CURRENT LAWMAKING DILEMMAS OF THE EXECUTIVE IN THE FRG (Wspólczesne dylematy prawotwórstwa egzekutywy RFN)
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In the FRG, statutory instruments implementing Community law are issued, each time, on the basis of a delegation by a law, which however does not satisfy the requirements specified in Article 80(1), second sentence, of the Basic Law. They do not indicate a concrete act of Community law, but only give authorization to implement abstractly defined EC directives or regulations. Any restriction of the scope of such authorization ensues only from the purpose of the authorizing law. The argument for unconstitutionality of such authorizations is the lack of determination of the content of statutory instrument issued on their basis, the argument for their constitutionality is provided by a joint interpretation of Article 80 and Article 23 of the Basic Law. These authorizations are the response to the decision of the sovereign of the FRG to accede to the Communities and the European Union. They are justified, on the grounds of legal dogma, by the accomplishment of the principles of democracy, perceived from the perspective of the European system of constitutional law which constitutes a coherent system combining national law and European law. Nevertheless, they do not perform the basic function of statutory delegation (authorization by a law) to issue a statutory instrument in order to compensate democratic deficit which is an attribute of the issuance of statutory instruments. There are two possible ways to solve this dilemma, First is to modify Article 80(1), second sentence. Second is to depart from the formula of general authorizations and replace them by specific authorizations which make it possible to implement, by way of a statutory instrument, a narrower scope of Community law, limited to a chapter of a law in which such specific authorization was regulated. Arguments for the second solution include failure of all attempts to amend Article 80(1) second sentence, and the fact that the determination of the content of a statutory instrument by an authorization by a law results, above all, from the constitutional principles of the state ruled by law, democracy and separation of powers.
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