• The Attribution of Administrative Functions in the German Structure
  
  • The Länder as the Main Administrators
  • The Significance of the Bundesrat's Position
  • Local Government Autonomy

The Attribution of Administrative Functions in the German Structure

The Länder as the Main Administrators

The space devoted to the preceding section would not be merited if, in connection with the Bundesrat's position, it were not necessitated by a distinctive feature of the German system: the multi-faceted network of intergovernmental relations between the Federation and the Länder reflects the fact that the Länder have always been the main administrators not just of their own laws, but also of most federal and directly applicable European legislation.

This is all the more important since the bulk of legislation is nowadays enacted at the federal and the European level. The administrative role of the Länder is defined in Art. 83 of the Basic Law, which confers upon them both the right and the duty to ‘execute federal statutes as matters of their own concern in so far as this Basic Law does not otherwise provide or permit’. Arts. 84 and 85 of the Basic Law differentiate in this field between administrative functions to be performed by the Länder ‘as matters of their own concern’ (under general administrative rules requiring the Bundesrat's consent and subject to federal supervision relating to legal standards only), and other matters in which ‘the Länder execute federal statutes as agents of the Federation’ (subjecting them ‘to the instructions of the appropriate highest federal authorities’ and to federal supervision dealing also with the ‘appropriateness of execution’). Nonetheless, in the entire field of administrative functions, the Länder are clearly the predominant bodies, while federal administrative powers, defined in Arts. 87-90 of the Basic Law, are classed as exceptions to that rule. They only cover areas such as the foreign service, defence, the federal waterways and others which are conducted ‘as matters of direct federal administration with their own administrative substructures’. All of this explains the otherwise rather obscure provision in Art. 50 of the Basic Law that ‘the Länder ... participate through the Bundesrat in the ... administration of the Federation’.

The Significance of the Bundesrat's Position

While the attribution of administrative functions may sound to be a more or less technical matter, its significance within the German system derives from the implications which flow from it for the position of the Bundesrat in the passing of federal legislation: All federal statutes providing in the area of their own execution ‘for the establishment of the requisite authorities and the regulation of administrative procedures’ require the Bundesrat's consent, even if such provision is only contained in one single paragraph or section of the respective Federal Act. Mainly for this reason, approximately 55% of all federal legislation nowadays needs the consent of the Bundesrat. The same applies to delegated legislation of the Federal Government (ordinances) pursuant to such statutes and generally to all matters ‘that are executed by the Länder as agents of the Federation or as matters of their own concern’ (Art. 80 of the Basic Law). It also applies to federal legislation with administrative relevance based on European Directives (framework rules to be filled in by laws of the Member States of the European Union). With European competence constantly expanding into fields of federal relevance in Germany, the European dimension has naturally had an increasing impact not only on the field of administration, but also on that of legislative powers (as discussed below). The important observation at this stage is that alongside its core function of representing regional interests in federal legislation, the most outstanding function of the Bundesrat is to apply the administrative experience of the Länder to the shaping of federal law.

Local Government Autonomy

While considering the field of administration reference needs to be made to the role of local government autonomy in the German constitutional system. Since the beginning of the 19th century that autonomy - on both the town and county levels - has always been of considerable importance for German structures of government as a whole. Its status can even be compared with that of the federal principle due to the fact the Basic Law accords an institutional guarantee to that autonomy in Art. 28 of the Basic Law (despite the fact that the organisation and supervision of local government clearly and indisputably belongs to the legislative and organisational sphere of the Länder). Local government bodies, which carry out large parts of the administrative functions attributed to the Länder by federal legislation, thus enjoy the constitutionally protected status of an autonomous tier of government (which even entitles them to raise matters concerning that status before the Federal Constitutional Court). The functional area linking the Länder and local government most closely together is that of regional and town and country planning, where they possess substantial autonomy vis-à-vis the federal tier, thus balancing much of the legislative losses which the Länder (and with them local government) have suffered.