THE DIVISION OF LEGISLATIVE POWERS

For a more realistic picture of the division of legislative powers between the federal and the Land governments, one must go to Section VII of the Basic Law, which contains fifteen articles dealing with legislation.¹²

The first of these, Article 70, paragraph 1, is related to Article 30 in providing that “the Länder have the right to pass legislation insofar as this Basic Law does not grant legislative authority to the federation.” A problem for many critics of German federalism is that the Basic Law does grant a significant amount of this authority in a number of articles.

Thus Article 70, paragraph 2, grants the federation two kinds of legislative powers: exclusive and concurrent (revised in 2006, as we will see below). A third source of federal legislative powers was found in Article 75 in the form of framework legislation (eliminated in 2006, however). European Union law is an important fourth source of legislation that affects both the federal and the Land levels. Areas that were left to the Land governments were local government law; culture, including schools as well as the visual or performing arts and electronic media; public safety, for example, the police; and some aspects of the civil service and health care.

The exclusive legislative powers of the federation are listed in Article 73. These are generally obvious responsibilities of the federal government, for example, foreign affairs and defense; national citizenship; currency, weights, and measures; customs and foreign trade; and other matters. The list is not complete, because other federal responsibilities can be found in other provisions of the Basic Law. For example, the authority to regulate political parties and political finance is found in Article 21. Articles 72 and 74 contain provisions concerning concurrent powers. These were subject to some changes after unification, and they became candidates for change again in 2006.

According to the Basic Law, any action the federal government takes in the area of concurrent legislation under Article 72 preempts any Land legislation covering the same subject, not just those provisions that may be in conflict, as in the United States (although federal pre-emption has occurred with increasing frequency in the United States). That is, there is no “dual authority” in Germany. Therefore, some legal scholars suggest that “precedence” legislation might be a better term than “concurrent” legislation. The federation has the right to pass concurrent legislation in order to secure “equivalent” living conditions (no longer “uniform” living conditions as before 1994)¹³ or to secure legal or economic unity in the country as a whole. “Equivalent” replaced “uniform” in 1994, in part to relieve pressures toward a more “unitary” federal state, which will be discussed below. Another change in 1994 was to permit the federation to pass concurrent legislation only when it was “essential” and not just because it perceived a “need” to do so. These changes were largely the result of pressure from the Länder that saw increasing federal encroachment in their territorial spheres of activity. On the other hand, the federation and the poorer Länder resisted too much change.

Article 74 contains a rather long list of areas in which the federation may pass legislation and, in fact, has done so. In theory, at least some of these areas could have remained with the Länder, but the pressures for “uniform” living conditions and the view that national regulations were needed have always been very powerful. The result is that the legislative competences the Länder do have pale in comparison to the concurrent powers of the federal government, not to speak of the exclusive federal powers. Some of this loss of legislative authority was even yielded voluntarily by the Länder in order to eliminate financially damaging competition: thus in 1971 the Länder agreed through the Bundesrat to grant the federation, in Article 74a, the concurrent power of regulating salaries and benefits of civil servants (Beamte), including the Land civil service (these competencies were returned to the Länder in 2006).

The third source of legislative authority for the federal government was, until 2006, framework legislation found in Article 75 of the Basic Law. Laws passed under Article 75 differed from exclusive and concurrent legislation in that they were directed at Land legislators for further legislative action. This purpose was to give the Land legislators the right to adapt the framework laws to local circumstances; however, complaints by some of the Länder of federal intrusiveness led to a constitutional change in 1994 stating that framework legislation may go into detail only in exceptional cases.