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GOVERNMENT IN THE PARLIAMENTARY SYSTEM OF THE FRG (Rzad w systemie parlamentarnym RFN)

100%
Zwierzchowski E.
Przegląd Sejmowy
|
2009
|
issue 6(95)
EN
The Bonn Constituent Assembly has developed a unique and innovative form of parliamentary system. Its normative approach, particularly the method of constitutional regulation of the position of the Federal Chancellor within the structure of government bodies and in the system of supreme authorities of the Federation, is very distinct, therefore even serious German constitutionalists doubted if it is consistent with the model of parliamentary government. The author attempts to confront appropriate norms of the Basic Law with their practical application. First, he presents normative solutions of the Basic Law specifying the legal status of the Chancellor and constitutionally separated organs of the federal government, as well as the legal basis for their operation. He also provides a relatively concise description of mutual influence exerted by main political actors, including the elites of political parties functioning within institutionalized decision-making structures responsible for appointments and shaping future and current goals of the authorities of the Federation. The author is particularly interested in its influence on separated branches of the federal government, as well as the influences of the latter on decisions of other organs. One of the final conclusions is that the period when, due to post-war underdevelopment of socio-political institutions, the executive covered the whole political sphere at the same time marginalizing the impact of other political institutions, ended in the mid 1960s. The balance - temporarily upset - between the authorities and the political establishment was changed to the disadvantage of the executive. The significance of diverse political elites increased as they began to effectively influence the shape of government policy. This means an increasing role of both representative bodies and party leadership. Currently, they play a key role in the system of government. This is typical not only of the Federal Republic, but also of all countries where the institutional shape of democratic political system so permits.
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CURRENT LAWMAKING DILEMMAS OF THE EXECUTIVE IN THE FRG (Wspólczesne dylematy prawotwórstwa egzekutywy RFN)

80%
Dzialocha K., Skwara B.
Przegląd Sejmowy
|
2009
|
issue 6(95)
EN
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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