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Volume 47 Number 4 Separation of Powers in the Americas ... and Beyond: Symposium Issue

Article 11

2009

Separation of Powers from the German Perspective Separation of Powers from the German Perspective

Kay Windthorst

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Recommended Citation Recommended Citation Kay Windthorst, Separation of Powers from the German Perspective, 47 Duq. L. Rev. 905 (2009). Available at: https://dsc.duq.edu/dlr/vol47/iss4/11

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Separation of Powers from the German Perspective

PD Dr. Kay Windthorst*

1. HISTORY OF SEPARATION OF POWERS INGERMAN CONSTITUTIONS .............................................. 906

II. THE IMPLEMENTATION OF SEPARATION OFPOWERS IN THE BASIC LAW ........................................... 907

III. EMBODIMENT OF SEPARATION OF POWERS IN THEB ASIC LAW ..................................................................... 909A. State Authority as a Reference Point ................ 909B. Modifications in the Understanding of

Separation of Powers ........................................ 910IV. STRUCTURE OF THE REGULATION OF SEPARATION OF

POWERS IN THE BASIC LAW ........................................... 911A. Distinction Between Material,

Organizational, and PersonalSeparation of Functions .................................... 911

B. Principle and Exceptions of MaterialSeparation of Functions .................................... 9111. The Relationship Between

Legislative and Executive ..................... 9112. The Relationship Between the

Judiciary on the One Hand and theLegislative and Executive ..................... 913

C. Principle and Exceptions of OrganizationalSeparation of Functions .................................... 914

D. Principle and Exceptions of PersonalSeparation of Functions .................................... 915

V. HORIZONTAL AND VERTICAL DIMENSIONS OFSEPARATION OF POWERS ............................................... 916A. Between the Federal Government and the

S ta tes ................................................................. 9 16B. Between the German Government and the

European Union ................................................ 916V I. CONCLUSION ................................................................. 918

* Adjunct Professor of Law, University of Cologne.

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I. HISTORY OF SEPARATION OF POWERS IN GERMAN CONSTITUTIONS

The separation-of-powers concept was not legally recognized inGermany until comparatively late. While this maxim has beenpart of the Constitution of the United States of America since1787 and also firmly anchored in the French Constitution in1791,1 the realization of a genuine separation of powers was op-posed in Germany for quite a long time. The origins of this devel-opment can be seen in the early constitutions of German states.The Constitutional Charter for the State of Prussia dating back toJanuary 31, 1850, for instance, stipulated that representatives ofthe people had to be involved in legislation through so-calledchambers. 2 Furthermore, judicial power was exercised in thename of the King by independent courts that fell under no juris-diction other than that of the law.3

The separation of powers was more clearly expressed in the con-stitutions of some German states after the First World War. Oneexample is the Republic of Baden's Constitution, dated March 21,1919, which expressly assigns state power to legislative, executive,and judicial authorities. 4 This decision noticeably ties in with de-liberations by Montesquieu, who drew a distinction between legis-lation, administration, and adjudication in his magnum opus DelEsprit des Lois as early as 1748. 5 However, the separation-of-powers concept as understood in this way did not initially becomeaccepted from a national perspective. The Constitution of theGerman Empire, dated April 16, 1871, referred to as Bismarck'sReich Constitution, established a system of combining and blend-ing different powers. Separation of functions occurred only at alower level. 6

Amazingly, the Weimar Republic Constitution, dated August 11,1919, tied in with this combined system and refrained from a clearstipulation in favor of a separation of powers. The National So-cialist dictatorship that reigned from 1933 until 1945 marked thedawn of a dark era for the separation of powers and the freedom of

1. 1791 CONST. tit. III, arts. 3-5 (Fr.).2. 1850 VERF. PRUSSIA [Prussian Constitution of 1850] art. 62.3. Id. art. 86, 1.4. 1919 VERF. BADEN [Baden Constitution of 1919] § 2, sentence 2.5. See MONTESQUIEU, DE LESPRIT DES LOIS [SPIRIT OF THE LAWS] 162-63 (G. Truc ed.,

Paris 1949) (1748).6. Special emphasis was given to the distribution of powers between the Empire and

its states.

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the individual. These principles are the very antithesis of the cen-tralistic structure of this oppressive state.

The separation-of-powers concept experienced a renaissance atthe end of the Second World War. The initiative re-emerged fromthe states. Their constitutions, which were decreed during 1946and 1947 (that is to say, before the Basic Law (the new Constitu-tion of the Federal Republic of Germany) came into force), con-tained a clear commitment to separation of powers. A typical ex-ample is the Constitution of the Free State of Bavaria, dated De-cember 2, 1946. In Article 5, Paragraph 1, it assigns legislativepower exclusively to the people and to the representatives of thepeople. 7 Conversely, executive power lies in the hands of the stategovernment and the subordinate administrative bodies. Judicialpower is exercised by independent courts.8

The constitutions that emerged during the same period for thestates that, at the time, still existed in the Soviet-occupied zone atfirst seemed to continue to adhere to the separation of powers.But in reality, socialistic elements were predominant. This under-current is evidenced by the Constitution of the State of Thuringia,dated December 20, 1946. 9 State power, then, not only has tocome from the people and be exercised by the people, but it alsomust serve their well-being.10

II. THE IMPLEMENTATION OF SEPARATION OF POWERS IN THEBASIC LAW

The preliminary work on the Basic Law was slow to embracethe separation-of-powers concept. The so-called Lake Chiem Draftof a Basic Constitutional Law, dated August 25, 1948, stipulatedthe separation of powers only for the German states.11 Accord-ingly, legislation, executive power, and adjudication have to beexercised by bodies of equal ranking, regardless of the govern-ment's responsibility vis-A-vis the state parliament. However, inthe later drafts of the Parliamentary Council-a committee of rep-resentatives of the states-that discussed the final version of theBasic Law, separation of powers also was established at the fed-

7. 1946 VERF. BAVARIA [Bavarian Constitution of 1946] art. 5, 1.8. Id. art. 5, 2-3.9. See, e.g., 1946 VERF. THURINGIA [Thuringian Constitution of 1946] art. 3, 1.

10. Id.11. Lake Chiem Draft art. 29, 3, in REPORT ON THE LAKE CHIEM CONSTITUTIONAL

CONVENTION, AUG. 10 TO 23, 1948 64 (1951).

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eral level. 12 These drafts stipulated that the people exercise statepower in legislation, administration, and adjudication separatelyfor each of these areas through special bodies in accordance withthis Basic Law. Moreover, adjudication and administrationshould be governed by the law.

These formulations in the drafts of the Parliamentary Councilcreated the direct basis for the separation of powers to be an-chored in the Basic Law, which was proclaimed on May 23, 1949.13

The key provision is Article 20, Paragraph 2.14 Accordingly, allstate power comes from the people. 15 It is exercised by the peoplein elections and referendums. State power is realized throughspecial bodies for legislation, for executive power, and adjudica-tion. This fundamental decision contains three basic statements,which, though interconnected, convey messages of their own. Onthe one hand, the people are recognized as the original holders ofstate power. On the other, the way in which the people exercisestate power is decidedly settled: by elections and referendums.

Referendums are direct plebiscite decisions regarding particularmatters-the reorganization of the states, for instance. One ac-tual example is the highly-publicized 1996 referendum on the uni-fication of the states of Berlin and Brandenburg. (This referen-dum did not, however, achieve the required majority.) Electionshave more practical significance for the realization of state power.Elections call upon individuals who exercise state power and, indoing so, directly and democratically legitimize the government bythe people's vote. The Basic Law stipulates elections only for therepresentatives of the German Bundestag, the Lower House ofParliament. 16 This provision also specifies the requirements to besatisfied in this process. Accordingly, elections must be general,direct, free, equal, and confidential. 17 These principles of electorallaw also are binding for electing the representatives of the stateparliaments and the local government representatives.' 8 This re-quirement not only guarantees a minimum degree of homogeneitybetween the constitutions of the government and the states in this

12. Minutes 12.48/329, Parliamentary Council, Principal Comm., 4th Sess., at 4 (1948)(F.R.G.).

13. GRUNDGESETZ [GGI [Constitution] (F.R.G.).14. GG art. 20, 1 2.15. Id.16. Id. art. 38, 1.17. Id.18. Id. art. 28, 1.

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issue, but it also recognizes the fact that elections take place atthis state level, too.

III. EMBODIMENT OF SEPARATION OF POWERS IN THE BASIC LAW

The key statement on the separation of powers is contained inthe final clause of Article 20, Paragraph 2. It demands that thestate power legitimized by the people be exercised through specialbodies for legislation, for executive power, and for adjudication.This constitutional embodiment of the separation-of-powers prin-ciple is corroborated in conjunction with the guarantees of funda-mental rights through Article 1, Paragraph 3. Accordingly, thebasic rights bind legislation, executive power, and adjudication asdirectly applicable law.

A. State Authority as a Reference Point

The Basic Law governs the exercise of state power in these sub-areas in separate sections. Section 7 divides the responsibility forlegislation between the federal government and the states. 19 Itcomprises the principle that the states possess the power to legis-late. The government possesses the power of legislation only if theBasic Law itself assigns to it the jurisdiction for specific topics. 20

Regardless of this constitutional exception to the rule, the mainfocus in constitutional practice is on federal law. This divergencebetween the regulatory claims of the Constitution and the consti-tutional reality was one reason why, in 2006, the power to legis-late held by the states was expanded and reinforced as part of theso-called federalism reform.21

Section 8 settles the responsibility for executing federal laws. 22

In principle, this responsibility, unless otherwise stipulated orpermitted by the Basic Law, lies with the states. Such an alterna-tive assignment of administrative power to the government is lim-ited to certain regulatory matters. These matters include, for ex-ample, the Foreign Service, the Federal Border Guard, and theArmed Forces. 23 The Basic Law deals, in its own section, with ad-judication-the so-called third power. Articles 92 to 104 governcourt organization and judicial independence. They also contain

19. GG arts. 70-82.20. See id. arts. 73-74.21. Amending law to the Basic Law, Aug. 28, 2006, BGB1. I at 2034.22. GG arts. 83-91.23. Id. art. 87, 1; id. at art. 87b, 1.

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important procedural guarantees, such as the jurisdiction of thejudge being determined by law in advance. 24 These provisionsleave no doubt that the separation-of-powers principle has beenlaid out in the Basic Law.

B. Modifications in the Understanding of Separation of Powers

All this conclusion does, however, is open the floodgates to ahost of contentious legal issues concerning the separation of pow-ers. One key reason is that this principle is not realized in theBasic Law as a strict separation. Instead, it permits breaches un-der various exceptions, which will be discussed in detail later.Suffice it to say that, at this stage, a flawless, strict separationsystem is not possible because the complex conditions require acertain interaction between the various parts of state power. Thequestion, therefore, is not whether such a procedure is permittedat all, but in which cases, under which conditions, and to whatextent such breaches of the separation of powers are to be ac-cepted. The answer is held mainly in the specific parameters ofthe Basic Law. This contention will be explained in detail later. 25

It must be stated, though, that it is not about a strict separationor simple division of state power. According to the constitutionalorder of the Federal Republic of Germany, which is settled by theBasic Law, the organization of power through the division andstructuring of functions predominates. The concept of separatingthe powers has evolved into the idea of sharing responsibility anddistributing functions. This idea creates the basis for carrying outpublic duties in divided and related responsibility. This alteredappreciation also is reflected in a changed concept. Instead of theseparation of powers, we now talk in Germany mainly about aseparation of functions, 26 a distribution of functions, 27 or a struc-turing of powers.28 The term separation of powers can thereforeonly continue to be used if it is not equated with a strict divisionor separation and instead becomes receptive to this transformedunderstanding. Only the tradition of parlance would have this

24. Id. art. 101, 1, sentence 2.25. See discussion infra Part IV.26. Hans-Detlef Horn, Gewaltenteilige Demokratie, Demokratische Gewaltenteilung

[The Separate Powers of Democracy, The Democratic Division of Power], 127 ASR 427, 431(2002).

27. 2 KLAUS STERN, DAS STAATSRECHT DER BUNDESREPUBLIK DEUTSCHLAND [THEPUBLIC LAW OF THE FEDERAL REPUBLIC OF GERMANY] 520 (1980).

28. See CHRISTOPH MOLLERS, GEWALTENGLIEDERUNG [POWER ARRANGEMENT] (2005).

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term retained. However, the term does not appropriately conveythe features. This argument carries a good deal of weight. In thecurrent historical moment, separation of powers should be relin-quished and superseded by the terms distribution of functions orstructuring of powers.29

IV. STRUCTURE OF THE REGULATION OF SEPARATION OF POWERS

IN THE BASIC LAW

A. Distinction Between Material, Organizational, and PersonalSeparation of Functions

Regardless of terminology preferences, the structure of separa-tion of powers in Germany must now be conveyed. This structurebecomes clear if we take a holistic look at the provisions of the Ba-sic Law, which divide or connect state power. At the federal level,a distinction can be drawn according to how the assignment islinked, between material, organizational, and personal separationof powers. 30

B. Principle and Exceptions of Material Separation of Functions

Material separation of powers is commonly described as a mate-rial separation or distribution of functions. The idea is that thematerial state functions of legislation, administration, and adjudi-cation are primarily and in principle assigned to a body estab-lished specifically for fulfilling this responsibility. 31

1. The Relationship Between Legislative and Executive

According to the system of functions in the Basic Law, norm-setting falls primarily to the Bundestag, the Lower House of Par-liament, as the legislative power. The federal government, as thehighest executive body, is assigned the government and the ad-ministration as main tasks. Courts are assigned adjudication.

The relationship between these functions and the administeringbodies is arranged essentially by two structural principles. Firstis the legal obligation stipulated in Article 20. Parliamentary lawis obligatory for bodies of executive power and adjudication. Thisprinciple is comparable to the Supremacy Clause in Article VI of

29. Id. at 25.30. 2 STERN, supra note 27, at 795-96 (2d ed. 1984).31. Id. at 795.

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the Constitution of the United States of America. The submissionto parliamentary laws is repeated again for the judiciary in Article97, Paragraph 1. The second is the unwritten principle that thecore area concerned is assigned exclusively to the bodies envisagedspecifically for this purpose and cannot be touched. This traditionprecludes breaches. 32 The difficulty, however, lies in determiningthe core area of each function. It can generally be paraphrased asthe functions that are typical, formative, and constitutive for theparticular function area. 33 This definition, though, conveys a cer-tain ambiguity. It therefore is criticized in part.34 However, therehas not yet been any success with developing more suitable de-marcation criteria. Thus, we should stick to the concept of thecore area and the associated protective effects.

In certain cases, the interpretation of the maxim first men-tioned-the principle of rule of law establishing a legal obligationfor the executive and the judiciary---can cause problems. First,this principle means that executive power and adjudication haveto comply with parliamentary laws when making decisions. Theselaws must not be disregarded or ignored. If they are, the decisionswill be illegal by virtue of the conflict-of-laws rule of priority of thelaw. Article 20, Paragraph 3 also contains the so-called Vorbehaltdes Gesetzes, a principle difficult to translate.35 By its effects, thelegislature, which is legitimized democratically and directly, hasthe exclusive jurisdiction on all essential decisions made by thegovernment. 36 Essential in this context primarily means meas-ures that interfere with citizens' basic rights. This doctrine doesnot, in principle, preclude the executive branch's power to under-take administrative duties, but it does demand a sufficiently de-terminate parliamentary law. Only for a few matters, such as im-prisonment, for instance, is regulation reserved for the Parliament(Bundestag) and precludes any action of executive power. 37 Out-side of this area, the principle demands only an adequately deter-mined normative programming of executive power. In this way,the principle of the Vorbehalt des Gesetzes, which establishes thenecessity of a parliamentary law, substantiates the principle of

32. Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] 9, 268 (280)(F.R.G.); id. at 34, 52 (59); id. at 67, 100 (139); id. at 95, 1 (15).

33. 2 STERN, supra note 27, at 542.34. Horn, supra note 26, at 438-40.35. See 2 STERN, supra note 27, at 802-15.36. This is the so-called Essential Decisions Doctrine. See BVerfGE 40, 237 (249); id. at

49, 89 (127); id. at 59, 257 (278); id. at 77, 170 (230-231); id. at 83, 130 (152).37. GG art. 104, 1, sentence 1.

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the material separation of functions between legislative and ex-ecutive.

According to this principle, the core areas of these state authori-ties must always be respected. Yet, outside this area, the princi-ple of separation of powers is subject to different interdependen-cies and limitations. Interdependencies occur, for example, whendecreeing federal laws, for which Articles 77 and 78 stipulate vari-ous forms of involvement by the so-called Bundesrat, the FederalCouncil. This Upper House of Parliament represents the Germanstates. In principle, the Federal Council is entitled only to an ob-jection that has the effect of a suspensive veto. As an exception,however, the Basic Law requires certain federal laws to be ap-proved by the Federal Council. This requirement appears espe-cially when the federal law concerns essential matters of thestates.38 The states can realize their interests through the FederalCouncil, which is composed of members of the state governments.If the Federal Council refuses the required consent, decreeing ofthe federal law is not temporarily inhibited, but rather has ulti-mately failed. So, the involvement of the Federal Council resultsin the restriction of the legislative function of the Lower House(Bundestag).

This Upper House veto power is justified by the state structureof the Federal Republic of Germany. From the perspective of amaterial separation of functions, the involvement of the FederalCouncil exhibits an additional peculiarity in that it is a multiple-power body. According to Article 50, the states are involvedthrough the Federal Council in legislation, in the administrationof the federal government, and in matters concerning the Euro-pean Union.39 As an interim result, the Basic Law permits limita-tions in the material separation of functions, first and foremost inthe relationship between legislation and executive power.

2. The Relationship Between the Judiciary on the One Handand the Legislative and Executive

However, with regard to adjudication, the principle of materialseparation of functions is subject to only minor restrictions. Suchrestrictions occur in the relationship between the judiciary andlegislative function because the judge is bound to parliamentary

38. See, e.g., id. art. 84, 7 1, sentence 6; see also, e.g., art. 85, 7 1, sentence 1.39. Id. art. 23, 2, cl. 2; id. art. 23, 77 4-6.

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laws.40 In the relationship between the judiciary and executive,restrictions for adjudication can result from having acknowledgeda core area of executive action. Within that core, in particular, arecounter-balance decisions by the administrative authorities.These authorities have a scope by weighing different intereststhat the courts must respect. These agency-level evaluationsbring about a reduction in judicial control density. 41

C. Principle and Exceptions of Organizational Separation ofFunctions

Besides the material separation of functions, the principle ofseparation of powers also includes the organizational separation offunctions. Idealized, it guarantees independence of the function-holders from each other. 42 The Basic Law, however, permitsbreaches of the principle to a broad extent. The most importantexception is the ongoing dependency of the federal government'sexistence on Parliament. The legislature is a key feature in theconcept of a parliamentary government system that is establishedby the Basic Law and evident in various places. The FederalChancellor is elected by the Bundestag.43 This Lower House canexpress a vote of no-confidence to the Federal Chancellor if themajority of members elect a successor and request the FederalPresident to discharge the Federal Chancellor. The FederalPresident must comply with this request and appoint the Chancel-lor-elect as the new Federal Chancellor. 44 Throughout the historyof the Federal Republic of Germany, there have been two such at-tempts at a so-called constructive vote of no-confidence. In 1972,the attempt to vote out Chancellor Willy Brandt by electing theopposition leader Rainer Barzel failed, but, in 1982, Helmut Kohlwas successfully elected in place of Helmut Schmidt.

Likewise, the Federal Chancellor also can personally requestthat the Lower House expresses confidence. If the majority of themembers deny this request, the Federal President can, at the sug-gestion of the Federal Chancellor, dissolve the Lower Housewithin twenty-one days.45 There have been four instances of this

40. Id. art. 97, 1.41. Verwaltungsgerichtsordnung [VwGO] [Code of Administrative Procedure], Jan. 21,

1960, BGB1. I at 17, last amended June 17, 2008 by BGB1. I at 1010, § 114 (F.R.G.).42. 2 STERN, supra note 27, at 795.43. GG art. 63.44. Id. art. 67.45. Id. art. 68.

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dissolution to date. Federal Chancellors Brandt, Schmidt, Kohl,and Schroder wanted to overcome a parliamentary standoff on theissue of confidence by dissolving the Lower House and having a re-election.46 The Federal Chancellor's strong dependency on theParliament in Germany largely restricts the principle of an organ-izational separation of functions. In this regard, there is a keydifference from the separation of powers in the United States ofAmerica, which permits an impeachment of the President by Con-gress only under specific conditions. 47

D. Principle and Exceptions of Personal Separation of Functions

The third element of the separation of powers is the personalseparation of functions. This element requires dissimilarity in thepersonnel filling of the various bodies. The official of a body ofpower may not, in principle, belong to any other power. 48 The so-called incompatibility concept is explicitly stated in only a fewplaces in the Basic Law. According to Article 55, Paragraph 1, theFederal President may not belong to either the government or alegislative body of the government or of a state. The members ofthe Federal Constitutional Court may not belong to the LowerHouse, the Federal Council, or any corresponding bodies of astate.49 Conversely, in Article 137, Paragraph 1, the Basic Lawvirtually leaves the regulation of the issue of whether executiveofficials may belong to a parliament at the same time to the legis-lature, which can restrict its members' eligibility for executive po-sitions through the law.

The Basic Law does not establish personal separation of func-tions in a central area, namely, the affiliation of a person to par-liament and government. Compared with German law, the Con-stitution of the United States contains considerably more exten-sive stipulations for incompatibility. In the United States, nomember of Congress may hold a salaried federal office during theperiod of mandate. 50 Conversely, it is difficult in both countries toavoid the general risk of personal separation of functions, whichresults from people belonging to the same party, and, for example,fosters the spoils system.

46. These instances led to following decisions of the Federal Constitutional Court: seeBVerfGE 62, 1 et seq.; id. at 114, 121 et seq.

47. U.S. CONST. art. I, § 2, cl. 5; id. art. I, § 3, cls. 6-7; id. art. II, § 4.48. 2 STERN, supra note 27, at 795-96.49. GG art 94, 1, sentence 3.50. U.S. CONST. art. I, § 6, cl. 2.

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V. HORIZONTAL AND VERTICAL DIMENSIONS OF SEPARATION OF

POWERS

A. Between the Federal Government and the States

In addition to the horizontal structuring of functions at the fed-eral government level with its various ramifications and breaches,this principle also has a vertical dimension. On the one hand, itconcerns the division of state power between the government andthe states. 51 In this regard, stricter stipulations apply than for thehorizontal structuring of powers. A shared exercising of functionsby the government and the states, specifically what we call inGermany a "mixed or blended administration," is wholly undesir-able. 52 An exception is allowed for so-called joint functions, suchas coastal protection. 53

The vertical dimension of separation of powers is assigned to thefederal-state principle and assessed according to the rules derivedfrom that principle. The distribution of power for legislation, ex-ecutive action, and adjudication between the government and thestates results, from a vertical perspective, to a balancing of statepower. Just like the separation of powers, it ultimately serves toprotect the freedom of the individual against an unrestrainedstate power. 54

B. Between the German Government and the European Union

The division of sovereign power between the Federal Republic ofGermany and the European Union is problematic. Thematically,it also can be assigned to the vertical separation of powers. 55

Given the complexity and intricacy of the issues, I will stick to il-lustrating a few main features. A special situation arises becausethe European Union is a supranational entity, but not a state. It

51. See Christoph Mollers, Dogmatik der Grundgesetzlichen Gewaltengliederung[Dogma of the Constitutional Power Arrangement], 132 AOR 493, 526 (2007); LAWRENCE H.TRIBE, AMERICAN CONSTITUTIONAL LAW 123-37 (3d ed. 2000).

52. The Federal Constitutional Court considers such a form of administration as unduein principle. BVerfGE 11, 105 (124); id. at 32, 145 (156); id. at 41, 291 (311).

53. GG art. 91a, 1.54. See BVerfGE 104, 249 (279); KONRAD HESSE, GRUNDZOGE DES

VERFASSUNGSRECHTS DER BUNDESREPUBLIK DEUTSCHLAND (MAIN FEATURES OF THECONSTITUTIONAL LAW OF THE FEDERAL REPUBLIC OF GERMANY] 231 (20th ed. 1995); TRIBE,supra note 51, at 123-37.

55. PAUL KIRCHHOF, GEWALTENBALANCE ZWISCHEN STAATLICHEN UND EUROPAISCHENORGANEN [POWER BALANCE BETWEEN NATIONAL AND EUROPEAN ORGANS], 965, 968-70(1998).

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qualifies neither as a federal state nor as a commonwealth. TheEuropean Union is, in fact, a confederation. 56 The member statesare responsible for its emergence, its existence, and its develop-ment. They are the "masters of the treaties" to whom the legalcommunity of the European Union owes its existence and the le-gitimization of its actions.57

Indeed, certain legal acts of the European Union, such as Euro-pean Council regulations, create a direct effect for national au-thorities and citizens. This claim to direct application is notbased, however, on original law-making power, but on the treatyon the founding of the European Community.58 The treaty wasbrokered by the member states and sanctioned by their democrati-cally legitimized parliaments. This act of approval is the reasonfor the application of European law in Germany. Only by crossingthis bridge can it attain intrastate validity. Legal acts of theEuropean Union that do not fall under the consent law are notbinding for German state power or German citizens. 59 This proce-dure of implementation limits the sovereignty of the EuropeanUnion.

Additional restrictions arise from the principles of limited indi-vidual empowerment and subsidiarity, which are anchored in thefounding treaties, the so-called primary law of the European Un-ion. According to these principles, the Union may operate only if,in the articles of primary law, it is assigned jurisdiction to do so.Furthermore, it may decree measures within this framework onlyinsofar as the goals cannot be reached at the member-state leveland, therefore, because of their scope or effects, would be bettertaking place at the European level. 60 This restriction lends addi-tional weight to the fundamental responsibility of the memberstates for the exercise of state power. However, there may be noconclusion drawn of these principles among the member statesbecause any law that the European Union decrees within its ju-risdiction is binding for the member states. In the event of a con-flict with national law, the national law will remain valid, but itmay not be applied. 61

56. "Staatenverbund" ["Confederation" lit. "State Group"]. See BVerfGE 89, 155 (186,188); KIRCHHOF, supra note 55, at 967-68.

57. BVerfGE 89, 155 (190).58. Treaty Establishing the European Community art. 249, 2, Nov. 10 1997, 1997

O.J. [hereinafter EC Treaty].59. See BVerfGE 31, 145 (174).60. EC Treaty art. 5, 1-2.61. BVerfGE 73, 339 (375); id. at 75, 223 (244); id. at 85, 191 (204).

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Furthermore, the member states are obliged to participate inEuropean integration and its continuing development. This legalobligation arises from the principle of community loyalty, which isa key element of the articles of the primary law.62 In Germany,Article 23, Paragraph 1 of the Basic Law contains a correspondingobligation. Compliance with this obligation and the requirementsto be respected in the process are monitored by the Federal Con-stitutional Court.63 In this regard, the Federal ConstitutionalCourt is in a relationship of cooperation with the European Courtof Justice. 64 The relationship of cooperation reflects the interlink-ing between the European and German legal systems. This inter-linking is led less by the idea of a strict separation of powers thanit is by an assignment, a distribution, and a balancing of func-tions.

VI. CONCLUSION

The embodiment of the separation of powers in the Basic Lawshows that the essence of its original function is, through the re-ciprocal control of legislation, executive power, and adjudication,to restrict the power of the state and, hence, safeguard the free-dom of the individual. This alignment is to be assigned, on itsmerits, to the principle of rule of law. It is the expression of no-confidence over a violation of state power. This notion of protec-tion remains applicable. It therefore continues to shape the un-derstanding of Article 20, Paragraph 2, which represents the cen-tral constitutional regulation for the separation of powers.

In more recent times, the Federal Constitutional Court and rep-resentatives of the law are assigning to the separation of powers afurther purpose, which is gaining in importance: the functionaladequate exercise of state authority. Accordingly, the distributionand assignment of powers is geared toward ensuring that statedecisions are taken as "right" as possible. This means that theyare taken by the body that is best qualified to do so, through itsorganization, composition, function, and procedure. 65 This goalderives from the notion that different holders of state functions,depending on organization and procedure, have different jurisdic-tions. An optimized assignment of functions is therefore required,

62. EC Treaty art. 10.63. See BVerfGE 89, 155 (186-90).64. BVerfGE 89, 155 (175); id. at 102,147; id. at 118, 79.65. BVerfGE 68, 1 (86); id. at 90, 286 (364); id. at 95, 1 (15); id. at 104, 151 (207).

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The German Perspective

and decisions should be made by the agency that possesses thecapabilities required to do so. The more complex and heterogene-ous the decision conditions are, the more important this aspect ofthe division of power becomes. Its primary purpose is not to pro-tect the freedom of the individual-it is to improve the effective-ness of state actions. 66

This expanded function and modified alignment of the constitu-tional principle of the separation of powers responds to changes inthe legal relationships between state and citizens. In this regard,it is no longer only about protection against state intervention tosecure the citizens' freedom, but also it is about participation instate benefits. The branches of government set the fundamentalconditions enabling legally guaranteed freedom to become a real-ity. Separation of powers-understood as a demand for function-adequate distribution of power-enhances the efficiency of exercis-ing state authority and at the same time serves the interests ofthe citizens. The judiciary and jurisprudence are called upon toreact to these interdependencies by further development of thiselement of the separation of powers.

66. See Horn, supra note 26, at 448-51; WOLFGANG HOFFMANN-RIEM,

GEWALTENGLIEDERUNG UND VERANTWORTUNGSTEILUNG ALS ORDNUNGSPRINZIP [POWER

ARRANGEMENT AND THE DIVISION OF RESPONSIBILITY AS A SYSTEM] 183, 186 (2008).

919Fall 2009