New forms of distributing powers: divergent legislation in German federalism

Abstract

The practical working of the systems of competence sharing in federal states, in their various forms, usually leads to a progressive expansion of federal jurisdiction over previously shared matters, with the consequent reduction (and sometimes elimination) of the component units’ competences. Germany has not been an exception to this rule, and therefore for decades the Länder had been demanding a reform of concurrent and framework competences. After various constitutional reforms that failed to change the initial problem and forced the Constitutional Court to establish limits on the expansiveness of the Bund, the 2006 constitutional reform introduced a new system of competence sharing that enables the Länder to deviate from previous legislation of the Bund in a number of areas, and thus to pass their own legislation diverging from that of the Bund. The implementation of this new system in the last years allows us to verify if it has worked effectively, if the fears that were initially raised have been verified or not, and if it is a useful system for the German case and also for other states with similar problems in the area of shared competences.