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Last update: 01-09-2006
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Legal order - Germany

The main written sources of domestic law are the Constitution, legislation, statutory instruments and bye‑laws. In addition to this, there are unwritten sources of law, which are the general principles enshrined in international law, customary law and case law.

Because of the federal structure of the Federal Republic of Germany, these different sources of law duplicate each other to a certain extent both at Federal level [Bund] and at the level of the individual Länder. The relationship between these two legal spheres is governed by Article 31 of the Grundgesetz [GG – Basic Law], i.e. the Constitution at Federal level. In accordance with that Article, where Federal and Land law are in conflict with each other, Federal Law prevails. This principle applies irrespective of the hierarchical statuses of the conflicting legal rules of law so that, for example, a Federal statute will prevail over the Constitution of a Land.

Notwithstanding the general principle that Federal Law prevails, the respective hierarchical statuses of legal instruments always derive from their source, i.e. the status depends on the enacting body.

This means that the Basic Law (GG) is at the apex of Federal Law and therefore of the hierarchy of domestic rules of law because, as the Constitution of Germany, it is the instrument on which all the German national and legal systems depend and which can only be amended by a two-thirds majority of the members of the Bundestag (Parliament) and two thirds of the votes of the Bundesrat (legislative chamber of the Länder) (Article 79(2) GG). Certain key components of the Basic Law may not be amended at all (Article 79(3) GG). Each legal provision must be constitutional both in form and substance. Legislation, executive power and case law are particularly bound by fundamental human rights, which have a direct application in law (Article 1(3) GG). This principle of fundamental rights can be invoked by the persons affected before the Courts, ultimately by lodging a constitutional appeal before the Federal Constitutional Court.

The general rules of international law occupy the space between the Constitution and the laws. The Basic Law explicitly states that these are a component of Federal Law, that they take precedence over such laws and that they directly create rights and duties for residents of Federal territory (Article 25 GG). These general rules of international law with significance for individuals (i.e. not just rules relevant to the State) include, for example, the guarantee of an appropriate form of legal protection for foreigners or the specification principle, whereby criminal proceedings are subject to the terms of the extradition authorisation of the extraditing foreign state.

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Legislation ranks below the Constitution. The Bund’s powers to legislate are governed and enumerated by the Basic Law (particularly by Articles 73 – 75 GG). Laws are passed by the Bundestag in conjunction with the Bundesrat. Bills can be submitted by the Federal Government, the Bundesrat or from within the Bundestag (by a political group or 5% of the members). The Basic Law explicitly lays down the specific cases in which final approval of a law by the Bundestag requires the consent of the Bundesrat (currently about 60% of all laws). As for the remaining laws passed by the Bundestag, the Bundesrat may only lodge an objection, which the Bundestag may reject. Where there are differences of opinion between the Bundestag and the Bundesrat, a conciliation committee composed of members of both chambers (currently 16 from each) can be appointed. The task of the conciliation committee is to produce proposals for achieving unanimity though it cannot itself make decisions on behalf of the Bundestag and Bundesrat (for more on the legislative process, see Articles 76 to 78 GG)

Federal laws are promulgated by the Federal President – following countersignature by the responsible members of the Federal Government – and then published in the Federal Gazette. In default of any provision to the contrary regarding the effective date, such laws come into force on the 14th day after the date of issue of the Federal Gazette (Article 82 GG).

Consistency with the Constitution of any particular law can be tested by the regular courts as part of a specific case. However, the courts cannot themselves declare a law to be unconstitutional. Where a court’s ruling in a particular case derives from a law which it regards as unconstitutional, the court must then stay the proceedings and obtain a ruling from the Federal Constitutional Court (Article 100 GG). In such a way, the Federal Constitutional Court can determine categorically whether or not Parliament, as the democratically elected legislative body, has acted unconstitutionally.

Statutory instruments (Rechsverordnungen) rank below legislation. They are issued by the executive (Federal Government, Federal Ministers, Land Government and also where applicable by other administrative bodies) on the strength of a legal authority which has to be sufficiently defined in terms of its purport, purpose and scope. Because they rank lower than laws they must not contravene them (precedence of a law).

Substantive decisions with major significance for the persons affected cannot be made in the form of a statutory instrument but only within the law itself (legal reservation).

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Statutory instruments issued at Federal level require the approval of the Bundesrat if one of the associated conditions specified in the Basic Law is involved or if the legal authority makes this necessary (Article 80(1) and (2) GG).

Statutory instruments are promulgated by the issuing body. Statutory instruments issued at Federal level are usually published in one of the Official Federal Gazettes [Bundesgesetzblatt or Bundesanzeiger]. Statutory instruments published in the Bundesanzeiger are referenced for information purposes in the Bundesgesetzblatt giving the name of the publishing body and the effective date of the instrument (Article 82(1) GG in conjunction with Section 1 of the Statutory Instruments Publication Act).

Persons affected by such an instrument can challenge its legality through the courts – at least indirectly as part of an appeal against a specific ruling reached by an authority on the strength of the instrument and to an extent also directly in the case of instruments pertaining to law at Land level (Section 47 Code of Administrative Procedure).

Bye‑laws (Satzungen or Ordnungen) are legal provisions which are issued by a legal person constituted under public law as defined by the State (public corporation, institution or foundation). The main areas of use are in the administrations of municipalities and academic, professional and social security bodies (e.g. bye‑laws covering municipal charges for street cleaning and refuse collection or the of universities).

The power to issue bye‑laws is to an extent enshrined in the Constitution (especially in the context of local authority administration, Article 28(2) sentence 1 GG). Beyond that, such power derives from a legally enshrined authority similar to that related to statutory instruments. As distinct from the authority to issue instruments, the law does not (only) authorise the issuance of individual provisions with a predefined purport but rather it bestows a comprehensive authority to draft bye‑laws within the limits of the sphere of authority of the relevant autonomous administration (regulatory independence). Accordingly, the bye‑law is a legal provision which derives its authority from the State. However, the powers it covers are at independent administrative and not State level, though they must conform to the laws of the State. As to the purport of a byelaw, its authority is restricted to the particular business of the individual institution and only binds its members and persons subject to it.

Bye‑laws are created and approved by the governing (and democratically empowered) body of the empowered legal person. It often happens that the responsible supervisory body will need to approve it as a form of legal oversight to ensure that it can operate within the limits of the institution’s autonomous administration and complies with State laws. The particular State law regulates the promulgation and publication of the bye‑law.

Persons affected by a bye‑law can challenge its legality through the courts – indirectly as part of an appeal against a specific ruling reached by an authority on the strength of the bye‑law and to an extent also by way of legal proceedings for judicial review under Section 47 of the Code of Administrative Procedure.

As far the type and order of precedence of legal instruments are concerned, Law at Land level corresponds to Federal Law, so that the above remarks apply as appropriate. Only the Federal rules governing the status of the general provisions of international law have no equivalence at Land level.

The maintenance of foreign relations and therefore also the power to conclude treaties under international law are solely the province of the Federal authorities. International treaties are therefore concluded by the Federal Government.

International treaties which regulate the political relations of the Bund or which relate to subjects covered by Federal legislation require the approval or involvement of the body responsible for Federal legislation in the form of a Federal law. The general rules provide that the Bundesrat must be involved in the legislative process, i.e. its approval is necessary in some shape or form.

As for Federal treaties relating to matters other than those named above no Bundestag law is necessary – instead they are adopted by virtue of the means at the disposal of the executive (statutory instruments, administrative provisions, administrative acts).

Provided they have exclusive legislative authority, the Länder, too, may, with the approval of the Federal Government, conclude treaties with foreign States. If a treaty has any bearing on aspects of Land legislation, approval by the Land Parliament, depending on the Constitution of the particular Land, brings about its adoption into Land law. The Länder can also conclude treaties in areas in which the Land Governments are empowered to issue statutory instruments.

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Last update: 01-09-2006

 
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