Selbstvollziehendes Gesetz, Verwaltungsvollzugsvorbehalt und Grundgesetz

In order to combat the third wave of the COVID-19 pandemic, the federal legislature passed the Fourth Civil Protection Act of 22 April 2021. This act ordered a range of infection control measures, including contact and curfew restrictions, as well as business closures, and these measures were for the first time enacted directly through parliamentary statute. This federal emergency brake sparked a controversial constitutional debate that questioned not only the proportionality of the measures taken, but also the regulatory technique: notably the recourse to the type of self-executing statutes attracted sharp criticism ('parliamentary absolutism') - a criticism which may also be found in a more moderate form in older literature, which even resonated in the Federal Constitutional Court's Federal Emergency Brake I decision despite its rejection, and the justification of which shall be examined. Notwithstanding the consequences of self-executing statutes for legal protection, the separation of powers and sensitivity to individual cases, the assumption that they are a foreign body among types of statutes is already flawed, as they prove to be an instrument established in all branches of law (and also used in a differentiated manner), primarily for regulating private behaviour. Furthermore, the general administrative enforcement reservation held against them - to answer the central research question of this article - is not supported by the Basic Law; rather, contrary to the frequently articulated fundamental criticism, they have their place in the constitutional order and must not be confused with 'administration by statute'. Objections grounded in a conflation of self-executing and measure-oriented statutes are similarly unpersuasive. In conclusion, the article proposes, based on the findings, a set of parameters for choosing the appropriate form of action, namely the pros and cons of employing self-executing statutes. This is exemplified for the future design of pandemic control strategies and reducing bureaucracy.