## Facts

- A fast breeder nuclear reactor project (SNR-300) in Kalkar required licensing under the Atomic Energy Act, administered by a Land authority but executed as federal law on federal commission under Art. 85 of the Basic Law.
- The project had advanced through multiple partial licenses issued by the Land of North Rhine-Westphalia.
- After the 1986 Chernobyl accident, the Land sought an extensive renewed safety reassessment before further steps toward commissioning.
- The Federal Minister for the Environment issued a written directive to the Land authority instructing it to continue the licensing process based on existing safety assessments, including prior expert evaluations.
- North Rhine-Westphalia claimed the directive impermissibly bound its administrative handling of the licensing process and violated constitutional limits governing federal directives.
- The Land brought a Bund–Länder dispute seeking a declaration that the directive was unconstitutional.

## Issues

1. How Art. 85 Basic Law allocates administrative “handling” competence (Wahrnehmungskompetenz) and substantive responsibility (Sachkompetenz) between Bund and Länder in federal-commission administration.
2. When a federal directive under Art. 85(3) can infringe a Land’s constitutional rights and be challenged in a Bund–Länder dispute.
3. Whether rule-of-law standards associated with state–individual relations (especially proportionality and fundamental-rights compliance) limit federal directive power as a competence boundary in intergovernmental disputes.
4. What procedural obligations the principle of federal comity (bundesfreundliches Verhalten) imposes when the Bund issues directives to Land authorities.

## Decision

- The court dismissed the Land’s application.
- It held that, under Art. 85, the Land retains inalienable competence to carry out administration, while substantive responsibility lies with the Bund and may be asserted through directives.
- A Land is injured in its rights only if the constitutional defect lies in the Bund’s invocation of the directive power itself (e.g., exceeding competence or violating intergovernmental structural duties), not merely in the directive’s substantive correctness.
- Rule-of-law limits developed for protecting individuals—particularly proportionality—do not operate as direct competence-delimiting standards in the Bund–Länder relationship.
- The directive satisfied constitutional requirements of clarity and did not violate federal comity in a manner amounting to a constitutional breach.
- The court recognized only an exceptional outer limit: a directive could be unconstitutional if it grossly disregards federal protective responsibility by ordering action or omission that is utterly indefensible given grave risks to significant legal interests; that threshold was not met.

## Legal Principles

- In federal-commission administration (Art. 85 Basic Law), Länder possess an inalienable competence to execute and issue administrative acts (Wahrnehmungskompetenz), while the Bund holds substantive responsibility (Sachkompetenz) and may assert it through directives.
- In a Bund–Länder dispute, a Land may rely on constitutional norms structuring the Bund–Länder relationship (competence rules and cooperative duties), not on alleged violations of fundamental rights as such.
- A Land’s claim succeeds only if the Bund’s recourse to the directive power is itself unconstitutional; the Land has no enforceable right to compel substantively “lawful” directive content in the sense of individual-rights review.
- Federal directives must satisfy a constitutional requirement of clarity: the instructed authority must be able to determine the directive’s objective meaning using available means of knowledge.
- Federal comity requires, as a rule, prior notice and an opportunity for the Land to comment, along with consideration of the Land’s position, absent urgent necessity.
- Proportionality and similar rule-of-law doctrines governing state action toward individuals are not directly transferable as internal competence limits in Bund–Länder disputes, subject only to an extreme “utterly indefensible” boundary tied to gross neglect of protective responsibility.

## Conclusion

The court upheld the federal environment minister’s directive in the Kalkar licensing process, holding that Art. 85 grants the Bund broad directive authority to assert substantive responsibility while Länder retain executional competence, and that intergovernmental challenges are confined to competence and structural-duty violations rather than substantive fundamental-rights review, subject only to a narrow extreme-limit exception.


Land N. Rhine-Westphalia v. Fed. Gov’t (Kalkar II), 81 BVerfGE 310 (Fed. Const. Ct. 1990)