• The Distribution of Legislative Powers
  
  • Legislative Losses of the Länder
  • Concurrent and Framework Powers: Mechanisms for Restraining the Federal Level
  • European Legislation and the Länder

The Distribution of Legislative Powers

Legislative Losses of the Länder

Before outlining the different categories of federal competence in the field of legislation, it needs to be re-emphasised that the bulk of legislation is today enacted at the federal level. [ On the process of legislative centralisation, see Hartmut Klatt, ‘Centralizing Trends in Western German Federalism, 1949-89’, in C. Jeffery (ed), Recasting German Federalism , op.cit.] This might seem paradoxical in the face of Art. 30 of the Basic Law, which states in general terms that ‘except as otherwise provided or permitted by this Basic Law, the exercise of government powers and the discharge of governmental functions shall be incumbent on the Länder’. As has been shown this is still true in the administrative area. The paradox between the reality and the legal situation in the field of legislation is further sharpened by Art. 70 of the Basic Law, which rules that ‘the Länder shall have the right to legislate in so far as this Basic Law does not confer legislative power on the Federation’ and thus defines the Länder as the location of residual legislative power. However in the practical process of filling the statute books, this constitutional stipulation has been widely eroded in the legislative sphere by the impact of both the broadening of the criteria and the expansion of the catalogues of exclusive, concurrent and framework legislative powers of the federation in Arts. 70-75 of the Basic Law. This has had the effect of leaving a fairly small, though by no means unimportant, amount of legislative powers for the Länder (specifically in the areas of their own constitutions and of local government, policing, and cultural affairs including media legislation).

Concurrent and Framework Powers: Mechanisms for Restraining the Federal Level

Among the categories of legislative powers of the federation, those of its concurrent and framework powers have been extended by numerous amendments to the Constitution from 1949 onwards. Concurrent powers are those under which ‘the Länder shall have power to legislate as long and to the extent that the Federation has not exercised its right to legislate by Federal Act’ (Art. 72 of the Basic Law). Framework powers enable the federation to limit the exercise of exclusive Länder legislative functions in certain fields and to a certain extent (Art. 75). While the fields listed as concurrent and framework powers have been widened, the so-called ‘clause of need’ justifying federal concurrent and framework legislation was also substantially expanded by the jurisdiction of the Federal Constitutional Court prior to the 1994 constitutional reform. The Court's central ruling was that the evaluation of such need was essentially a political question and thus not subject to the adjudication of the Court except in instances of gross violation of the discretionary powers thus vested in the federal legislature. [ BVerfGe 2, 224 in 1954 and numerous later decisions. See further in Philip Blair & Peter Cullen, ‘Federalism, Legalism and Political Reality: The Record of the Federal Constitutional Court’, in C. Jeffery (ed), Recasting German Federalism , op.cit.] The Constitutional Reform Act of 27 October 1994 has now changed the ‘clause of need’ for the Federation into a ‘clause of necessity’ in favour of the Länder, while also attempting to force the Constitutional Court into abandoning its ‘political question theory’ by giving it an explicit power of jurisdiction in disputes over the new ‘clause of necessity’ (in Art. 93/1/2a). [ On the potential effects of (and remaining deficiencies left by) these changes, see further in Uwe Leonardy, ‘German Federalism Towards 2000: To Be Reformed of Deformed?’, in C. Jeffery (ed), Recasting German Federalism , op.cit.]

European Legislation and the Länder

‘Intrusion’ by European institutions into the legislative competences of the Länder has become a major challenge, in particular over the last decade. In its concerted efforts to meet this challenge, the Bundesrat has successfully pressed for a dam to be built to protect against the powers of the Federal Government to consent to such intrusions in its capacity as a member of the European Council of Ministers, which is still the main legislator of the European Union. Under the rules of the new Art. 23 of the Basic Law, [ See further in Rudolf Hrbek, ‘The Effects of EU Integration on German Federalism’, in C. Jeffery (ed), Recasting German Federalism , op.cit.] the actions of the Federal Government are now subject to the ‘decisive opinion’ of the Bundesrat, whenever and inasmuch as European legislation impinges on exclusive competences of the Länder. Moreover, Article 23 (together with a corresponding amendment to Art. 146 of the EEC-Treaty in the Maastricht Treaty) also ensures that in such matters the Länder now have the right to be represented at the table of the Council of Ministers itself by a nominee of the Bundesrat instead of a member of the Federal Cabinet.