Carlo Panara

The Doctrine of Implied Powers in the German Federalism of the Basic Law

  • Abstract

Informations and abstract

Keywords: Doctrine of Implied Powers, Federalism, Germany

The Author focuses on the application of the doctrine of implied powers in the Federal Republic of Germany. The analysis is carried out with regard to the legislative competences. The article distinguishes different types of implied powers of the Federation and of the Länder. The function of these powers is to overcome the difficulties in the interpretation of the titles of competence in the Basic Law and to fill up apparent gaps in the list of federal competences. He then focuses on whether the doctrine of implied powers is consistent with the principle of enumerated powers of the Federation. The issue is addressed with wide reference to both the case law of the Federal Constitutional Court and the opinion of the legal scholarship. The conclusion is that the implied powers are not in principle in breach of the federal Constitution; on the contrary, they rest on a broad construction of the positive constitutional text. In conclusion he argues that the reform of the federal State of 2006 will not increase the resort to implied powers.

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