ADMINISTRATION OF FEDERAL LAWS
Section VIII of the Basic Law deals with the implementation of federal laws.14 The first article (Article 83) of this section states simply that “[t] he Länder implement federal legislation on their own responsibility so long as the Basic Law does not provide otherwise.” The language of this article shows its relationship to Articles 30 and 70 above in granting sweeping authority to the Länder unless the Basic Law provides otherwise.
As such, it is a reflection of the German concept of “dual federalism” or the more commonly used term “administrative” or “executive” federalism.The division of responsibilities is not one of strict separation, however; rather, it is a system of co-operation, interconnections, and interrelationships. The federation does, indeed, carry the greatest responsibility for legislation, but the Länder (or at least their executives) participate in the legislative process through the Bundesrat, the “Länder chamber.” The Länder are generally responsible for administration, but in carrying out federal laws, they may be subject to many federal instructions and restrictions that they can usually influence in the Bundesrat. Again, this system differs from the American concept of “dual federalism” or “dual sovereignty, ” according to which a duality exists between the federal government and its executive and legislative competences, on the one hand, and the states and their executive and legislative powers, on the other hand.
Even though the “state” (der Staat) at the Land level is an administrative state, there is considerable federal involvement in administration; indeed, Section VIII of the Basic Law provides three methods of administering federal law. The first is administration solely by federal officials, which takes place directly in state agencies (for example, in finance administration) or indirectly (for example, in social insurance agencies).
The federal government is also responsible for administration of the foreign service, federal finances, federal waterways and shipping, certain police functions, border control, constitutional protection, military forces, air transportation, and the Bundesbank.A second method is administration by the Länder of federal laws delegated to them for administration according to federal instructions. Nevertheless, it is still Land administration. The federal government pays the functional costs, but the Länder pay the administrative costs. This delegated administration occurs only if provided by the Basic Law or because of a constitutionally authorized federal law. For example, the Land administration of the federal autobahns and other federal long-distance highways is provided by Article 90 of the Basic Law. The delegation of federal laws to the Länder for administration increased as a result of the Finance Reforms of 1969, for example, through Article 104a, which states that when the federation pays 50 percent or more of the costs of a program, that program will be administered for the federation by the Länder.
The third and most common type of administration is carried out by the Länder themselves. The Länder and their local governments, to which the Länder send most of their federal and Land laws for execution, have the right to administer higher-level laws on their own responsibility. According to Article 84, if the Länder execute federal legislation, they establish the agencies and regulatory procedures. This is generally referred to as autonomous Land administration. However, a federal law, to which the Bundesrat has consented, may provide for federal involvement in the establishment of agencies or in administrative procedures. If the Länder administer federal laws on their own responsibility, they pay both the administrative and the functional costs, but in cases where the Länder pay more than 25 percent of the functional costs, consent of the Bundesrat is required.
There is broad opportunity for federal involvement in administrative matters, but it occurs only with the approval of the Bundesrat. This means that in the final analysis the Land governments (cabinets) control the extent to which the federation becomes involved in Land administration.In implementing federal laws, the Länder are supervised by federal authorities to ensure compliance and uniformity. However, whereas supervision in the case of delegated laws is both legal and functional, in the case of implementing federal laws on their own responsibility the Länder are under legal supervision only. If there is a conflict and no satisfactory resolution occurs, either side may take the case to the Bundesrat for a decision. If dissatisfied with this decision, either side can appeal to the Federal Constitutional Court.
As a general rule, German law does not permit a combination or mixture of federal and Land administration in a hierarchical relationship (Mischverwaltung), any more than it accepts dual legislative powers over the same subject. However, as already noted, there are forms of co-operation now generally referred to as Politikverflechtung, or interconnections and intermingling. This has always been the case when the Länder executives have participated in federal policy-making through the Bundesrat. It has also become more apparent in the co-operation that takes place under the category of “joint tasks” that are specified in the Basic Law in Articles 91a and 91b. For example, although Article 91a gave the federal government the right of co-decision with the Länder in the construction of university buildings, this provision was removed in 2006, while the rights of co-decision over improving regional economic structures and improving conditions in agricultural and coastal areas were left unchanged. Article 91b concerns joint planning in education (repealed in 2006) and co-operation in the promotion of scientific facilities and research.