獨逸의 聯邦制改革과 聯邦․州의 立法權限의 再編

Abstract

The fundamental criticism aimed at the state of German federalism is combined with the demand for the “Commission for the Modernization of the Federal Order” (Commission of Federalism) to restart its work. This commission had been instated by the German Bundestag and Bundesrat, but failed in its task in the end of 2004 due to unsolvable differences in opinion concerning the allocation of state powers in the areas of education and research. Currently the Commission of Federalism is being called on by some to lead the way out of the current crises by developing a clear-cut distribution of powers between The Federation, Lander, and communities by fundamentally reforming German federalism and to reduce the “reform tailback”. Current criticism focuses on the Bundesrat and its rights of participation as the incarnation of the disliked system of “Verbundfoderalismus”. Critics have largely focused on reducing the Bundesrat󰡑s supposedly excessive amount of participatory rights that are susceptible to abuse, namely using those rights to marshal blockade attempts. This reduction is emphatically demanded for the numerous rights of approval (Zustimmungsrechte) which were often established as compensation for the loss of original powers of the Lander. The criticism regarding the kind and the amount of participatory rights of the Bundesrat also draws on a second argument: European integration and globalization also lead to a competition among political systems; therefore speedy decision-making processes and a high level of organizational flexibility are needed to maintain the ability to compete with other jurisdictions. Besides a debatable reform suggestion to completely reorder the catalogues of Art. 73 and 74 Basic Law, it has been suggested that a new form of power be introduced: the Lander shall receive the right to decree laws in certain areas which so far form part of the concurrent legislation or the federal framework legislation and are currently (and partly) regulated by federal law. These laws of the Lander supplement or substitute federal law and claim primary validity (so-called reversed concurrent legislation). In effect, federal law only has supportive functions in these areas. This new form of legislative power would not only overturn the regulation in Art. 31 Basic Law which establishes part of the federal order, but would also break with the hitherto tendency of distributing powers which aim at legal unity and clarity. In addition it would break with the existing legislative practice (safe the area of federal framework legislation) to have an area regulated as exhaustively and completely as possible by one competent legislator--be it the Federation or the Lander.