II. Are there Independent Administrative Agencies with Rule-making Powers in Germany?
3. Maxims and Boundaries of Administrative Body Independisation
a) Principles
The German administrative organisation has recently been undergoing a process of decentralisation, by which the administrative entities are more or less gaining an independent status from their respective minis- tries. An independent administration, not subject to ministerial instruc- tions is therefore clearly identifiable. This regards independent Federal Authorities as well as corporate bodies under public law and public law institutions. Given this background it becomes clear why the term
“Quangos” has failed to gain any notable significance in the German le- gal system: German law has developed a variety of public law organisa- tional types which are responsible for the execution of administrative tasks, making the term “Quangos” dispensable.
There are various forms of the independisation of administrative enti- ties. In the case of a reduction of ministerial control to a minimum or complete abstinence thereof, the respective administrative body will gain independence in decision-making. This independence can be insti- tutionalised, as in the case of the Federal Budget Authority (Bundes- rechnungshof, see Art. 114 II 1 GG) or the German Federal Bank.27 The liberation from ministerial instructions can pertain to or be limited to specific questions requiring special expertise, such as the Ethics Com-
25 H. Dreier, Hierarchische Verwaltung im demokratischen Staat, 1991, 240 et seq.;W. Kluth, in: Wolff/Bachof/Stober, Verwaltungsrecht III, 5th ed., 2004, 362 et seq.
26 See BVerfGE 57, 295, at 319 et seq.; BVerfGE 73, 118, at 152 et seq.; also T. Groò, Das Kollegialprinzip in der Verwaltungsorganisation, 1999, 210 et seq.
27 W. Kluth, in: Wolff/Bachof/Stober, Verwaltungsrecht III, 5th ed., 2004, 331.
missions,28 or address individual issues, as in the decisions on the Fed- eral Inspection and Rating Agency on Youth-endangering Publications.
Furthermore, the independisation of administrative bodies can have a
“personal dimension”. If a ministry abstains from appointing the direc- tor of an agency, it automatically gains a so-called “personal indepen- dence”. Lastly, a “financial independence” of administrative bodies is conceivable. This aspect deals with the funding of the administrative body.
There are various reasons for the independisation of administrative en- tities and its effects, above all the authorisation of “instructionless spheres” (those areas of administrative activity which are not subject to any sort of instruction by the ministries). The main and most worthy of mentioning is the possibility of conducting technical specialisation and creating expert rather than political decision-making. Also, the possibil- ity of an administrative agency (such as the Federal Budget Authority) performing independent duties similar to jurisdiction is only conceiv- able if an independisation has taken place.29 Other reasons are: the grant of self-administration, as in the case of professional bodies; the protec- tion of constitutional rights, as in the case of public broadcasting com- panies and universities; and the safeguarding of decision-making on so- cial and cultural values, as in the case of the Federal Inspection and Rat- ing Agency on Youth-endangering Publications. Nonetheless, there are less advantageous effects produced by the independisation of adminis- trative bodies, namely the danger of diverging or contradictory admin- istrative decisions and an increasing ineffectiveness of supervisory mechanisms.
b) Constitutional Boundaries
Though there may be plausible arguments in favour of the independisa- tion of administrative bodies, it must also be taken into consideration that this process would be subject to the boundaries determined by constitutional law. The jurisdiction of the Federal Constitutional Court (Bundesverfassungsgericht)30 has repeatedly stated that “instructionless
28 W. Kluth, in: Wolff/Bachof/Stober, Verwaltungsrecht III, 5th ed., 2004, 331.
29 K. Stern, Das Staatsrecht der Bundesrepublik Deutschland II, 279.
30 BVerfGE 9, 268, at 279 et seq. on instructionless spheres within personal representations; BVerfGE 83, 130, at 150 on the liberation from instructions in
spheres” within the administration are not necessarily illegitimate, as long as they uphold the constitutional principles, mainly the principle of democracy.31
In taking a closer look at the Court’s statement, its background be- comes clear: it is derived from the basic democratic principle in Art. 20 II 2 GG, which states that all power in the state is held by the people.
The Court deduces from this principle that any governmental activity with decision-making characteristics must require democratic legitima- tion;32 parliamentary elections put the power of the people into prac- tice,33 and it is the election which legitimates the formation of the gov- ernment. The power of the government to give instructions to the sub- ordinated administrative authorities forms the continuation of this le- gitimation chain. In short: the independisation of administrative entities inevitably results in a reduction of democratic legitimation, because it depends on the subjection to instructional orders within the ministerial bureaucracy.
However, not every liberation from ministerial instructions constitutes a breach of democratic principles.34 Certain administrative bodies ob- tain constitutionally supported “instructionless spheres”; examples would be the German Federal Bank (Deutsche Bundesbank), the Budget Authorities (Rechnungshửfe) at the federal and state levels, the public broadcasting companies and the universities.35 Aside from this, the Federal Constitutional Court has permitted deviations from the principle of instructional dependence when and if the instructionless performance of duties by an administrative body has little or no politi-
the case of the Federal Inspection and Rating Agency on Youth-endangering Publications. See also BVerwG, NJW 1973, 865, at 865.
31 The literature often demands stricter requirements for the independisa- tion process and will only admit such independisations if such a process is es- sential to the respective issue at hand, or if there are significant objective reasons in its favour, see K. Stern, Das Staatsrecht der Bundesrepublik Deutschland II, 279; P. Lerche, in: Maunz/Dürig, Grundgesetz V, Art. 86/70; less critical G.F.
Schuppert, Die ệffentliche Verwaltung 1981, 153, at 158. Extensive on this topic: W. Mỹller, Ministerialfreie Rọume, Juristische Schulung 1985, 497 et seq.
32 BVerfGE 107, 59, at 87; BVerfGE 83, at 60, 71, 73.
33 BVerfGE 83, 60, at 71 et seq.
34 In BVerfGE 83, 60, at 72 and BVerfGE 106, 64, at 74 the court states that a certain level of legitimation is necessary.
35 T. Puhl, in: Isensee/Kirchhof, Handbuch des Staatsrechts III, 3rd ed., 2005,
§ 48/44.
cal significance.36 On the other hand, executive tasks of a certain politi- cal importance cannot be withdrawn from parliamentary decision- making power at any time.37 If such tasks were assigned to agencies which are fully independent from the government and parliament, it would be impossible for the government to take up its assigned respon- sibilities; moreover, the lack of control would lead to an illegitimate di- rect involvement of these independent agencies in the federal adminis- tration.
Apart from attributing the necessity for increased control of adminis- trative bodies to the political significance of the task itself, the Federal Constitutional Court has also regarded an administrative task’s pre- structurisation in terms of form and content as a main criteria.38 An “in- structionless sphere” is therefore only possible within a very narrow administrative decision-making range. In contrast, the existence of an area of administrative discretion commands for an instructional de- pendency in order to guard democratic principles. Consequently, in- structionless spheres will emerge in adjudication, but not in rule- making, for the administering body typically disposes of a much wider range of manoeuvre within the latter.
A peculiar case can be found in the case of self-administration. It is dis- putable whether its democratic legitimacy results from its membership embodiment, which leads to a participation in self-administering ac- tivity. Here it is the members who handle the organisation and legiti- mate its activity; thus the sum of all members can be seen as the legiti- mating subject.39 It is also questionable whether the democratic legiti- macy requirement applies to the above mentioned advisory boards and brain trusts, such as the Central Ethics Committee for Stem Cell Re- search. Since these are also composed of representatives from a variety of interest groups – i.e. labour union representatives and environmental association members in the advisory board of the Federal Statistical
36 BVerfGE 83, 130, at 150. On page 149, the court states that the appoint- ment of the members of the Federal Inspection and Rating Agency on Youth- endangering Publications by the competent minister leads to a democratic le- gitimation. See also BVerfGE 106, 64, at 73.
37 BVerfGE 9, 268, at 282.
38 BVerfGE 83, 60, at 74.
39 W. Kluth, Funktionale Selbstverwaltung, 1997, 369 et seq.;M. Burgi, in:
Erichsen/Ehlers, Allgemeines Verwaltungsrecht, 12th ed., 2002, § 52/25; but see also H. Dreier, Hierarchische Verwaltung im demokratischen Staat, 1991, 274 et seq., BVerfGE 83, 60, at 75 and BVerfGE 106, 64, at 77.
Office –, there is actually a lack of democratic legitimacy in this case.
But according to the Federal Constitutional Court they do not require a formal democratic legitimacy, if the activity of the brain trusts limits itself to a merely advisory function with no possibility of participating in administrative decision-making.40
Adjacent to the democratic principle, two more constitutional aspects of the independisation of administrative bodies shall be mentioned.
When and if the legislation power is to be conferred to the executive branch, a breach of the constitutional principle on the separation of powers (Art. 20 II 2 GG) will emerge. As Art. 80 I GG perfectly illus- trates by conferring certain legislative powers to the executive branch (ordinance enactment), the separation of powers is not strictly trans- posed in the Grundgesetz. But it can be discussed whether the bestowal of rule-making powers to independent agencies would present an even greater deviation from the constitutional principle that legislative power is regularly held by parliament. Secondly, one should note that the in- dependisation of administrative bodies requires a parliamentary deci- sion. The so-called institutioneller Gesetzesvorbehalt demands that ba- sic institutional changes of the administrative structure of government have to be decided by a law of parliament. The purpose of institutional legal restraints is to prevent different public administrative fields from diffusing and detaching themselves from the hierarchically democratic controlling mechanisms.41
40 BVerfGE 83, 60, at 74.
41 H. Dreier, Hierarchische Verwaltung im demokratischen Staat, 1991, 285 et seq., who also states that the law of parliament has to provide organisational, procedural and substantive standards for independent administrative authorities and their decision-making process; see also P. Lerche, in: Maunz/Dürig, Grund- gesetz V, Art. 86/70, T. Groò, Das Kollegialprinzip in der Verwaltungsorganisa- tion, 1999, 240 et seq. and a recent decision of the Federal Constitutional Court in BVerfGE 111, 191, at 216 et seq.