CAB129-33 — Page 102

36664 page 102 of 488

50

26

provided this specific requirement and the general principles were not violated. An examination of the Articles shows that the Federation has been given priority in legislation of matters of public welfare and some matters fofg public health which should have been left to the Länder under the aide-mémoire, although the Federation could have certain powers of co-ordination. It should be pointed out, however, that under Article 36 the Länder are still free to legislate on these matters and that federal legislation is to be limited to regulating "only what must be uniformly regulated." This is a vague phrase and goes further that the co-ordination referred to in the aide-mémoire. This, then, is the first instance of failure of the Basic Law to conform with the aide-mémoire.

"C

In this connection the federal power in the police field must be approved by the Military Governors. Article 35 gives the Federation exclusive legislation on co-operation of the Länder in the criminal police and the establishment of a Federal Office for Criminal Affairs. It is not clear from this what powers the Federation will have in the police field. It will be necessary to wait until a federal law is introduced on the subject, if ever. It is not envisaged that the Federation will have policemen under its jurisdiction as no provision therefor is made in Article 116 which describes the direct federal administrations. The other mention of police is in Article 118c, where, in the case of a grave emergency, a Land may call in the police forces of other Länder. Should the Land in which the danger is imminent not be in a position or fail to take action the Federal Government may take over command of the police of that Land or of other Länder. The Bundesrat can at any time require the action of the Federal Govern ment to be rescinded. This would appear unobjectionable.

(d) Limitation of federal financial powers.-There can be no doubt that the Basic Law diverges from the requirements of the aide-mémoire in the following particulars:-

(i) It empowers the Federation to raise and appropriate considerable revenues, thus raising and appropriating revenue for purposes other than those for which it is responsible.

(ii) It gives the Federation power to legislate on taxes for which uniformity is not essential, nor does it limit this legislation to the setting of rates or general principles of assessment.

(iii) It gives to the Federation the collection and utilisation of such taxes, both

of which should be left to the individual Länder.

The requirements of the Aide-Mémoire were drafted in order to safeguard the rights of the Länder on, the conception that he who pays the piper calls the tune. Unless the Länder have effective control over the sources of their own revenue, their other powers will be of little use. The most effective way of achieving this control is by completely independent sources of revenue and administration thereof. This was rejected by the financial experts of the Parliamentary Council as inefficient, expensive and difficult of achievement. They therefore adopted an alternative system which is to give to the Bundesrat, which effectively represents the interests of the Länder, an absolute veto on federal financial legislation affecting the interests of the Länder. They added the provision that all respon- sible heads of the federal financial administration down to the Kreis should be appointed with the consent of the Land concerned. By these means they tried to accomplish the same ends as the Occupying Powers. Although it is clear to the members of the Parliamentary Council that their financial provisions are contrary to the actual requirements of the Aide-Mémoire they claim that they meet the reasons for these requirements in their alternative system.

(e) Provision for an independent judiciary:-The Basic Law sets up a system of Land courts for ordinary criminal and civil jurisdiction, but established a Federal Constitutional Court to perform the functions required in the Aide- Mémoire and it can thus be admitted that this requirement has been met.

}

+

(f) Power of the Federation to establish its own agencies: As has already been pointed out the Federation has only a few agencies directly under its orders: Further independent regional offices may only be set up for matters for which the Federation has legislative powers and then only with the consent of the Bundesrat (Article 116). The requirements of the Aide-Mémoire limited the establishment of federal agencies to those cases where: State. implementation is impracticable:" For this vague criterion which could cover everything, the Basic Law. uses a clearer and narrower formula. The concept is in both cases the same, and the requirement of the London Agreement appears to have been met.

1

CC