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Allocation and Determination of Responsibilities, Powers and Competence in European Countries

Project Report 2007 21 Pages

Law - European and International Law, Intellectual Properties

Excerpt

Table of Contents:

A. Introduction

B. General Explanations

C. Allocation and Determination of Responsibilities, Powers and Competence in the Federal
Republic of Germany
I. The Federalistic Structure of the German Political System and its Characteristics
1. Cooperative Federalism
2. Political Integration
II. The Responsibilities, Powers and Competence of the Federation and the Federal States
1. Legislation of the Federation and the Federal States
a) Exclusive Legislation
b) Concurrent Legislation
aa) Art. 72 section 1 GG
bb) Art. 72 section 2 GG
cc) Art. 72 section 3 GG
2. Executive Authorities of the Federation and the Federal States
a) Executive Authorities on Federal Level
b) Executive Authorities on Federal State Level
3. Judicature
a) Judicature on the Federal Level
aa) Federal Courts
bb) The Federal Constitutional Court
b) Judicature on the Federal State Level
III. The Responsibilities, Powers and Competence of Municipal Authorities
1. Duties and Responsibilities of Municipal Authorities
a) Tasks within the Own Sphere of Influence
aa) Own Tasks of Municipalities
(1) Optional Tasks
(2) Compulsory Tasks
bb) Own Tasks of Rural Districts, Circuits and Cities which do not belong to a Rural District
b) Tasks within the Devolved Sphere of Influence
aa) Devolved Tasks of Municipalities
bb) Devolved Tasks of County Seats and Cities which do not belong to a Rural District
2. Forms of Administrative Action of Municipal Authorities
a) Acceptilation of Legal Norms
aa) Bylaws
bb) Ordinances
cc) Internal Administrative Legal Rules
b) Acceptilation of Administrative Acts

D. Allocation and Determination of Responsibilities, Powers and Competence in the Austrian Republic
I. The Political System of the Austrian Republic
II. The Responsibilities, Powers and Competence of the Federation
1. Legislation
2. Executive
3. Judiciary
III. The Responsibilities, Powers and Competence of the Federal States
1. Legislation
2. Executive
IV. The Responsibilities, Powers and Competence of the Districts
V. The Responsibilities, Powers and Competence of Municipal Authorities
1. Own Sphere of Influence
2. Devolved Sphere of Influence

E. Allocation and Determination of Responsibilities, Powers and Competence in Switzerland
I. Switzerland: A Nation of Will
II. Federalism in Switzerland
III. The Function of Municipalities in Switzerland

Literature:

- Becker, Ulrich, Heckmann, Dirk, Kempen, Bernhard, Manssen, Gerrit, Öffentliches Recht in Bayern, publishing company: C. H. Beck, 3rd edition, 2005.

- Degenhart, Christoph, Staatsrecht, Staatsorganisationsrecht, publishing company: C. F. Müller, 18th edition, 2002.

- Münch, Ursula, Meerwaldt, Kerstin, Charakteristika des Föderalismus, Informationen zur politischen Bildung (number 275), publishing company: Bundeszentrale für politische Bildung.

- Ipsen, Jörn, Die Kompetenzverteilung zwischen Bund und Ländern nach der Föderalismusnovelle, published in: Neue Juristische Wochenschrift (NJW), number 39, 2006, p. 2801 et seqq.

Abbreviations and Acronyms:

illustration not visible in this excerpt

A. Introduction

Responsibilities, powers and competences of several institutions of a State obviously depend upon the political structure of the respective State. This elaboration describes three different States which in the broadest sense are based upon the same principle, but nevertheless arrive at different specifications.

B. General Explanations

With regard to the course of this elaboration, it is useful to explain the principle of Federalism since it applies to all countries discussed within this composition.

Federalism generally describes a specific principle of organising a State. It can be defined as follows: “Federalism is the theory or advocacy of federal political orders, where final authority is divided between sub-units and a centre Unlike a unitary state, sovereignty is constitutionally split between at least two territorial levels so that units at each level have final authority and can act independently of the others in some area. Citizens thus have political obligations to two authorities. The allocation of authority between the sub-unit and centre may vary, typically the centre has powers regarding defence and foreign policy, but sub-units may also have international roles. The sub-units may also participate in central decision-making bodies.”[1]

C. Allocation and Determination of Responsibilities, Powers and Competence in the Federal

Republic of Germany

In order to discuss the allocation and determination of responsibilities, powers and competence in the Federal Republic of Germany, one has to set out the structure of the German political system first.

I. The Federalistic Structure of the German Political System and its Characteristics

The Federal Republic of Germany consists of smaller autonomous units, which can execute own governmental tasks themselves. These units, which are called Federal States (“Bundesländer”), are combined to a superordinate ensemble, the Federation (“der Bund”). Both political levels are responsible for particular constitutionally predefined tasks.[2]

This federalistic structure and organisation already results from the preamble of the Grundgesetz (Basic Law – Constitution of the Federal Republic of Germany, in the following GG) which expresses that the Federal Republic of Germany consists of several Member States. The preamble says:”[…] The Germans in the Federal States Baden-Wuerttemberg, Bavaria, Berlin, Bremen, Hamburg, Hesse, Mecklenburg-Western Pomerania, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein, Thuringia have in self-determination reached unity and freedom in Germany […]” Moreover, Art. 20 section 1 GG explicitly constitutes that the Federal Republic of Germany is a Federal State. Its irreversibility is manifested in Art. 79 Section 3 GG.[3]

Besides all diversity there is always a certain degree of uniformity, as governmental bodies administrate direct sovereignty to citizens of the particular States.[4] For, according to Art. 28 section 1 GG, the constitutional order of the Federal States must among other things comply with the principle of democracy.

For identification of the political system in the Federal Republic of Germany mostly two terms, which characterise the development trends of the federal system best, are consulted. These terms are: Cooperative Federalism (“kooperativer Föderalismus”) and Political Integration (“Politikverflechtung”).[5]

1. Cooperative Federalism

The concept of Cooperative Federalism describes the case that original autonomous decisional unities work out certain tasks together. These tasks require a consistent and balanced cooperation of all levels and responsible bodies of the public administration. Coordination and concurrence of all participants (Federation, Federal States, and Municipalities) result in interconnection of these unities.[6] Correspondingly, the already existing form of cooperation between Federation and Federal State and the Federal States among one another has been intensified even more.[7]

Within this cooperation of the different governmental actors a network of intersecting competences and models of coordination and agreements, as well as formal and informal competences of co-determination, has emerged. This network is called political integration.[8]

2. Political Integration

Political integration circumscribes the horizontal as well as the vertical interlocking of the numerous organisational levels and levels of decision making in a Federal State. It is a reaction to the fact that problems of different governmental and social actors cannot be regarded or answered for itself.[9]

II. The Responsibilities, Powers and Competence of the Federation and the Federal States

The distribution of the authority of the State is carried out by the system of the Grundgesetz. In the field of legislation the Federation has superiority, whereas the superiority of the administrative office rests with the Federal States.[10] However, the Executives of the Federal States have a great plenitude of power, as they are able to participate in the federal legislation and administration by means of the Federal Council of Germany (“Bundesrat”). That is to say, even though the Federal Council is a supplemental legislative institution of the Federation, it consists of representatives of the Executive of the Federal States. As a consequence, it breaks through the principle of the strict separation of powers.

1. Legislation of the Federal Government and the Federal States

The distribution of the legislative competences between the Federation and the Federal States basically results from the provisions of Art. 70 et seqq. GG. According to Art. 70 section 1 GG, the Federal States have the right to enact legislation (“Gesetzgebungskompetenz”), unless the Grundgesetz has not delegated this right to the Federation – which, in fact, it does to a rather big extent.[11] Notwithstanding, within the scope of the federalism reform (“Föderalismusreform”) which was passed in 2006 an extensive amendment of the German Constitution took place. The federalism reform in particular readjusted the relationship between the Federation and the Federal States in terms of legislation.

a) Exclusive Legislation

Provisions about exclusive legislation (“ausschließliche Gesetzgebung”) of the Federation are contained in Art.71 and Art.73 GG.

As per Art. 71 GG, exclusive legislation means that the Federation is responsible for a certain subject matter.[12] The Federation is therefore readily authorised to enact legislation in this subject matter, whereas the Federal States are excluded thereof. But according to Art.71 sentence 2 GG the Federation can delegate its right to enact legislation to the Federal States. However, this enabling power has not become practically relevant so far.[13]

Art. 73 GG specifies the particular competences of the Federation including foreign affairs, defence, protection of the civil population, citizenship, air traffic, postal system, telecommunication and intellectual property rights.

b) Concurrent Legislation

Concurrent legislation (“konkurrierende Gesetzgebung”) means that the Federation and the Federal States are side by side - that is to say “competing” – responsible for a particular subject matter. The relevant provisions are Art. 72 and Art. 74 GG. In the range of concurrent legislation of the Federation the Federal States are only entitled to legislative actions as long and as far as the Federation has not made use of its right to enact legislation by issuing a law, Art. 72 section 1 GG. The subject matters of concurrent legislation are mainly enumerated in Art. 74 GG. These are for example civil law, public welfare, nature protection or road traffic. Concurrent legislation is subject to three cases which are regulated in Art.72 GG.

aa) Art. 72 section 1 GG

Basically, the Federation can act without the need for other requirements to be fulfilled, Art. 72 section 1 GG.

bb) Art. 72 section 2 GG

In certain areas the Federation has the right to enact legislation, but only if and to the extent to which the establishing of equal living conditions in the Federal Territory or the protection of the unity of law or economy demands a federal regulation in the interest of the entire State, Art. 72 section 2 GG. The subject matters which are affected thereof are Art. 74 section 1 no. 4[14], 7[15], 11[16], 13[17], 15[18], 19a[19], 20[20], 22[21], 25[22] and 26[23] GG.

cc) Art. 72 section 3 GG

In a third range the Federation has the right to enact legislation, but the Federal States have a right to differ (“Abweichungskompetenz”), Art. 72 section 3 GG. They can make divergent arrangements for certain areas. These are among others hunting, town and country planning, water supply and university degrees. The result of the right to differ is that, to a greater extent as hitherto, federal law is only in force in particular fields of reference.

2. Executive Authorities of the Federation and the Federal States

The typical task of the Executive is the implementation of statutes.[24]

a) Executive Authorities on Federal Level

Executive authorities on federal level are among others the Federal Government (“Bundesregierung”) consisting of the Federal Chancellor (“Bundeskanzler”) and the Federal Ministers (“Bundesminister”), Federal State Authorities (“Bundesbehörden”) and their civil servants, the Federal Police (“Bundespolizei”), the Federal Office for the Protection of the Constitution (“Bundesamt für Verfassungsschutz”), the German armed forces (“Bundeswehr”) and the Federal Department of Foreign Affairs (“Auswärtiges Amt”).

b) Executive Authorities on Federal State Level

Every Federal State has its own Federal State Government (“Landesregierung”) with its Head of Government who is always elected by the Parliament of the respective Federal State (“Landesparlament”).

Art. 83 GG provides that the Federal States implement federal laws as their own matter, as long as the Grundgesetz does not determine or permit otherwise. If the Federal States execute federal laws as their own issue, they regulate the establishment of the institutions as well as the administrative procedure themselves, Art. 84 section 1, sentence 1 GG. That is to say, the right to organise (“Organisationsrecht”) and the right of administrative procedures (“Verwaltungsverfahrensrecht”) remain tasks of the Federal States.[25] According to Art. 84 section 1, sentence 2 GG, there is a provision (“Vorbehalt”) in favour of federal laws that can determine otherwise. However, the Federal States are entitled to diverge from this rule.[26]

In case the Federal States implement federal laws on behalf of the Federation, the establishment of the institutions rests with the Federal States insofar as federal laws with affirmation of the Federal States do not determine otherwise, Art. 85 section 1, sentence 1 GG.

3. Judicature

As a matter of principle, courts do not act of their own volition. They must be appealed for adjudicating a case. Their decisions are based upon laws. There is an electoral committee (“Richterwahlausschuss”) that appoints the federal judges (“Bundesrichter”). That is to say, they are not bound by instructions.

a) Judicature on the Federal Level

The courts on the federal level have different functions.

aa) Federal Courts

On the federal level federal courts (“Bundesgerichte”) have the task to harmonise the jurisdiction of the different Federal States. For the system of ordinary courts the Federal Court of Justice (“Bundesgerichtshof”) is the highest appellate court. As appellate courts the federal courts normally only deal with the procedure and the legal appraisal of the facts of the case which were ascertained by the courts of the Federal States.

bb) The Federal Constitutional Court

All actions of the German State are bound to the Grundgesetz. The Federal Constitutional Court (“Bundesverfassungsgericht”) watches over the compliance with this basic principle. Its function is the protection of the Constitution, which must be distinguished between adjudicating conflicts of constitutional bodies themselves and protection of the citizen in his constitutional rights.[27]

The first area of activity comprises disputes between organs of State (“Organstreitverfahren”), abstract judicial review (“abstrakte Normenkontrolle”[28] ) and clashes at the rate of the Federation and the Federal States on constitutional level (“Bund-Länder-Streit”).

The second area of activity includes above all the protection of fundamental rights in the procedure of a constitutional complaint (“Verfassungsbeschwerde”), but also the concrete judicial review (“konkrete Normenkontrolle”[29] ).

b) Judicature on the Federal State Level

Insofar that no courts on the federal level are responsible, jurisdiction is, according to Art. 92 GG, administrated by the courts of the Federal States. The courts of the Federal States adjudicate the predominant percentage of the judicature at last instance. Except for one Federal State, every Federal State has its own Constitutional Court (“Landesverfassungsgericht”).

III. The Responsibilities, Powers and Competence of Municipal Authorities

Communes have to execute a bunch of different tasks.

1. Duties and Responsibilities of Municipal Authorities

For a systematical conception of these tasks, one has to differentiate between tasks within the own sphere of influence of (“Aufgaben des eigenen Wirkungskreises”) and tasks within the devolved sphere of influence of (“Aufgaben des übertragenen Wirkungskreises”).

a) Tasks within the Own Sphere of Influence

The own tasks are tasks of the local community (“der örtlichen Gemeinschaft”) for Municipalities and, as the case may be, tasks of the supra local community (“der überörtlichen Gemeinschaft”) for Rural Districts (“Landkreis”) and Circuits (“Bezirk”).[30]

aa) Own Tasks of Municipalities

On communal level they are not completely legally regulated. But even without particular legal foundation the responsibility of Municipalities results from the guarantee of local self-administration (Art. 28 section 2 sentence 1 GG).[31]

The speciality of all own tasks is that the Communes act self dependent by executing them, Art. 7 section 2 Gemeindeordnung (Local Government Code of the Free State of Bavaria, in the following GO)[32]. Accordingly, governmental supervision is limited to a scrutiny of the lawfulness of the action (“Rechtsaufsicht”).[33]

[...]


[1] Stanford Encyclopaedia of Philosophy, available at http://plato.stanford.edu/entries/federalism/.

[2] Cp. Degenhart, Staatsrecht, Staatsorganisationsrecht, C. F. Müller, 18th edition, 2002, p. 43.

[3] Cp. Degenhart, Staatsrecht, Staatsorganisationsrecht, C. F. Müller, 18th edition, 2002, p. 46.

[4] Münch, Meerwaldt, Charakteristika des Föderalismus, Informationen zur politischen Bildung (Heft 275), Bundeszentrale für politische Bildung

(available at: http://www.bpb.de/publikationen/PIQHGQ,0,Charakteristika_des_F%F6deralismus.html).

[5] Münch, Meerwaldt, Charakteristika des Föderalismus, Informationen zur politischen Bildung (Heft 275), Bundeszentrale für politische Bildung, (available at:

http://www.bpb.de/publikationen/T00DMQ,0,0,Politikverflechtung_im_kooperativen_F%F6deralismus.html).

[6] Münch, Meerwaldt, Charakteristika des Föderalismus, Informationen zur politischen Bildung (Heft 275), Bundeszentrale für politische Bildung

(available at: http://www.bpb.de/publikationen/PIQHGQ,0,Charakteristika_des_F%F6deralismus.html).

[7] Münch, Meerwaldt, Charakteristika des Föderalismus, Informationen zur politischen Bildung (Heft 275), Bundeszentrale für politische Bildung, (available at:

http://www.bpb.de/publikationen/T00DMQ,0,0,Politikverflechtung_im_kooperativen_F%F6deralismus.html).

[8] Münch, Meerwaldt, Charakteristika des Föderalismus, Informationen zur politischen Bildung (Heft 275), Bundeszentrale für politische Bildung, (available at:

http://www.bpb.de/publikationen/T00DMQ,0,0,Politikverflechtung_im_kooperativen_F%F6deralismus.html).

[9] Münch, Meerwaldt, Charakteristika des Föderalismus, Informationen zur politischen Bildung (Heft 275), Bundeszentrale für politische Bildung, (available at:

http://www.bpb.de/publikationen/T00DMQ,0,0,Politikverflechtung_im_kooperativen_F%F6deralismus.html).

[10] Degenhart, Staatsrecht, Staatsorganisationsrecht, C. F. Müller, 18th edition, 2002, p. 48.

[11] Degenhart, Staatsrecht, Staatsorganisationsrecht, C. F. Müller, 18th edition, 2002, p. 51.

[12] Degenhart, Staatsrecht, Staatsorganisationsrecht, C. F. Müller, 18th edition, 2002, p. 51.

[13] Degenhart, Staatsrecht, Staatsorganisationsrecht, C. F. Müller, 18th edition, 2002, p. 57.

[14] Art. 74 section 1 no. 4 GG, the right of residence and right of establishment for foreign nationals.

[15] Art. 74 section 1 no. 7 GG, public welfare.

[16] Art. 74 section 1 no. 11 GG, the law concerning economy without the right of shop closing time, restaurants, amusement arcades, display of persons, trade shows, expositions and markets.

[17] Art. 74 section 1 no. 13 GG, regulation of education allowance and sponsorship of scientific research.

[18] Art. 74 section 1 no. 15 GG, conveyance of property, natural resources and capital goods in public ownership or other moulds of social economy.

[19] Art. 74 section 1 no. 19a GG, the economic assurance of hospitals and the regulation of rates in hospitals.

[20] Art. 74 section 1 no. 20 GG, the law concerning groceries, luxury articles, articles of daily use, animal feed as well as protection of the use of agricultural and silvicultural seeds, protection of plants against illness and varmints and animal protection.

[21] Art. 74 section 1 no. 22 GG, road traffic, motoring, building and maintaining of rural roads (“Landstraßen”) for long-distance traffic as well as collection and delegation of charges or compensation for the use of public roads by vehicles.

[22] Art. 74 section 1 no. 25 GG, liability of public authorities.

[23] Art. 74 section 1 no. 26 GG, the medical supported generation of human life, examination and artificial change of genetic information as well as regulations concerning transplantations of organs, tissues and cells.

[24] Degenhart, Staatsrecht, Staatsorganisationsrecht, C. F. Müller, 18th edition, 2002, p. 92.

[25] Ipsen, Die Kompetenzverteilung zwischen Bund und Ländern nach der Föderalismusnovelle, (NJW), number 39, 2006, p. 2805.

[26] Ipsen, Die Kompetenzverteilung zwischen Bund und Ländern nach der Föderalismusnovelle, (NJW), number 39, 2006, p. 2805.

[27] Degenhart, Staatsrecht, Staatsorganisationsrecht, C. F. Müller, 18th edition, 2002, p. 236.

[28] Abstract judicial review means the constitutional control of the law-maker on behalf of other constitutional bodies.

[29] Concrete judicial review means to scrutinise whether a statute, which is relevant to the issue in a lawsuit, complies with the Constitution.

[30] Becker/Heckmann/Kempen/Manssen, Öffentliches Recht in Bayern, 3rd edition, 2005, p. 164.

[31] Becker/Heckmann/Kempen/Manssen, Öffentliches Recht in Bayern, 3rd edition, 2005, p. 164.

[32] There are different Local Government Codes in the particular Federal States. In the present case it is only referred to the Local Government Code of the Free State of Bavaria.

[33] Becker/Heckmann/Kempen/Manssen, Öffentliches Recht in Bayern, 3rd edition, 2005, p. 164 et seq.

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Pages
21
Year
2007
ISBN (eBook)
9783640881079
ISBN (Book)
9783640881222
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Language
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allocation determination responsibilities powers competence european countries

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Title: Allocation and Determination of Responsibilities, Powers and Competence in European Countries