Lecture 4.8 - Distribution of Legislative Power in Germany

What is the federal structure of Germany? (Federalism)

Power is shared between the federal government (Bund) and the 16 federal states (Länder), balancing national unity and regional autonomy.

Where is federalism protected in the Basic Law?

Article 79(3) GG - an “eternity clause”, meaning federalism cannot be abolished, even by constitutional amendment.

What is the general rule for legislative powers in Germany?

Article 70 GG

• Länder have general legislative power; the federation legislates only when the Basic Law grants it specific authority.

What are exclusive federal powers?

Areas where only the federal government can legislate, and Länder have no authority unless authorised by federal law.

Examples of exclusive federal powers (Article 73 GG)

• Foreign affairs and defence

• Citizenship, immigration, and passports

• Currency and money

• Air transport, federal railways

• Copyright and industrial property rights

Why are the federal areas (Article 73 GG) reserved for the federal government?

They require national consistency and international coordination.

What are concurrent powers?

Areas where both federal and state governments can legislate, but federal law takes precedence if it exists.

Examples of Concurrent Powers (Article 74 GG)

• Civil and criminal law

• Labour law

• Economic regulation

• Environmental protection

• Public welfare (social assistance, health care)

• Higher education/university policy

When can the federal government use concurrent powers? (Article 72 GG)

Only if:

1. The matter requires legal or economic unity, or

2. It is necessary to maintain equivalent living conditions across the Länder

What areas remain under Länder control?

Anything not listed as federal (exclusive or concurrent), including:

• Education and schooling

• Policing and public order

• Culture and media

• Local administration and municipal law

How strong is state power in Germany?

Very strong in education, police, and local matters, allowing regional variations.

How does Germany balance federal unity and regional diversity?

• Bundesrat: State governments participate directly in federal legislation

• Federal Constitutional Court: Resolves disputes over federal vs. state powers

Called cooperative federalism (cooperation rather than strict separation

Why did the framers of the Basic Law give strong Länder powers?

To prevent concentration of authority, avoiding past authoritarianism, while still maintaining a functioning national state.

Article 70 GG

Länder have general legislative power

The federation may legislate only when the Basic Law grants it specific authority. This makes Länder the default lawmakers.

Article 71 GG

Confirms that Länder may only legislate in areas of exclusive federal power if authorised by federal law, which is very rare.

Article 72 GG

Governs when the federal government can use concurrent powers: only if national unity or equivalent living conditions across Länder require it. Federal law then overrides Länder law.

Article 73 GG

Lists exclusive federal powers:

• Foreign affairs

• Defence

• Citizenship

• Currency

• Air Transport

• Copyright

Article 74 GG

Lists Concurrent Legislative Powers

• Civil and Criminal law

• Labour law

• Environmental protection

• Social welfare

• Higher education

Länder can legislate unless federal law exists.

Article 79(3) GG

Protects the “eternity clauses”

• Meaning federalism, democracy, and certain core principles cannot be abolished by constitutional amendment.