity must also be observed as legal restrictions.
Who is typically authorized to exercise the statutory authority?
Statutory authority is typically exercised by public-law corporations. These may be territorial bodies such as municipalities, districts, cities, or counties, as well as other legal persons under public law such as chambers (e.g., chambers of industry and commerce or medical boards). Many laws explicitly regulate which institutions are authorized to enact statutes. The power to issue statutes may not be transferred to private parties and is generally reserved for the organs of the respective corporation, for example, the municipal council in municipalities. The exercise of statutory authority often involves a formal procedure, which may be further regulated at the state or statutory level.
What formal requirements must be observed in the exercise of statutory authority?
Various formal requirements must be strictly observed when exercising the power to issue statutes. These include, first of all, the existence of an express legal empowerment, usually found in the relevant specialist law. The statutory procedure itself generally requires proper consultation and resolution by the competent body. The content of the statute must be specific and may not violate the prohibition of arbitrariness or higher-ranking law. In addition, formal requirements such as the publication of the statute, as provided for in state law or local statutes, must be observed. The statute usually enters into force only upon its official publication.
Can legal remedies be sought against the exercise of statutory authority?
Legal remedies are available against the exercise of statutory authority, particularly through administrative judicial review. Since statutes are to be considered subordinate norms, their compatibility with higher-ranking law can be examined. This can be done by means of a normative control action before the Higher Administrative Court (or Administrative Court). In individual cases, a person affected may also have the statute reviewed by means of so-called incidental control within the context of a specific legal dispute. The possibility of judicial review is an essential corrective against abuse or overreach of statutory authority.
What are the differences between statutory authority and ordinance empowerment?
Although both instruments—statutory authority and ordinance empowerment—serve the purpose of norm-setting, there are significant differences between them. Statutory authority is the right of public-law legal entities to enact statutes for regulating their own affairs. Ordinance empowerment, on the other hand, generally permits governmental administrative authorities, based on statutory authorization, to enact generally binding legal norms (ordinances) for specific subject matters. In the hierarchy, a statute is generally equal to a legal ordinance, but while an ordinance is usually issued by the state, a statute is initiated by autonomous (self-governing) bodies.
What are the consequences of exceeding statutory authority?
If statutory authority is exceeded, the affected statute or the relevant part of the statute is unlawful. Such unlawfulness may result in the statute being void or invalid. For example, if a statute is enacted without sufficient statutory empowerment or in violation of higher-ranking law, it can be annulled by the administrative court in the course of a norm control procedure. In certain cases, such as when the publication procedure is not properly followed, the invalidity of the entire statute may arise. The review, correction, and, if necessary, annulment of erroneous statutes is therefore of particular importance to safeguard the rule of law.
Can statutory authority be restricted or revoked by law?
Statutory authority is always tied to statutory empowerment and can therefore be restricted, shaped, or even completely withdrawn by ordinary law. The legislator may, for example, limit the material scope of the statutory authority or enact provisions that remove certain matters from autonomous regulation by municipalities or other corporations. Amendments to the legal basis have direct effects on the scope and existence of statutory competence. In individual cases, the legislature may even repeal an existing regulatory competence retroactively, although in this regard the prohibition of retroactivity and principles of legitimate expectations must be observed.
