Die Gesetzesbindung der Verwaltung

Abstract

The German Constitution (‘Basic Law’) provides that the executive is bound by law. Two imperatives follow from this basic principle: First, the executive must be empowered to act by the law (Vorbehalt des Gesetzes), and second, it must obey the law (Vorbehalt des Gesetzes). The Constitution also contains fundamental national objectives (Staatszielbestimmungen). In the light of such objectives, the basic requirement that the executive is bound by the law bears some specific features. These particularities result from the specific character of the national objectives which shape the executives’ obligation to respect the Constitution as well as law adopted by the legislature. National state objectives usually define highly abstract goals. In order to be operational, they need to be fleshed out either by interpretation or by more specific legislation. The legislator has the mandate and prerogative to specify national objectives, and it does so mostly through legislation. At the same time, however, the state objectives laid down in the constitution are directly binding on the executive and thus develop a normative power independent of the legislature. Accordingly, the executive is subject to both the legal obligations deriving from the law of the legislature and those deriving from the Constitution. This results in two separate standards by which the public administration is potentially bound. Usually they form a single standard in the sense defined by the legislator. The independent normative power of national objectives merely unfolds when there is no specification through legislation or when the public administration is granted discretion in the application of the law and, within this discretion, directly applies state objectives. Accordingly, in such cases, the administration bases its actions directly on the objectives set out in the Constitution. The openness of the national objectives means, however, that there may be a too much discretion within the executive. This has so far been accepted. But this discretionary power cannot be limited by reference to the Constitution alone. Further binding standards must be set for the administration: either by the legislator or, alternatively, within the administration itself.