The Bundesrat and the federal state system

Transcription

The federal state system
Internet
A federal constitutional body
Federalism – unity in diversity
Distinct roles and shared responsibilities
The Bundesrat
The Bundesrat and
the federal state system
http://www.bundesrat.de
Information about the federal states
http://www.bundesrat.de
Organisation and working methods
Bills and ordinances adopted by the Federation
http://www.bundesrecht.juris.de/bundesrecht/GESAMT_a.html
http://www.uni-tuebingen.de/ezff
International servers
Committee of the Regions
http://www.cor.europa.eu
European Union
This brochure invites you to find out about the Bundesrat. It is a striking splash of colour in the ranks of legislative bodies. The Bundesrat’s
composition and the range of roles it fulfils are entirely unique.
Germany’s federal system is the framework within which the
Bundesrat’s particular meaning and significance emerge.
http://www.europa.eu
Austrian Legal Information System
http://www.ris.bka.gv.at
Swiss server for legal experts
http://www.legalresearch.ch
The brochure opens with an introduction to the key traits of German
federalism, in which the “parliament of the federal states’ governments” forms a link between the central federal level and the individual federal states. This is followed by an explanation of the
Bundesrat’s composition, organisation and working methods. A brief
historical overview offers insights into the constitutional tradition in
which the Bundesrat is embedded.
An index assists readers looking for specific terms. A bibliography and
some Internet links are provided for readers who would like to do
more reading on the subject.
Bundesrat
Public Relations
11055 Berlin
Germany
www.bundesrat.de
We would be delighted to send you further
copies of this brochure or other information
material about the Bundesrat or federalism
free of charge.
Photos: Bundesrat, Press and Information Office of the Federal Government, Bernhard Kroll, Torsten Saffir
The European Centre for Federalism Research in Tübingen
is planning to develop an online documentation resource on
federalism. The Centre’s homepage offers a broad range of
links offering more information.
Printed by: www.diekoordinaten.de
ISBN: 3-923706-32-4
Subject-specific sites/Federalism
Inhalt
Contents
The Federal Council of
the Federal Republic of Germany
4
5
10
The seat of the Bundesrat
The Plenary session
Distribution of votes
The members
The President and the Presidium
Voting
Plenary sessions
The Chamber of European Affairs
The committees
The Mediation Committee
The Bundesrat’s working methods
14
14
16
17
18
20
23
24
25
27
29
The roles played by the Bundesrat
The Bundesrat – a federal body
1. Submitting opinions on draft government bills
2. Convening the Mediation Committee
3. Taking decisions on consent bills
4. Participating in addressing objection bills
5. Bundesrat draft bills
6. Statutory instruments
7. Consent to general administrative regulations
8. European Union draft legislation
9. Participation in foreign affairs
10. Right to be informed by the Federal Government
11. Other roles
34
34
35
36
36
41
41
42
43
44
45
46
47
The status of the Bundesrat
A second chamber?
The mandate
Taking decisions as a federal constitutional body
Taking decisions as a political constitutional body
Counterweight involved in monitoring the Federal Government
Counterweight involved in rectifying Bundestag decisions
Link between the Federation and the federal states
Building on a sound tradition – forerunners of the Bundesrat
Overview of legislative activities
Annex
Bibliography
Index
Internet
50
52
53
54
56
59
61
62
64
Coats of arms of the Federation
and the 16 federal states
Distribution of votes in the Bundesrat
Bibliography
Total of 69 votes
Schleswig-Holstein
2,8 million
BadenWürttemberg
Bavaria
Area: 35752 km2
Area: 70552 km2
Kiel
Mecklenburg-Western Pomerania
Hamburg
1,8 million
1,7 million
Schwerin
Hamburg
Bremen
Lower Saxony
8,0 million
Berlin
Brandenburg
Area: 891 km2
Area: 29480 km2
Hannover
Bremen
Hamburg
Area: 404 km2
Area: 755 km2
Magdeburg
Saxony-Anhalt
18,0 million
2,4 million
Dresden
Düsseldorf
Erfurt
Mecklenburg-Western
Pomerania
Area: 21115 km2
Area: 23182 km2
Hesse
6,1 million
Rhineland-Palatinate
Saxony
4,2 million
Thuringia
2,3 million
Mainz
Area: 47641 km2
Area: 34086 km2
Saarland
1,0 million
Saarbrücken
map: © Bundesamt für Kartographie und Geodäsie
Lower Saxony
Bavaria
12,5 million
Stuttgart
RhinelandPalatinate
Saarland
Area: 19853 km2
Area: 2569 km2
Saxony
Saxony-Anhalt
Area: 18417 km2
Area: 20447 km2
Baden-Württemberg
10,7 million
Each federal state has at
least three votes
Schleswig-Holstein
Thuringia
Area: 15799 km2
Area: 16172 km2
States with more than 2 million
inhabitants have four votes
Die deutschen Länder: Geschichte, Politik, Wirtschaft /
Hans-Georg Wehling (Ed.), 2nd edition 2002
Der Bundesrat im ehemaligen Preußischen
Herrenhaus / Bundesrat (Ed.), 2002
Ende des Föderalismus: Gleichschaltung und
Entstaatlichung der deutschen Länder von der nationalsozialistischen Machtergreifung bis zur Auflösung
des Reichrats / Talmon, Stefan, in: Zeitschrift für neuere
Rechtsgeschichte, 24 (2002), pp. 112–155
Der Bundesrat / Ziller, Gebhard/Oschatz, Georg-Berndt,
10th edition 1998
Munich
German federalism: past, present, future / ed. by
Maiken Umbach. – 1. publ. Basingstoke [et al.]. Palgrave,
2002
Föderalismus in Deutschland / Bundeszentrale für politische Bildung (Ed.), Informationen zur politischen Bildung,
No. 275, 2002
2. Essays on the Bundesrat
Föderalismus: eine Einführung / Sturm, Roland/
Zimmermann-Steinhart, Petra, 2005
Bundestag und Bundesrat bei der Umsetzung von
EU-Recht / Zeh, Wolfgang / In: Der Politikzyklus zwischen
Bonn und Brüssel / Derlien, Hans-Ulrich et al (Ed.), 1999,
pp. 39 – 51
Das föderative System der Bundesrepublik
Deutschland / Laufer, Heinz/Münch, Ursula, 7th edition
1997
Die Rolle des Bundesrates und der Länder im Prozeß
der deutschen Einheit / Klein, Eckart (Ed.), Schriftenreihe der Gesellschaft für Deutschlandforschung, Vol. 66,
1998
Zusammensetzung und Verfahren des Bundesrates /
Herzog, Roman / In: Handbuch des Staatsrechts der
Bundesrepublik Deutschland / Isensee/Kirchhof (Ed.),
Vol. 2, 2nd edition 1998, pp. 505– 522
Föderalismus in der Bundesrepublik Deutschland:
eine Einführung / Kilper, Heiderose, 1996
Föderalismus: Grundlagen und Wirkungen in der
Bundesrepublik Deutschland / Reuter, Konrad,
5th edition 1996
Zustand und Perspektiven des deutschen
Bundesstaates / Blanke, Hermann-Josef/Schwanengel,
Wito (Ed.), 2005
Föderalismusreform in Deutschland / Hennecke, HansGünter (Ed.), 2005
Dokumentation der Kommission von Bundestag und
Bundesrat zur Modernisierung der bundesstaatlichen
Ordnung / Deutscher Bundestag, Bundesrat, Öffentlichkeitsarbeit (Ed.), 2005
Europäischer Föderalismus im 21. Jahrhundert /
Europäisches Zentrum für Föderalismusforschung (Ed.),
2003
Der deutsche Bundesstaat in der EU: die Mitwirkung
der deutschen Länder in EU-Angelegenheiten als
Gegenstand der Föderalismus-Reform / Hrbek, Rudolf,
in: Europa und seine Verfassung/Gaitanides, Charlotte
(u.a.) (Ed.), 2005, pp. 256–273
inhabitants have five votes
inhabitants have six votes
Föderalismus: Analysen in entwicklungsgeschichtlicher
und vergleichender Perspektive / Benz, Arthur (Ed.),
Deutsche Vereinigung für Politische Wissenschaft,
Politische Vierteljahresschrift, Sonderheft, 32/2001
Das Parlament der Regierenden. 40 Jahre Bundesrat.
Eine Chronik seiner Präsidenten / Herles, Helmut, 1989
Das parlamentarische Regierungssystem und der
Bundesrat – Entwicklungsstand und Reformbedarf /
Dolzer, Rudolf/Sachs, Michael / In: Veröffentlichungen der
Vereinigung der Deutschen Staatsrechtslehrer, Vol. 58,
1999, pp. 7–77
Wiesbaden
4,0 million
North RhineWestphalia
Handbuch des Bundesrates / Bundesrat (Ed.),
New edition annually
Miterlebt – Mitgestaltet. Der Bundesrat im Rückblick /
Hrbeck, Rudolf (Ed.), 1989
3,4 million
Potsdam
North-Rhine Westphalia
Bonn
Hesse
Berlin
Berlin
3. Works of collected articles on federalism
Praxishandbuch Bundesrat: verfassungsrechtliche
Grundlagen, Kommentar zur Geschäftsordnung,
Praxis des Bundesrates / Reuter, Konrad, 1991
2,5 million
0,7 million
1. Works of collected articles on the Bundesrat
Der Bundesrat. Mitwirkung der Länder im Bund /
Pfitzer, Albert, 4th edition 1995
Brandenburg
Bremen
Index of topics
Total population 82.1 million
Source: Federal Statistical Office, 2008
Föderalismus und Integrationsgewalt: die
Bundesrepublik Deutschland, Spanien, Italien und
Belgien als dezentralisierte Staaten in der EG /
Blanke, Hermann-Josef, 1991
Abstention
Agenda
22
23, 26, 31
Bill passed by the Bundestag 28, 38f., 64
Bound by instructions
21, 27, 50
Budget
20
Bundesrat (Kaiserreich)
62
Bundestag
4, 18, 36, 44f., 47, 59ff.
Call to order
23
Casting of votes
17, 20ff.
Casting votes en bloc
20f.
Centralised state
5ff.
Chamber of European
Union Affairs
24ff., 44
Chamber of the
federal states
34, 50, 54f., 61
Checks and balances, system of controls
6ff., 56ff.
Coalition government
20
Coat of arms
23
Committees
18f., 25ff., 30, 46
– Committee members
25ff.
– Committee meetings
18, 27, 56, 64
Consent bill
28, 36ff., 59, 64
16
Division of powers
4ff., 10f., 59f.
Draft bill
35f
– Draft bill introduced by the Bundesrat
38f., 64
– Draft bill introduced by the Bundestag 36f.
– Draft bill introduced by
– the federal government
30, 35f., 64
Elections
14f., 60
European Union
11, 30, 53
Federal Constitutional Court 4, 19, 37f., 48ff.
Federal Government
4, 26, 35f., 42ff., 56ff., 61
Federal President
4, 19, 37, 48
Federal state
3ff., 40, 52f., 59
Federalism
4ff., 34, 52
Foreign policy
44ff., 57
Incompatibility
Interests of the
federal states
18
32ff., 52ff., 58ff.
Länder governments
14ff.
Länder parliaments
7
Landesvertretung, representative
office of federal state
20, 31
Legal ordinance
42f., 57, 64
Legislative emergency
47, 54
Legislative procedure
34ff., 51
Mediation Committee 27ff., 36ff., 43, 64
Meeting/session
– Bundesrat plenary session 23f., 29f., 64
– Meeting of the Chamber
– of European Affairs
24f., 44, 64
– Meeting of Bundesrat Committees
25ff., 30f., 64
– Meeting of Mediation Committee 27ff., 36
Member
– Members of the Bundesrat
14ff., 27
– Member of Bundesrat committee 25ff.
– Member of the Chamber of
– European Affairs
25
– Member of the Mediation Committee 27f.
Minute-taker
23, 29
Minutes of the meeting
21, 23, 31
Objection bill
38ff.
Official document
30f.
Opposition
14, 56
Parliamentary Council
6, 55
Parliamentary group
27
Party politics
54ff.
Permanent Advisory Council
20, 31
Plenary
13ff., 18ff., 23, 30
Plenary session
14f.
President of the Bundesrat 18ff., 22, 25, 46
Presidium
18ff., 22
Prior discussion
31
Question time
Regionalisation
Reichsrat 62
Right to information
46
9
46
Seat of the Bundesrat
14
Second chamber
51f.
Second reading
30, 36, 46
Secretariat of the Bundesrat
19, 31
Secretary-General of the Bundesrat
19, 23, 29
Speaking right
– Speaking right: Member of the Bundesrat
18, 23
– Speaking right: Member of
– the federal government
26 ,46
State of defence
47, 54
Statistics
64
Stenographers
23
Subsistence allowance
18
Vice-President
Vote
Vote-caster
18
20f., 24
21, 45
The Bundesrat and
the federal system
The Federal Council of the Federal
Republic of Germany
Author: Dr. Konrad Reuter
Editor: Secretary General of the Bundesrat
Berlin 2009 – 14th edition
16 federal states or Länder make up the Federal Republic of Germany. The federal system means that many political decisions are
taken in the federal states. This principle is enshrined in the Basic
Law. However, the Bundestag and the Federal Government cannot determine everything on their own even when it comes to
national matters at the federal level. Through the Bundesrat the
federal states also have a say in Berlin.
The Bundesrat is one of the five permanent constitutional bodies of
the Federal Republic of Germany. Alongside the other components
of the federal system – the Federal President, the Bundestag (Federal Parliament), the Federal Government and the Federal Constitutional Court – the Bundesrat is the body within the federal structure
that represents the interests of the federal states. The Bundesrat participates in the Federation’s policy decisions and thus acts as a
counterweight to the political bodies representing the federal tier,
namely the Bundestag and the Federal Government, as well as constituting a link between the Federation and the federal states. Its status and function are described in Article 50 of the Basic Law, which
since 1992 has also included an explicit reference to the European
dimension of policy:
Article 50 BL “The Länder shall participate through the Bundesrat in the legislation and administration of the Federation and in matters concerning
the European Union.”
The significance of this constitutional provision is most clearly
revealed if one first considers the backdrop to it: the way in which the
state is structured, comprising the Federation (central authority) and
the federal states (Länder) – in other words, the specific form federalism assumes in Germany. Federalism has long been the form of
state organisation adopted in Germany, creating state unity whilst at
the same time setting limits on this within the federal system, and
thus ensuring that the notion of unity is not given excessive weight.
Federal President
Bundesrat
The five permanent
constitutional bodies of
the Federation
Federal government
Federal Constitutional Court
Bundestag
Article 20 (2) BL “All state authority is derived from the people. It shall be exercised
by the people through elections and other votes and through specific legislative, executive and judicial bodies.”
4
The term “federalism” is derived from the Latin word “foedus”, which
can be translated as “alliance” or “treaty”. Federalism means forming
a federal state and cooperating within the entity thus formed: several states enter into an alliance to form one single all-encompassing
state structure (federation, confederation), whilst to a certain extent
maintaining their own characteristics as states (federal states, constituent states).
This contrasts with other forms of state organisation, such as on the
one hand the centralised state (unitarism), which does not have
autonomous sub-units, and on the other hand the confederation. The
latter is a union of states under international law, in which the individual states remain entirely independent and their union does not
per se constitute a state. The German Confederation, which existed
from 1815 to 1866, was an alliance of this type. In a federal state,
the state as a whole should be responsible for those matters that
absolutely must be regulated in a uniform manner in the interests of
the people. The federal tier of government should however restrict its
actions to this specific role, for all other matters should be regulated
by the constituent member states. As a consequence, while many
aspects in a federal system are harmonised, a range of other areas
are not covered by uniform provisions. Unity in diversity is the fundamental principle underlying any genuine federal state.
It is even stated in the constitution that this fundamental principle is
inviolable and unalterable. Article 79 (3), Basic Law provides:
“Amendments to this Basic Law affecting the division of the Feder- Article 79 (3) BL
ation into Länder, their participation on principle in the legislative
process, or the principles laid down in Articles 1 and 20 shall be
inadmissible.”
5
As long as the Basic Law remains in force, there is thus an obligation
to preserve the underlying fabric of the federal structure. However,
that does not mean that there is no need to ponder the meaning and
purpose of federalism. On the contrary, federalism would be in rather
poor shape if it were merely perceived as an unalterable system.
Modern form In 1949 the Parliamentary Council opted for the federative principle
of state of state organisation, because it also implied a further division of
political power between the federation and the federal states (vertical division of power), in addition to the classical division of power
between the legislature, the executive and the judiciary (horizontal
division of power). This twofold division of powers serves as an effective means to prevent abuse of power by any part of the system.
That is why right from the outset one of the goals of the peaceful revolution in the former GDR in 1989 was the reintroduction of the federal states or Länder in former East Germany, However, no form of
statehood is perfect – except perhaps theoretically. For that reason,
the pros and cons must always be weighed up against each other.
In a democracy, the litmus test is the response to a straightforward
question: how does this benefit the people? The focus should be on
the citizens – not on a rapid, powerful state apparatus.
Federation
Legislature
(legislation)
Executive
(government
and
administration)
Judiciary
(administration
of justice)
Länder input and participation in decision-making by the
Federation and influence of central government on the Länder
Twofold division of
powers within the
federal state system
16 federal states
6
Advantages of the federal state system compared with the
unitary state
+
Power-sharing
In a federation, the classical horizontal division of powers (legislative – executive – judicial) is complemented by a vertical division
of powers between the state as a whole and the individual constituent states. Power-sharing means control of how power is
used and protection against abuse of this power.
+
More democracy
The sub-division into smaller political units makes it easier to
grasp and comprehend the actions taken by the state, thus fostering active participation and co-determination. In addition, voters
can exercise the fundamental democratic right to vote and thus to
participate in decisions on two fronts, for in a federal state there
are elections both to the central parliament and to the parliaments
of the constituent states.
+
Leadership opportunities
Political parties enjoy greater opportunities and competition
between them is promoted, as minority parties at national level
can nonetheless take on political responsibility in the individual
states making up the federation. This offers them a chance to test
and demonstrate their leadership skills and overall performance.
+
Closer to the issues
In a federation public bodies are closer to regional problems than
in a unitary state. There are no far-flung “forgotten” provinces.
+
Closer to people
The federal state brings state structures much closer to the general public. Politicians and public authorities are much more
accessible than in a unitary state that concentrates power in an
anonymous, distant centre.
+
Competition
The constituent states always automatically compete with each
other. Competition has a stimulating effect. Exchanges of experience foster progress and serve as a safeguard, ensuring that any
mistakes are not repeated across the whole country.
7
+
Sound balance
Mutual checks and balances, coupled with respect for each other
and a need to reach compromises make it more difficult, if not
well-nigh impossible, to adopt extreme stances. As federalism
strikes a fair balance, it also has a stabilising effect.
+
Diversity
The division of the country into federal states or Länder ensures
that a whole host of economic, political and cultural centres can
exist. That offers greater scope to preserve and develop regional
customs, as well as the specific historical, economic and cultural
characteristics of an area. This diversity can give rise to greater
freedom.
Ultimately these arguments in favour of federalism prove to be advantages for each individual citizen. Whilst the federal system may certainly have disadvantages too, these benefits clearly outweigh the
drawbacks.
Disadvantages of the federal state system compared with the
unitary state
–
Lack of uniformity
The federal states’ autonomy automatically leads to differences.
Diversity is the opposite of uniformity. This can cause difficulties,
for example, for school children if their family moves to another
federal state.
–
Complicated
As there are many decision-making centres in the Federal Republic of Germany, the division of powers between the Federation and
the federal states means the various tiers of state must work
together, show consideration, exercise mutual oversight and also
respect the limits of each part of the federal structure. The ensuing intermeshing of state activities is thus complex and can be
hard for the general public to understand.
–
Time-consuming
Parliaments, governments and the public administrations of the
Federation and the Länder have to wait for input, decisions or con-
8
sent from other tiers of state, as well as engaging in lengthy negotiations with each other to reach a consensus. This can also be
highly time-consuming.
–
Expensive
Generally speaking, the cost of maintaining distinct parliaments,
governments and public administrations at the Federation and
federal state level is considered to be more expensive than running the corresponding institutions in a unitary state. It is debatable whether this assumption is correct, for it would be impossible to simply dispense with institutions in the federal states by
adopting a unitary state system. Various federal bodies would certainly have to grow accordingly and it is not clear that centralised
mammoth authorities would really be cheaper in the final analysis.
Federalism is not a relic from the days of the stagecoach but instead, A form of state
given its adaptability, a form of statehood very much in tune with our with a future
times. Nor is it a peculiarity of the German system. Looking at maps
of the world, we find a whole host of countries with a federal structure, all of which are very different from each other in the details of
how the system works and the impact this has on citizens in those
countries. For example, the countries in the following list are all federal states, as stipulated in their constitutions: Canada, the USA,
Mexico, Brazil, Argentina, Australia, India, Russia, Austria, Belgium
and Switzerland. Even such traditionally centralistic states as France,
Spain and Italy have shifted to “regionalising” their countries, which,
although it does not constitute federalism, is nonetheless a step in
that direction. And one thing is certain: a united Europe will only be
able to survive as a federative union of states, not as something akin
to a centralised state. Federalism is therefore a form of state with a
future, particularly in Europe.
“Just as the Länder have made a decisive contribution to
integrating the plurality of cultural and social traditions
into the nation-state, the regions within a united Europe
will be essential participants in allowing diversity to merge
into political unity.”
Kurt Beck,
President of
the Bundesrat
(2000/2001)
9
Division and The Basic Law ascribes particular roles to the Federation and the
intermeshing federal states in the spheres governed by the legislature, executive
and judiciary. Generally speaking, it is fair to say that the Federation
is responsible for legislation in most spheres, administration is in
essence handled by the federal states and responsibilities in the judicial sphere are closely intermeshed, involving both the Federation
and the federal states. Nonetheless, the federal states also have significant legislative responsibilities, particularly for policies on culture
and education, local government law and the police forces. Similarly
the Federation also has a fully-fledged administrative substructure in
certain areas, for example for the foreign services, the armed forces
and employment offices. Generally however the following principle
applies:
Legislation is on the whole dealt with by the Federation.
Public administration is on the whole a matter for the federal
states.
This division of responsibilities gives the Federation a powerful position, as it can establish uniform standards for all federal states and
the population at large through its overarching legislative competence.
However, the federal states – and this is an important compensatory mechanism – may participate in the Federation’s legislative
process via the Bundesrat: federal laws that particularly affect the
concerns of the federal states may only be adopted with the explicit
consent of the Bundesrat. As a consequence, on the one hand the
Länder are subject to “the will of the Federation”, which limits their
political autonomy; on the other hand, however, they can have an
10
influence on the Federation’s deliberations and thus contribute to the
emergence of this “federal will”. The Federation and the federal
states are closely interlinked.
The Bundesrat constitutes a link binding the Federation and the fed- The Bundesrat
eral states. Its role is to ensure that irreconcilable contradictions do forms a bond
not arise between the central state and the individual federal states
although responsibilities are divided between the various tiers of
state.
The Bundesrat’s role as mediator determines its constitutional status
and its composition:
The Bundesrat is a constitutional body of the federation, but it is
made up of representatives of the federal states. This in a sense
compensates the federal states for the fact that they have to a
large extent relinquished their independent legislative competence, and also grants them the right to have a say when the Federation devises administrative provisions. Through the Bundesrat
the federal states also have an opportunity to participate in matters pertaining to the European Union.
The Bundesrat is a body of the (federal) legislative, but it is made
up of members of the (federal states’) executive bodies. This
structure means that federal legislation can draw directly on the
administrative experience of the federal states.
The Bundesrat has been described as probably “the most original
German contribution to federalism”. The structure, organisation and
remit of the Bundesrat is quite unique among second chambers and
can ultimately only be understood properly if one considers the long
constitutional tradition embodied by the Bundesrat.
“The Basic Law takes the idea of federalism based on solidarity. Germans from former East Germany made a conscious decision to opt for this inner unity after the fall of the
Wall. We should understand the call for more competition
as a complement to the solidarity principle rather than as a
substitute for it.”
11
Matthias Platzeck,
President of
the Bundesrat
(2004/2005)
Who is represented in the Bundesrat, who is authorised to take part
in deliberations there, who may vote? How do the decision-making
processes work?
This chapter presents the membership and structure of the various
bodies in the Bundesrat. The focus is on presenting how the Bundesrat’s day-to-day work is done, a topic rarely addressed directly in
the media. The atmosphere, style and working methods are significantly different from those in the Bundestag: work in the Bundesrat
has a different rhythm and functions according to a distinct procedure.
The plenary session
The members
Voting
Plenary sessions
The committees
The move from On 1st August 2000 the building at Leipziger Straße 3–4 formerly
Bonn to Berlin occupied by the Herrenhaus (House of Lords), the upper chamber of
the Prussian parliament, became the Bundesrat’s seat in Berlin. There
is also a branch office in the “federal city of Bonn”. Some committees
meet there regularly several times a year.
Before August 2000 the Bundesrat’s official seat had been in the Bundeshaus in Bonn, along with the Bundestag, ever since the Bundesrat’s first constitutive meeting on 7th September 1949. Before the
Bundesrat moved into the plenary hall in Bonn, which still exists today,
the venue was used for meetings of the Parliamentary Council, which
drew up the Basic Law there in 1948/49. Next to it stood the plenary
hall of the Bundestag, which was constructed from scratch in 1949.
The plenary session
The essence of the Bundesrat is the assembly of all its members, the
plenary session. Its composition is stipulated in Article 51 of the Basic
Law:
Article 51 (1) BL “The Bundesrat shall consist of members of Land governments, which
appoint and recall them.”
That means that in order to be a member of the Bundesrat, one must
have a seat and a say in a government at federal state level. The government in each of the federal states decides which of its members will
be appointed to the Bundesrat. However, the number of full members
each federal state may appoint to the Bundesrat is determined by the
number of votes that state holds in the Bundesrat. The remaining members of the cabinets in the federal states are however generally appointed as alternate members of the Bundesrat, which means that in practice all the members of a Land government belong to the Bundesrat. All
of the c. 170 appointed members de facto enjoy exactly the same
rights, as the Bundesrat’s rules of procedure grant the same rights to
alternate and full members. The Bundesrat is a parliament of the federal states’ governments. There is no scope for the opposition in the various federal states to make its voice heard directly in the Bundesrat.
14
There is no such thing as “elections to the Bundesrat”, and thus the Bun- A permanent body
desrat does not have legislative terms as such. In constitutional parlance
it is a permanent body, whose membership is renewed from time to time
as a consequence of elections at federal state level. As a result, elections to the parliaments in the federal states always have nationwide
political significance too. As early as the 1950s the slogan was: “Your
vote in the Hesse state decides who's on the Bundesrat's slate”. Whilst
voters first and foremost determine the composition of the parliament in
their federal state and thus which party or parties will govern their federal
state, at the same time this indirectly determines who will have a seat
and a say in the Bundesrat, for the majority in each Land parliament
makes up the government of that federal state, which in turn appoints
members from its ranks to the Bundesrat. This procedure is also the
foundation stone for the Bundesrat’s democratic legitimacy, as its composition is determined by elections expressing the will of the people. The
political power exercised by the Bundesrat stems from the electorate.
Bundesrat
Land government
Landtag
(federal state parliament)
Electorate
(in each federal state)
15
States and Must all of the constituent states have the same number of reprepopulation figures sentatives in the federative body representing them at national level
– for example, with each individual state having two senators, as is
the case in the US Senate? Or would it be fairer and more democratic to take population figures as the yardstick, which would mean
that North Rhine-Westphalia, for example, would have 26 times
more votes than Bremen? An integral part of the “constitutional
DNA” in Germany is the principle of a weighting system for the
number of votes allocated to represent each of the constituent
states. Whilst the system is shaped by population figures in each
federal state, this is not the only decisive element. Each of the federal states united in the overall state structure also “counts” in its
own right. The result is a system that is a hybrid of federative and
democratic representation. However, the Basic Law definitely
wished to avoid a structure that would allow the larger federal
states to overrule the others, whilst at the same time not making it
possible for the smaller federal states to have more power than
their size would merit. When the Basic Law was adopted in 1949
each of the federal states was therefore allocated at least three
votes, those with over two million inhabitants were granted four
votes, while five votes were given to the federal states with a population of more than six million.
New rules in The introduction of the five relatively small federal states from the
the united Germany former GDR into this system cast a new light on the balance
struck between the votes allocated to small, medium and large
states. It was felt that the four largest federal states should still be
able to function as a blocking minority (one-third of all votes) in
respect of amendments to the constitution. Article 51 (2) of the
Basic Law was therefore amended in the Treaty of Unification of
31st August 1990. A fourth category of voting rights was established, allocating six votes to federal states with a population of
more than seven million.
Article 51 (2) GG “Each Land shall have at least three votes; Länder with more than
two million inhabitants shall have four, Länder with more than six
million inhabitants five, and Länder with more than seven million
inhabitants six votes.”
16
The number of votes in each of the federal states is indicated on the
front flap. The Bundesrat has a total of 69 votes and thus 69 full
members. Accordingly, 35 votes are needed for an absolute majority, which is generally necessary to adopt a decision, whilst 46 votes
are required for the two-thirds majority stipulated in certain instances.
The members
Only the Minister-Presidents and Ministers in the federal states, (or Only cabinet
Mayors and Senate members in the case of the city-states of Berlin, members from
Bremen and Hamburg) may be members of the Bundesrat. State the federal states
Secretaries who have a seat and a say in the cabinet of a federal
state are also entitled to be members of the Bundesrat. Membership
is based on a decision adopted by each federal state government; it
ends automatically if a member either leaves the Land government
or is recalled due to a decision taken by the Land government.
This means that all members of the Bundesrat have a twofold role to Dual function
play. They hold a position both at federal state and national level;
they are politicians in both the Land and at federal level. Members of
the Bundesrat take on comprehensive political responsibility as a
result. They cannot simply ignore how decisions they take within
their particular federal state will impinge on national policy, whilst in
their ministries in the federal states they experience first-hand the
consequences of policies they pursue at the national level.
Individual members are not free to simply vote as they see fit, for The mandate –
each federal state must vote en bloc in the Bundesrat. Being a mem- each federal state
ber of the Bundesrat does not therefore give members a “free man- votes en bloc
date” but nor does it imply an “imperative mandate”. Members of the
Bundesrat vote in accordance with a uniform line devised jointly by
the cabinet members in each individual federal state. They represent
their federal state.
17
If no decision can be reached on how votes are to be cast and the
representatives of a particular Land therefore do not all cast the
same vote in the Bundesrat, that federal state’s vote is not valid. Due
to the absolute majority required to adopt decisions in the Bundesrat,
the final outcome of this kind of non-uniform voting is tantamount to
the federal state casting a “no” vote or abstaining. Any member of
the Bundesrat present in the meeting can therefore undermine a vote
in favour of a motion.
Members of the Bundesrat are not remunerated for their work in the
Bundesrat. They merely receive a subsistence allowance, along with
a per-kilometre allowance for road and air travel; members of the
Bundesrat are entitled to free tickets for rail travel.
Speaking rights Members of the Bundesrat enjoy an important right, which one might
in the Bundestag even describe as a prerogative, pursuant to Article 43 of the Basic
Law: they may attend all sessions of the Bundestag and its committee meetings and have the right to be heard there at all times. Furthermore, they may also appoint “representative” to exercise this
right on their behalf. Members of the Bundestag do not enjoy similar
opportunities to provide information and present their position in the
Bundesrat.
Dual membership of the Bundesrat and Bundestag is prohibited. The
two offices cannot be combined (incompatibility).
Annual rotation All the federal states have equal rights when it comes to the most
among the senior position representing the Bundesrat: every year one MinisterMinister-Presidents President is elected to this position. The order is determined as a
function of the population figures of the various federal states and
the cycle begins with the head of government in the most populous
federal state. The Minister-Presidents agreed upon this system in
1950 in Königstein/Taunus. One of the merits of this “Königstein
Agreement” is that each of the federal states assumes the presidency once every sixteen years, although the main advantage is certainly that appointments to this position are not subject to shifting majorities and party political considerations.
18
The President’s main duty is to convene and chair the Bundesrat’s
plenary sessions. In legal terms he or she represents the Federal
Republic of Germany in all Bundesrat matters. The Bundesrat
President is assisted by two Vice-Presidents, who advise the
President in the conduct of official duties and deputise if the President is absent.
The Bundesrat President is the highest administrative authority for
the Bundesrat’s officials. The Bundesrat Secretariat, with c. 185 staff
members, is primarily in charge of providing practical back-up for the
preparation and conduct of plenary and committee meetings. It acts
under the aegis of the Secretary General of the Bundesrat and
is divided up into: Committee Offices; the Office of the President,
Parliamentary Relations; Parliamentary Service; Press and Public
Relations, Visitor Service, Petitions and Submissions; Information
Technology; Documentation; Administration; Stenographic Service.
In addition, the Basic Law ascribes a further particularly responsible Powers of the
role to the President of the Bundesrat outside the sphere of the Bun- head of state
desrat:
“If the Federal President is unable to perform his/her duties, or if Article 57 BL
his/her office falls prematurely vacant, the President of the Bundesrat shall exercise his/her powers.”
This representative role is crucial, particularly if the Federal President
is on an official visit abroad or is taking leave. In such cases, the Bundesrat President is responsible, for example, for signing bills, formally receiving diplomatic credentials from foreign ambassadors, as well
as for appointing and dismissing civil servants.
In protocol terms the Bundesrat President is often considered to rank
as “No. 2” after the Federal President because of this representational role. However, there is no binding definition of protocol rank-
19
ings in the Federal Republic of Germany. For that reason there is no
definitive answer to the question of which of the supreme representatives of the constitutional bodies (Bundesrat, German Bundestag,
Federal Government and Federal Constitutional Court) ranks second
after the Federal President, who is undisputedly the highest ranking
representative of the state in protocol terms.
The Bundesrat’s The Presidium of the Bundesrat, i.e. the President and the two Vicebudget Presidents, are responsible for drawing up the Bundesrat’s draft
budget plan, which always keeps a very tight rein on expenditure. At
around 19 million Euro, the “Separate budgetary plan 03 – Bundesrat” is one of the smallest budget items within the Federation’s
total budget, which amounted to around 261.7 billion Euro for 2006
(in other words c. 261.700 million Euro). That means per annum the
Bundesrat’s budget amounts to about 23 cents per inhabitant of the
Federal Republic.
Permanent The Presidium is assisted by a Permanent Advisory Council, which is
Advisory Council composed of the sixteen plenipotentiaries of the federal states to the
Federation. Like the Council of Elders in other parliaments, this body
advises the President and Presidium. However, it also plays a key
role in the realm of information and coordination. After cabinet meetings on Wednesdays, a member of the Federal Government regularly provides information to the Permanent Advisory Council about the
deliberations and decisions of the Federal Government.
Offices of Each of the German federal states has a representative office in
the federal states Berlin to ensure that federal state interests are taking into account by
the Bundesrat, Bundestag, Federal Government and other bodies
based in the capital. Each of these offices is headed by the respective “plenipotentiary of the federal state to the Federation”. These
plenipotentiaries are generally also members of the Bundesrat if they
are members of the government in their federal state.
Voting
Each federal state As stipulated in the Basic Law, each federal state must cast its votes
casts its votes en bloc en bloc, voting either for or against a motion or abstaining. Each indi-
vidual state government must therefore reach an agreement as to
how votes should be cast before voting takes place in the Bundesrat.
20
The way votes are cast in the Bundesrat can lead to severe tensions,
particularly in coalition governments, which can strain cohesion in a
coalition to breaking point.
The position of each federal state should be reflected in the Bun- Instructions from
desrat, not that of individual members of the Bundesrat. The rules on the governments in
casting votes en bloc are also there to ensure that votes by members the federal states
of a federal state do not simply cancel each other out. The government of each federal state is the only body authorised to issue voting
instructions. As laid out in the Basic Law, neither the Minister-President (who is entitled to issue guidance within the federal state) nor
the parliaments in the federal states may issue such instructions. As
a result the governments of the federal states bear parliamentary
responsibility and can therefore also be “ousted” by the parliaments
in the federal states in response to positions they adopt in the Bundesrat.
The votes of a federal state are cast by its Bundesrat members. Gen- The vote-caster
erally speaking, the federal state government decides before a Bundesrat session which of the members will cast the votes; alternatively, members decide themselves in the course of the plenary session.
Usually votes are cast by just one member for each federal state,
known as the vote-caster. He or she casts all the votes for the federal state in question, even if no other representatives from his or her
federal state are in attendance at the meeting. In almost all cases a
decision by the federal state government stipulates how the federal
state’s votes will be cast in the Bundesrat. However, sometimes the
cabinet grants the vote-caster discretionary powers to vote as he or
she sees fit, in order to ensure that he or she can reach an agreement
with other federal states, has scope to consider possible compromise solutions or can take into account new circumstances that have
arisen since the cabinet meeting.
The Basic Law expects that votes will be cast in a uniform, en bloc
manner and respects the practice of vote-casters determined independently by the federal states; it does not encroach on the constitutional prerogatives of the Länder with prohibitions and stipulations
on arrangements in this domain. In keeping with a 2002 ruling from
the Federal Constitutional Court, this conception of the Basic Law
signifies that another member of the Bundesrat from the same fed21
eral state may at any time object to the votes cast by a vote-caster. In
such cases, the fundamental conditions for the vote-caster system to
work no longer apply. Should this situation arise in a meeting, the Bundesrat President records the votes of each individual member of the
Bundesrat as a vote for the whole federal state, provided that another member of the same federal state does not cast a contradictory
vote. However, if the votes cast by a federal state are not all either in
favour of or against a motion (or indeed abstentions), the vote from
that federal state is not valid; the divided position of that federal state
is not taken into account in the outcome of the Bundesrat vote.
Decisions only with In the Bundesrat it is not really possible to adopt a “neutral stance”
an absolute majority by abstaining from a vote. Pursuant to Article 52 (3) of the Basic
Law, decisions in the Bundesrat may only be adopted with an
absolute majority, whilst a two-thirds majority is required for amendments to the constitution. This means that abstaining from a vote is
tantamount to voting against a motion – and the substantive impact
of this type of vote depends on the balance of all votes cast.
Votes In the Bundesrat voting is generally by a show of hands. Because of
the large number of votes to be taken in each session, the Bundesrat
-President generally asks only for a vote in favour of a motion and
thus determines if there is a majority or a minority for a motion. In
other words, separate voting rounds are not held to count votes
against a motion and abstentions, for the distinction between these
two voting options is not relevant in establishing whether there is an
absolute majority. A “roll-call vote of the federal states” is taken when
a vote is held on amendments to the constitution or on other particular important decisions. The federal states then vote in alphabetical
order by acclamation. In such cases the votes cast are recorded in
the minutes of the meeting. Secret votes are not envisaged in the
Bundesrat’s rules of procedure.
Dieter Althaus,
President of
the Bundesrat
(2003/2004)
“We need a reform of the federal system… above all there is a
need to correct erroneous developments and recall once again
the principles originally spelled out in the Basic Law: subsidiarity
and autonomy for the federal states and municipalities, reinforcing
these fundamental principles and breathing new life into them.”
22
Plenary sessions
On Fridays at 9.30 a.m. the Bundesrat comes together for its public plenary sessions, which are usually held every three weeks or
more frequently. Members take their seats in sixteen blocks of
seats. There are no party political parliamentary groups. The seats
are arranged in alphabetical order according to the names of the
federal states – as are the coats of arms adorning the front wall of
the room. Facing the members, on a slightly raised platform, are the
President, the Secretary and the Secretary General of the Bundesrat; members and representatives of the federal government sit
to the left and right of them on two longer rows of seats, with a section for Bundesrat staff on the left too. Comments are made from a
microphone at the speaker’s desk. The stenographers are seated in
front of this desk.
The calm tone usually found in deliberations here is a particular hall- Matter-of-fact
mark of the Bundesrat’s plenary sessions. The atmosphere could debating style
well be described as cool rather than overheated; people talk calmly and sedately, focussing on the facts. Discussions also remain
matter-of-fact in debates with representatives of the Federal Government, even though there are sometimes considerable differences of opinion. Interjections are rare, the meeting never needs to
be called to order, and even now when more lively debates are
being explicitly encouraged, it is unusual to hear expressions of discontent or applause, which until the 90s were more or less considered poor form.
The generally comprehensive programme of issues to be Brisk approach
addressed in the meeting – 40, 50, sometimes even over 80 points to the agenda
on the agenda – is tackled briskly and efficiently. The meeting usually focuses on one or two issues, which are addressed in detail.
Speakers on the other agenda points simply submit declarations
explaining and substantiating their government’s decisions. Often
these are written declarations, which are not presented orally in the
plenary, but are instead simply noted in the minutes and can be
consulted subsequently in the session report. Whenever possible,
votes on several issues are taken together to save time and ensure
that endless individual votes are not required. Usually the President
can adjourn the meeting after three to four hours.
23
Impartial
The Bundesrat is sometimes referred to as the “House of Lords”,
the “Upper Chamber” or as a “well-tempered parliament in which
everything is smaller, quieter, more refined”. One could debate
whether such descriptions are always accurate; however it is certainly true that efforts to drum up votes or set a particular mood are
generally to little or no avail due to the special features of the Bundesrat’s decision-making procedures. Impartiality is therefore one
of the prime concerns in the Bundesrat. The rules of procedure
take it for granted that members will be cooperative and show consideration in procedural manners, and dispense entirely with provisions on many aspects usually governed by detailed rules in other
parliaments. Guidance is provided in these cases by the “customary practice of the assembly”. The idea is to reach agreements in
dealing with official business instead of adopting a confrontational
approach, as even without specific rules no decision can be
attained by “fighting matters out in a vote”.
Careful
preparation for
votes
While the tone in the plenary may be calm, the meetings are anything but leisurely. Given the plethora of agenda points to be examined, the procedure is so dense and the votes are taken so rapidly
that even knowledgeable observers in the public gallery can
scarcely keep up. This brisk pace is possible because the meetings, and particularly the votes, are prepared very carefully and precisely. As a result debates are very much focused on the relevant
issues, even if the debating style is not exactly spectacular.
Decisions that are to have an external legal effect must be adopted by the Bundesrat plenary session. There is one exception to this
general rule: Article 52 (3a) of the Basic Law states that the Bundesrat may create a Chamber of European Affairs for matters concerning the European Union; this chamber’s decisions have the
same effect as decisions of the Bundesrat itself. The Chamber
deals with urgent and confidential matters pertaining to the European Union, particularly draft legislation. However, so far the Chamber of European Affairs has held very few meetings.
24
It is only convened at the express request of the President of the
Bundesrat. The purpose of this arrangement is to avoid having to
arrange special sessions of the Bundesrat. Meetings of the Chamber of European Affairs are public, although it may meet in camera
if confidential issues are to be addressed. Each federal state
appoints one member of its government to the Chamber, but has
the same number of votes in this body as in the plenary. The Chamber is thus a kind of miniature Bundesrat to deal with particular circumstances. It may also adopt decisions without holding a meeting, using an alternative written procedure instead.
The committees
The work done in the committees lies right at the heart of parlia- Pooled
mentary activity. Every piece of legislation, whether it is initiated by expertise
the Federal Government, the Bundestag or a federal state, is first
examined in the committees. Ministers from the federal state ministries, who are well-versed in the subject-matter, or officials from
their ministries go through the legislation “with a fine-tooth comb”.
Each federal state appoints a member to each committee and has one The committees
vote there. The Bundesrat has 16 committees. Their areas of respon- do the groundwork
sibility correspond in essence to the portfolios of the federal ministries.
Thanks to this system the Federal Government’s expertise is directly
complemented by that of the Bundesrat and the federal states.
The heads of the Länder governments generally represent the fed- “Political
eral states in the Foreign Affairs Committee and the Defence Com- committees” and
mittee, which are therefore described as “political committees”.
expert committees
Committee on
Foreign Affairs
Committee on
Defence
Agricultural
Committee
Committee on Labour
and Social Policy
Committee on European
Union Questions
Committee on Family and
Senior Citizen Affairs
Finance Committee
Committee on Women
and Youth
Committee on Health
Committee on
Internal Affairs
Committee on
Cultural Affairs
Committee on Urban
Development, Housing
and Regional Planning
Committee on
Legal Affairs
Committee on the Environment, Nature Protection and Reactor Safety
Committee on Transport
Committee on
Economic Affairs
In contrast, the ministers in charge of the relevant ministries attend
meetings of the expert committees, such as the Committee on Economic Affairs or the Finance Committee. All Committee members
may be replaced by “representatives”, i.e. experts from the ministries. This facility is used especially frequently in the expert committees. Some committees almost always meet as civil servant
groups. The “representatives” may rotate during the meeting, so
that the appropriate experts from the federal states are involved for
each specific point on the agenda. In the Committee on the Environment, Nature Protection and Reactor Safety, for example participants might include experts specialised in soil protection, water
resources management, protection against dangerous substances,
safety in nuclear facilities, waste disposal or emissions abatement.
Practical The focus in these committees, which are of course not apolitical,
precision work is not so much on spectacular matters but instead on practical pre-
cision work. The very last details of draft legislation are discussed
there; this is where the federal states can help to shape and
improve national and European legislation, whilst also exercising
scrutiny of such legislation. The good reputation that the Bundesrat
committees enjoy is rooted in the rock-solid expert knowledge
assembled in the committees, coupled with the experience about
enforcement gleaned by the executive in each federal state, as
these executive bodies are both close to the citizens and close to
the actual impact of implementation.
Civil servants
from the
federal ministries
participate too
Part of the ongoing dialogue between the Federation and the federal states occurs in the committees. The Federal Chancellor and
the Federal Ministers are entitled – and at the request of the Bundesrat are obliged – to attend committee meetings (as well as plenary sessions). They have the right to speak at any time. “Envoys of
the Federal Government”, i.e. civil servants from the federal ministries, may also attend the meetings. The relevant experts from the
national executive and the federal states’ executive bodies all sit
together around the same table in the Bundesrat’s committee
rooms. Meetings of the committees are held in camera, because
discretion is crucial to ensure open and candid discussions, and
because confidential matters may be on the agenda.
26
Legislation is developed in a cooperative process involving both the A bridge between
Bundestag and the Bundesrat. Approximately half of all bills – con- the Bundestag
sent bills – can only enter into force if both assemblies agree. The and the Bundesrat
role of the Mediation Committee is to reach a consensus if there are
differences of opinion concerning these bills, or relating to objection
bills.
This is a joint committee in which the Bundestag and the Bundes- Joint Bundestag
rat are equally represented. Each federal state has one seat, and the and Bundesrat
remaining committee members making up the other half of the group committee
come from the Bundestag, which allocates its seats as a function of
the size of the various parliamentary groups. As there are 16 federal
states the committee has 32 members. A named alternate is appointed for each member, but alternates may only attend meetings if the
member they represent is unable to attend. The purpose of this is to
limit the number of participants at the meetings. Each parliamentary
group and each of the federal states may replace their representatives at most four times in the course of one legislative term of the
Bundestag. The meetings are strictly confidential. They are conducted by one of the two committee chairpersons, one of them a member of the Bundesrat, the other a member of the Bundestag. The two
chairs take turns in chairing the meeting every three months and may
replace each other if necessary.
Bundesrat
Bundestag
Members of the Committee, including those from the Bundesrat, are Party political
not bound by instructions. It would however be unrealistic to belie- balance of power
ve the Committee could simply disregard the party political balance
of power, for the Mediation Committee’s work is only successful if
its proposals are ultimately adopted by the Bundestag and the Bundesrat.
27
Cases where The Mediation Committee only becomes involved if it is called upon
mediation occurs by the Bundesrat, the Bundestag or the Federal Government to
address a particular bill. As a consequence of the various phases in
the legislative process, the Bundesrat is automatically the body that
generates the most work for the Mediation Committee. The Bundesrat can refer all bills adopted by the Bundestag to the Mediation
Committee. The Bundestag and the Federal Government may only
convene the Committee after the Bundesrat has refused to approve
a consent bill. A series of three mediation procedures may in some
circumstances be required for this category of bills. That is however the upper limit, for each constitutional body is only entitled to
refer the same bill to the Committee once.
Mediation Committee decisions are taken on a majority basis. All
members do not by any manner of means have to support a particular “consensus proposal” – the term used to describe all the Committee’s decisions. In accordance with procedural rules, the mediation process can lead to four different outcomes:
The Committee may recommend that a bill passed by the Bundestag be revised, i.e. that provisions not acceptable to the Bundesrat be reformulated, that additions be made or sections
deleted.
Proposals
A bill passed by the Bundestag may be confirmed. In this case
draft amendments submitted by the Bundesrat are rejected.
The proposal may be made that the Bundestag repeal the bill in
question. This happens when the Bundesrat rejects a bill in its
entirety and succeeds in having this position accepted by the
Mediation Committee.
Mediation Committee proceedings may be concluded without a
compromise proposal being submitted. For example, this occurs
when it is not possible to reach a majority decision in the Committee as there are an equal number of votes in favour of and
against a proposal.
Not a The Mediation Committee may only make proposals to resolve con“super-parliament” flicts between the Bundesrat and Bundestag, but cannot adopt bills
itself. It is not a “super-parliament”.
28
There are days when everything is quiet in the Bundesrat. Whilst Many centres of
there is a constant flurry of people coming and going in the Bun- activity yet still speedy
destag, the Bundesrat seems to be having a break. But appearances can be misleading. Two factors characterise the Bundesrat’s
working methods and make it different from other legislative bodies:
the twofold functions of its members and the deadlines set for the
most important decisions. As a consequence, the Bundesrat’s work
is carried out under permanent time pressure, and is mainly done
in the capitals of the federal states and not at its seat in Berlin.
In the plenary hall of the
Bundesrat the members are
seated in alphabetical order
in 16 “Länderblocks” with
six seats each. There are no
party political groups. The
Secretary and the Secretary General of the Bundesrat sit next to the Bundesrat President to assist
him/her in chairing the
meetings and counting the
votes.
The members and representatives of the Federal
Government sit to their
right and left. Other Bundesrat staff also sit on the
left-hand side. There are
three blocks of seats from
which guests of honour, visitors and journalists can follow the proceedings.
Tight deadlines The extremely short deadlines set for deliberations on laws – six
for discussions weeks (in certain cases three or nine weeks) for the first reading,
three weeks for the second reading and two weeks for objections
– compel the Bundesrat to work at a strenuous pace. The amendments to the constitution in 1994 did not do away with this time
pressure, but simply somewhat alleviated it for the first reading. A
new nine-week deadline for opinions was introduced. It applies to
bills amending the Basic Law or transferring sovereign rights to the
European Union or international organisations. In addition, the Bundesrat may call for the deadline to be extended from six to nine
weeks “for good cause”, particularly if a bill is especially lengthy.
About 13 The dates of plenary sessions are laid down in advance for each
meetings a year calendar year with due consideration to the weeks in which the
Bundestag is in session. About 13 meetings are held each year at
three-week intervals. The Federal Government submits its draft proposals to the Bundesrat six weeks before these dates (or three or
nine weeks beforehand for the exceptional cases stipulated in the
constitution). Drafts from the Bundestag are sent three weeks prior
to the plenary session. All drafts are passed on immediately to the
appropriate committees. As far as possible they are printed on the
day they are received and then distributed to members. The committees must complete their deliberations two weeks before the
plenary session. That means that the committees have only three
weeks to prepare in the case of draft bills from the Federal Government (in the aforementioned exceptional cases less than one
week or six weeks), whilst they have less than a week to consider
draft bills from the Bundestag.
Preparation in the These extremely short deadlines are only acceptable because the
federal states committee members and experts from the ministries in the federal
states can seek out information from other sources before the draft
legislation is received. Nonetheless, the actual decisions can only
really be prepared once the committees have received a copy of the
draft bill. Prior to the committee meeting, the various ministries in
each federal state need to reach an agreement on what their federal state’s position will be; the cabinets in the federal states also
have to address the key points in draft legislation at this juncture if
the issues are of a political nature.
30
Recommendations for the plenary are drawn up on the basis of Political decisions by
intensive discussions in the Bundesrat committees. The secretary the governments in
of the lead committee compiles these into an official recommenda- the federal states
tions document, which forms the basis for further decisions in the
federal states’ capitals. In formal terms the cabinets in the federal
states now have to address all the draft legislation and recommendations included on the agenda of the Bundesrat. However, in practice other civil servant groups work upstream of each cabinet, so
that only significant or controversial matters must be decided upon
in the cabinet. As well as deciding upon additional motions to be
tabled, the cabinets of each federal state stipulate on a case-bycase basis whether the members of the Bundesrat shall be bound
by instructions and how votes shall be cast.
Two days before the plenary session, officials in the federal states’ Search for allies
representative offices discuss the meeting once again with senior
officials from the Bundesrat Secretariat and the Permanent Advisory Council in the light of cabinet deliberations. At this preparatory stage there is of course also lively contact between the federal
states, with a view to finding allies to support their position. A short,
confidential meeting of Bundesrat members, known as the “preliminary discussion”, is regularly held immediately before the plenary
session.
Decisions on the individual draft bills are adopted in the public Official documents
session. The Federal Government or other competent bodies are
notified on the day of the plenary session and the results of the
votes are published subsequently as an official document, along
with the minutes of the meeting. Committee deliberations for the
next plenary session generally begin again in the week after a plenary session.
31
The federal states are entitled to have their say at the federal level,
particularly if their interests are affected; that is precisely why the
Bundesrat exists. Although this sounds simple, it is not easy to put
into practice.
The next chapter addresses the question of the work carried out by
the Bundesrat and the rights it enjoys.
1. Submitting opinions on draft government bills
7. Consent to general administrative regulations
9. Involvement in dealing with foreign affairs
10. Right to be informed by the
Federal Government
11. Further roles
The Bundesrat is a federal body that shares responsibility for overall
federal policy. It is not a “chamber of the federal states” (i.e. a body
at the federal state level of the system), even though this expression
has crept into common parlance. The Bundesrat’s role as a federal
body extends exclusively to exercising federal powers and assuming
federal responsibilities.
Not a “chamber of The Bundesrat is not responsible for dealing with the functions to be
the federal states” carried out by the federal states. That means it is also not a coordi-
nating body to address problems and concerns that may perhaps be
dealt with in a harmonised or coordinated manner by all the federal
states. For example, the federal states are responsible for setting the
dates for school holidays. It makes sense for the federal states to take
a coordinated approach on this question to ensure school holiday periods do not begin at the same time throughout the country, which
would cause chaos on the road network and in holiday areas. This kind
of “holiday regulation” is adopted by the federal states directly (to be
more precise, by the Permanent Conference of Ministers of Education
of the Federal States) without any Bundesrat involvement. This type of
subject-specific Conference of Ministers exists for all the ministries, as
well as for the heads of government of the federal states in the form
of the Conference of Minister-Presidents. The Bundesrat makes every
effort to ensure its deliberations are not linked to discussions in these
subject-specific Conferences of Ministers, in order to prevent the powers and responsibilities of the Federation and the federal states from
becoming intermingled; that would blur the distinction between the
responsibilities of the various tiers of state even more than is already
the case within the “cooperative federalism” system.
More than a simply The Bundesrat’s areas of involvement relate to legislation and adminadvisory role istration, as well as to policy on the European Union; in other words
the whole sphere of state activity by the federal level in crafting policy. The Basic Law refers in Article 50 to “participation”, but uses this
term in a sense much broader than simply a supportive, advisory role
of assistance. The participation may involve simply advising the Bun34
destag or the Federal Government, but it may also involve playing a
much more active role in actually shaping policy and can even signify that the Bundesrat is empowered to take decisions on its own –
depending on the details of the individual provisions in the constitution governing this participation.
1. Submitting opinions on draft
government bills
In the Federal Republic of Germany most bills are initiated in the form The Bundesrat has
of draft bills from the Federal Government. The Bundesrat has the the “first say” on draft
“first say” in the parliamentary processing of executive bills. The government bills
Basic Law stipulates that the Federal Government shall first submit
its draft bills to the Bundesrat (the draft budget is the only example
of legislation that must be submitted to both the Bundesrat and the
Bundestag at the same time). The Bundesrat is entitled to submit an
opinion on this draft legislation within a six-week deadline (although
in certain cases a deadline of three or nine weeks applies). The Bundesrat makes use of this right in virtually all cases. Review and discussion of legislative proposals submitted by the government are
two of the Bundesrat’s primary roles. The experience and insights
gleaned by the federal states in the implementation of laws, almost
all of which are enforced by them, are incorporated into federal legislation in this first reading. In this context the executive bodies in the
federal states conduct an intensive dialogue with the federal executive. The Bundesrat’s checks-and-balances role in the federal system
of government is manifested particularly clearly in this setting.
The Bundesrat examines the draft bills in its committees, taking all
relevant aspects into account: constitutional, technical, financial and
political. It often proposes amendments, additions or alternative solutions. Frequently the opinion is simply “no objections”. If a draft bill is
rejected in its entirety by the Bundesrat, the Federal Government
rarely submits the bill to the Bundestag nonetheless.
At this stage in the legislative procedure, the Bundesrat’s assessment of a bill is not binding on the Federal Government and the Bundestag. However, this initial assessment is an important indicator of
35
what the Bundesrat’s position is likely to be when it has the last word
in the second reading. The Bundesrat’s opinions can therefore not
simply be ignored. The Federal Government formulates its view on
these assessments in a written “counter-statement”. The draft bill, the
Bundesrat’s opinion and the government’s counter-statement are
then all submitted to the Bundestag.
The President of the Bundestag must submit all legislative decisions
adopted by the Bundestag to the Bundesrat. In this second reading,
the issue is discussed first of all in the committees, which in particularly assess whether the Bundesrat’s opinion in the first reading has
been taken into account and whether or not the Bundestag has introduced other amendments. If the Bundestag’s decision on the legislation is based on a draft bill initiated by the Bundestag only this
“second reading” occurs, even though in that case the term is actually a misnomer.
If the Bundesrat is not in agreement with the version of a bill passed
by the Bundestag, it may refer the matter to the Mediation Committee within a period of three weeks. The Bundesrat’s submission to
the Mediation Committee, which must be adopted by the plenary
session with an absolute majority, includes specific proposals for
amendments along with detailed substantiation of these proposals.
Bills that have a special bearing on the interests of the federal states
cannot become law unless the Bundesrat gives its express approval.
Legislation in this category cannot be passed if the Bundesrat votes
definitively against a bill. This rejection of a bill cannot be overturned
by the Bundestag. In that case, the only remaining recourse for the
36
Bundestag and the Federal Government is to refer the matter to the
Mediation Committee in an attempt to reach a consensus. That
means that the Bundestag and the Bundesrat must agree on consent bills if legislation is to be adopted.
The provisions of the Basic Law indicate which bills require Bundesrat approval. They can be classified in three groups:
Bills amending the constitution. These require Bundesrat consent
in the form of a two-thirds majority vote in favour of adoption.
Bills that have a particular impact on the finances of the federal
states. On the revenue side these primarily include all bills relating
to taxes for which all or part of the revenue accrues to the federal
states or local authorities: for example income tax, value-added
tax, trade and motor vehicle tax. On the expenditure side this category comprises all federal bills that oblige the federal states to
make cash payments, provide benefits equivalent to cash payments or provide comparable services to third parties.
Bills that impinge on the organisational and administrative jurisdiction of the federal states.
In terms of the number of bills that fall into this category, the last
group of bills mentioned above is particularly significant; that is
because the whole bill requires the consent of the Bundesrat if a bill
contains even one binding provision of this type. This holds, for example, when federal law prescribes certain jurisdictional arrangements,
forms, time limits, administrative fees, types of document delivery or
new authorities. Even bills that in essence do not affect the interests
of the federal states, such as international treaties or bills on defence
issues, may nonetheless require Bundesrat consent due to these
individual clauses.
The 2006 federalism reform granted the Länder the right in bills
adopted by the federal states to regulate the establishment of
authorities and administrative provisions in a manner that differs from
federal legislation. Bundesrat consent is therefore only necessary if
a federal bill exceptionally comprises provisions that do not offer
scope for the federal states to regulate the matter differently, due to
a particular need for uniform regulation across the country (Art. 84
(1) BL).
37
Taking decisions on consent bills
Federal government
Bundestag
Bundesrat
Draft bill
Opinion
Counter-statement
Decision by Bundestag
Bill passed
Bill rejected
Bill fails
Decision by Bundesrat
Adoption
Referral to MC
Rejection
Bill fails unless the federal government or the Bundestag
refer the matter to the Mediation Committee
Mediation Committee (MC)
No amendments proposed
Amendments proposed
Adoption of the amended bill
Decision by the Bundesrat
Adoption
Rejection
Bill fails unless the federal government or the Bundestag
refer the matter to the Mediation Committee
Counter-signature
Federal President:
Signature and
promulgation of law
Bills may be introduced in the Bundestag by the federal government, the
Bundesrat or by members of the Bundestag (Article 76, sub-section 1,
Basic Law).
This flow chart depicts the procedure for a bill introduced by the federal
government (the most frequent scenario for legislation).
Bills initiated by the Bundesrat are submitted to the Bundestag together
with an opinion from the federal government. Bills introduced by the
Bundestag (by political groups or one or more Bundestag members)
are submitted to the Bundestag directly. The procedure in the Bundestag
(and after deliberations there) is identical to the procedure for bills
initiated by the federal government.
Participating in addressing objection bills
Federal government
Bundestag
Bundesrat
Draft bill
Opinion
Counter-statement
Bill passed
Bill rejected
Bill fails
Approval
Referral to MC
No amendments proposed
Amendments proposed
Adoption of amended bill
Agreement
Objection with
absolute majority
Objection overridden
with absolute majority
Objection overridden
with 2/3 majority
Objection not
overridden
Bill fails
Counter-signature
Federal President:
Signature and
promulgation of law
Objection with
2/3 majority
Objection not
overridden
Bill fails
When is a bill The Bundesrat can always only vote “yes” or “no” to a bill in its
a consent bill? entirety, but is not entitled to partially reject a bill i.e. it may not delete
individual provisions. If there is any dispute as to whether Bundesrat
consent is necessary, the Federal President decides in the first
instance when promulgating legislation whether a particular bill is a
consent bill. However, a definitive and binding decision can only be
taken by the Federal Constitutional Court. That is also the forum
where a binding decision may be taken on whether the right of consent of the Bundesrat has been dealt with correctly in a particular
instance. In some cases, when bills only require consent due to the
procedural provisions, the legislation is divided into separate parts:
a procedural bill that requires Bundesrat consent and a bill on the
actual substance, which does not require consent. While the Bundesrat may submit an objection to the bill on the actual substance,
this objection can be overturned by the Bundestag. The case law of
the Federal Constitutional Court states that bills may be divided in
this manner at the discretion of the legislator. To date the Federal
Constitutional Court has not yet had to give a ruling on the specific
extent of these discretionary powers. The Bundesrat assumes that
this system has been applied inappropriately if the subject-matter
addressed means the bills ought to be combined in a single piece
of legislation.
Significant influence The Bundesrat’s constitutional status and significance are primarily
on legislation rooted in its right of co-decision on consent bills. This right means
the Bundesrat has a great deal of influence on legislation. Until the
2006 federalism reform, around half of all bills required Bundesrat
consent. The reform aims to reduce this high percentage by granting greater legislative competence to the federal states, as well as by
introducing new provisions on waivers in the field of administrative
procedures. Consent bills will however continue to make up a substantial percentage of legislation, particularly as new cases requiring consent have been introduced in the area of finance. The Bundestag will not be able to decide on its own about these bills in the
wake of the reform, but must take the Bundesrat’s opinion into consideration. However the Bundesrat cannot have an impact on its
own either, particularly as a “no” vote hinders new developments,
but does not per se play an active part in shaping a policy area.
40
Rather than going their own way, both assemblies ought to show
moderation and seek a fair balance, demonstrating mutual understanding and reciprocal consideration, values that both the Bundestag and the Bundesrat must respect as political imperatives in
the federal system. That is indeed what happens in practice. In fact,
as the statistics on page 64 reveal, few bills have failed as a result
of being rejected by the Bundesrat.
The Bundesrat is also involved in the genesis of bills that do not
require its consent. These are described as objection bills. Here
however it can only strenuously urge the Bundestag to adopt a particular approach. If the Bundesrat submits an objection within two
weeks of the conclusion of mediation proceedings, the Bundestag
has to submit the bill to another reading. If the Bundestag does not
share the Bundesrat’s reservations, it can override the objection
with an absolute majority of its own (described as the “chancellor
majority”). If the Bundesrat’s objection was based on a two-thirds
majority, a corresponding two-thirds majority of votes cast in the
Bundestag is required to override it (this majority must also represent a majority of the Bundestag’s members). If the objection is
overridden, the bill in question may be enacted. However, if there
is not a sufficient majority in the Bundestag to reject the objection,
the bill cannot become law, as is the case if the Bundesrat does not
approve a consent bill.
The Bundesrat is entitled to submit its own draft bills to the Bundestag. The draft bills are submitted to the Federal Government to
allow it to table its comments. Within six weeks (or in certain cases,
within three or nine weeks), the bills are then passed on to the Bundestag.
The Bundestag considers this draft legislation using the same procedure as for draft bills introduced by the Federal Government and
41
initiatives from the Bundestag. The Bundestag is free to decide as
it sees fit, and may thus also refuse to adopt a bill. It is not possible
to refer the matter to the Mediation Committee with a view to overcoming the Bundestag’s rejection of such bills. This aspect of procedure is unfavourable for the Bundesrat, which may explain why it
initiates relatively few bills. However, the Bundesrat has been successful in having measures adopted to improve legal, customer and
consumer protection. The following provisions are based on legislation initiated by the Bundesrat: the right of revocation for hire-purchase transactions, prohibition on agreements concerning the
place of jurisdiction, the obligation to comply with formal criteria in
purchases of real estate (to protect purchasers) and more rigorous
state oversight of old people’s homes. The Bundesrat also set the
ball rolling on combating abuse of asylum law and fighting organised crime, as well as introducing proposals on providing cover for
long-term care needs.
The Bundesrat also uses the parliamentary instrument of resolutions as a political complement to its right to initiate legislation.
These are requests, generally addressed to the Federal Government, that aim to draw attention to problems that have not yet been
adequately addressed in legislation.
The Highway Code, which affects almost everyone, is not passed
by the Bundestag; instead this legislation is adopted by the Federal Minister of Transport with Bundesrat consent. It is an example of
federal administration involving the Bundesrat.
Statutory instruments are binding provisions on the implementation
of bills. Bundesrat consent is stipulated for most statutory instruments from the Federal Government and individual federal ministers. A considerable part of the Bundesrat’s workload involves
examining such legislation, a process that only rarely involves the
Bundestag. Most of the work in this field is done in the committees.
These provisions, which are generally less politically significant, do
not take up much time in the public plenary sessions. The right of
42
consent signifies that the Bundesrat is entitled to determine the
content of statutory instruments on an equal footing with the other
bodies involved. In practice, consent is often granted “subject to”
certain amendments. It is not possible to refer the matter to the
Mediation Committee.
Since the amendments to the constitution in 1994, the Bundesrat
has enjoyed a formal right of motion for statutory instruments. It may
submit drafts of statutory instruments that require Bundesrat consent to the Federal Government.
As becomes clear in the following list of examples, these statutory
instruments address a broad range of policy areas: Road Traffic
Regulations, Federal Ordinance on Species Protection, Ordinance
on Hospital Care Charges, Ordinance on Utilization of Land for
Construction, Ordinance on Work in Pressurised Environments,
Ordinance on Dangerous Substances, Ordinance on Hazardous
Incidents, Ordinance on Minimum Hygiene Standards for Poultrymeat and Ordinance on Quantitative Analysis Methods for Binary
Textile Fibre Mixtures.
7. Consent to general administrative
regulations
Just like statutory instruments, numerous general administrative regulations also depend on Bundesrat consent, if these provisions
addressed to the administrative authorities affect the powers and
responsibilities of the federal states. For example, the “Schedule of
Exemplary Fines” for regulatory traffic offences and the “Points
Schedule” for forfeiture of a driving licence were both enacted with
the consent of the Bundesrat.
43
With the growing integration of the European Union, national law is
increasingly being influenced by legislation adopted in Brussels.
The decision-making body is the Council of Ministers, in which each
Member State is represented by a member of the government. Pursuant to Article 23 (2) of the Basic Law, the Bundestag and,
through the Bundesrat, the federal states participate in the process
whereby the Federation reaches a position concerning specific
European Union matters. The Federal Government is therefore
charged with providing the Bundestag and the Bundesrat with
comprehensive information on all European Union affairs as rapidly
as possible.
After extensive consultations in the committees, the Bundesrat – in
urgent cases the Chamber of European Affairs – gives its opinions
on the European Union draft regulations and directives submitted
to it. If this European Union legislation affects matters which fall
within the jurisdiction of the Federation at the national level, the Federal Government must give “due consideration” to the Bundesrat’s
opinion in its decisions in Brussels. If such legislation primarily
affects the legislative jurisdiction of the federal states, the structure
of Länder authorities or their administrative procedures, then the
Bundesrat’s assessment must be taken into account as the “decisive opinion”. In other words, in such cases the Bundesrat really has
the final say in determining the German position in the Council of
Ministers. In this context however, the Bundesrat also has a duty to
“comply with federal responsibility for the nation as a whole”. This
phrase refers to jurisdiction in the key policy areas of integration,
foreign affairs and security. If the Bundesrat’s opinion conflicts with
that of the Federal Government, and if an agreement cannot be
reached, the Bundesrat’s opinion is the decisive factor, providing
that it is based on a decision approved by a two-thirds majority. The
Bundesrat’s right to have the last word is restricted in matters that
could cause an increase in expenditure by the Federation or could
lead to a drop in federal revenue. In such cases the Federal Government must approve the German position as determined by the
Bundesrat. In cases in which EU legislation mainly affects the exclusive legislative competences of the federal states in the realm of the
44
school system, culture or radio and television broadcasting, the
German delegation is headed by a minister from one of the federal
states, appointed by the Bundesrat, who is in charge of conducting
the negotiations and is entitled to vote.
9. Participation in foreign affairs
Article 32 (1) of the Basic Law provides that the Federation shall be
responsible for maintaining international relations with other countries. This provision does not assign this responsibility to any particular constitutional body and thus excludes neither the Bundesrat
nor the Bundestag from involvement as federal bodies. Nevertheless, as conveyed in the Basic Law, foreign affairs is a key policy
area in which the Federal Government is active, enjoying powers to
take far-reaching and indeed perhaps even existential decisions
independently of the legislative bodies. However, international
treaties regulating the federation’s relations with other nations or
relating to matters of federal legislation do require the “consent or
participation of the appropriate legislative bodies in the form of a
federal bill”, as stipulated in Article 59 (2) of the Basic Law.
In terms of the Bundesrat’s rights, this means that a treaty law Consent to
(referred to as a “ratification law”) requires Bundesrat consent if the ratification bills
adoption of a domestic law with similar content would require the
consent of the Bundesrat pursuant to the Basic Law. By using its
right of veto, i.e. refusing to approve a law, the Bundesrat can prevent an international agreement from coming into force for Germany. The Maastricht Treaty concerning the deepening of the European Communities into the European Union, to mention just one
example, required the Bundesrat’s consent. Other types of agreement subject to the Bundesrat’s approval include agreements on
disaster relief, administrative and judicial cooperation, tax law, pension law, the protection of capital investments, and environmental
protection.
If the Basic Law does not require consent for national implementation of the content of an international treaty, the treaty law must still
be forwarded to the Bundesrat, but here the Bundesrat only has a
45
right of objection (in the second reading). In such cases, the Bundestag may override the Bundesrat’s objections, thus enabling
entry into force (ratification) of the treaty.
The foreign policy sphere also includes the contacts with countries
abroad maintained by the Bundesrat, its committees, the Bundesrat
President and individual members, particularly through official visits
from and to the Bundesrat.
10. Right to be informed by the
Federal Government
Pursuant to Article 53, third sentence of the Basic Law, the Bundesrat shall be “kept informed by the Federal Government with
regard to the conduct of its affairs”. This obligation to provide information relates to all government business, and is therefore not
restricted to legislative and administrative activities, but also
includes for example information about the general political situation, foreign and defence policy. The Federal Government must provide comprehensive and timely information on an ongoing basis at
its own initiative. Furthermore the Bundesrat is entitled to “summon” any member of the Federal Government to its plenary and
committee meetings and put questions to them. Conversely, members of the Federal Government are entitled to attend all meetings
of the Bundesrat and its committees, as well as to speak there at
any point. However, the Bundesrat rarely utilises its formal right to
put questions in the plenary sessions. The second chamber does
not have a specific “Question Time” nor does it use the system of
written questions, which are both standard practice in the Bundestag.
46
11. Other roles
The Basic Law assigns numerous other tasks and competences to
the Bundesrat. For example, the Bundestag and Bundesrat each
elect half of the members of the Federal Constitutional Court. The
Bundesrat can also lodge complaints of unconstitutionality and can
testify in cases before the Federal Constitutional Court. The Bundesrat appoints representatives to the Federal Employment
Agency’s Management Board, as well as to other public bodies. It is
entitled to make proposals or has a right of consent in respect of
appointments to various other positions. Bundesrat consent is
required for proposals to the Federal President on appointments to
the position of Chief Federal Prosecutor, for attorneys in the Federal Supreme Court and for Deutsche Bundesbank Board Members.
The Federal Minister of Finance must account annually to the Bundestag and the Bundesrat for revenue and expenditure to enable
discharge of the Federal Government.
Should the Federal Chancellor no longer enjoy the confidence of the Legislative
Bundestag, without the Bundestag being dissolved, a complex pro- emergency
cedure allows the Federal Government to adopt bills with the consent of the Bundesrat. In this type of legislative emergency as
defined in Article 81 of the Basic Law, the Bundesrat constitutes a
“reserve of legality” when the Bundestag is not able to take action.
Monitoring and oversight roles are also ascribed to the Bundesrat in
the provisions set out in the Basic Law concerning federal oversight
of the activities of the federal states, domestic emergencies and natural catastrophes. Bundesrat consent is also required if the Bundestag determines that a state of emergency pertains because the
country is under attack; this is known as the state of defence. In
such cases the particular provisions for the state of defence laid out
in Articles 115a to 115k of the constitution may be applied.
47
The Basic Law stipulates that the Bundesrat is a constitutional
body, just like the Bundestag, the Federal Government, the Federal President and the Federal Constitutional Court.
The Bundesrat has a specific position within this system, which will
be addressed in the next section: it is more than an interface with
the federal states, for it is also a body responsible for scrutiny and
oversight. The Basic Law seeks to achieve the division of powers
– the Bundesrat plays a central role in that respect.
A second chamber?
The mandate
Taking decisions as a federal constitutional body
Taking decisions as a political constitutional body
Counterweight involved in monitoring
the Federal Government
Counterweight involved in rectifying
Bundestag decisions
Building on a sound tradition – forerunners
of the Bundesrat
49
A second chamber?
In many states around the world – both centralised states and
nations with a federal system – the legislature is organised into two
assemblies. This type of parliamentary system is generally
described as a “bicameral system”. In contrast, the Bundestag and
Bundesrat are not generally grouped together conceptually in this
way, indeed it is even debatable whether the Bundesrat can be
described as a “second chamber”. Critics who dispute that the
Bundesrat qualifies as a chamber point out that members are not
elected to the Bundesrat and are bound by instructions when voting. They would argue that these specific features mean one cannot refer to the Bundesrat as a parliamentary chamber. However,
this line of argument disregards the fact that the standards applied
to the Bundesrat in its capacity as a body that represents the constituent states differ from the yardstick taken when considering a
body that represents the people.
United Kingdom
Two legislative
assemblies
Parliament
House
of Lords
House
of Commons
Switzerland
Federal Assembly
Council
of States
National
Council
The Netherlands
States-General
First
Chamber
Second
Chamber
USA
Congress
Senate
House of
Representatives
On occasion critics seek to use the stance of the Federal Constitutional Court to demonstrate that the Bundesrat does not qualify
for chamber status. These critics insist that the Karlsruhe court has
ruled explicitly that the Bundesrat is not a second chamber. The
Federal Constitutional Court did indeed state in a ruling in 1974:
50
Die Aufgaben
The status
des
ofBundesstaates
the Bundesrat
“Pursuant to the provisions of the Basic Law, the Bundesrat is not
a second chamber of a unified legislative body that participates on
an equal footing with the “first chamber” in legislative procedure”.
The Federal Constitutional Court therefore does not simply unre- “A unique body”
servedly deny that the Bundesrat is a second chamber, and in its
ruling also referred to an academic treatment of the topic, which
highlights the “arbitrary nature” of the terminology selected. It is
indeed a semantic battle, fought sometimes with great passion.
However, in terms of the constitutional status of the Bundesrat, it
is immaterial, for the roles and powers of the Bundesrat do not stem
from the terms used to describe it, but instead from the various provisions of the Basic Law. The Bundesrat can certainly be categorised as a “genuine second chamber” if, like most experts on
constitutional law and political science, one considers the decisive
criterion when applying the term “chamber” to be whether an
assembly participates in the legislative procedure as a body that
actually shares in the decision-making (rather than playing a merely advisory role). However, one can also very well claim that the
Bundesrat is not a second chamber if one thinks that other features
are decisive, i.e. using this “arbitrary” terminology differently. This
does not however alter the Bundesrat’s actual role and status. Its
many specific features certainly make the Bundesrat “a unique
body, unparalleled anywhere else in the world”.
“Democracy is not just a set of rules that helps us to take
equitable and reasonable decisions. Democracy is also a
life form that needs tangible possibilities to develop its
potential. The federal states and above all the municipalities and districts are and will remain the most appropriate
place for that.”
Klaus Wowereit,
President of the
Bundesrat
(2001/02)
51
The mandate
The basic idea underlying the democratic and federal constitution
of Germany is the division of powers. The Federation and the federal states work within a mutual checks-and-balances system as
they conduct the business within their respective spheres of
responsibility, whilst also practicing cooperation and consideration.
When it comes to the division and execution of tasks, the main feature that distinguishes the German form of federalism from all other
federative systems is that the individual federal state governments
participate directly in the decisions of the national state or Federation. This principle is put into practice through the Bundesrat.
In this system of division of powers and shared responsibilities, the
Bundesrat has three central roles:
It defends the interests of the federal states vis-à-vis the Federation and indirectly vis-à-vis the European Union.
It ensures that the political and administrative experience of the
federal states is incorporated into the Federation’s legislation
and administration, as well as into European Union affairs.
Like the other constitutional bodies of the Federation, it shares
overall responsibility for the Federal Republic of Germany.
Counterweight The Bundesrat has a dual role to play in exercising these roles: on
and link the one hand, it acts as a federal counterweight to the Bundestag
and the Federal Government; on the other hand however it also
constitutes a link between the Federation and the federal states.
The Bundesrat represents the constituent states at the federal level,
whilst at the same time reminding these constituent states of their
duties on behalf of the alliance that makes up the state as a whole.
52
Taking decisions as a federal
constitutional body
In every state based on a federal system there is a natural tension
between the state as a whole and the constituent states. The Federation and the federal states seek to maintain and if possible
strengthen their position, to fully exercise and perhaps also extend
their rights. In this context the Bundestag and the Federal Government are the “central authorities”, to which the Basic Law has allocated the counterweight of the Bundesrat as a federative body at
the federal level. The main role of the Bundesrat is to preserve the
“interests of the Länder” at the federal level, whilst at the same time
ensuring that these are in tune with the concerns of the Federation
as a whole.
The “interests of the federal states” in this sense are clearly concerns that essentially can only be regulated via consent bills; for this
category of legislation the Bundesrat has an absolute right of veto:
The way in which responsibility for state activities is divided up Right of veto
between the Federation and the federal states i.e. provisions on
legislative, administrative and judicial competences within Germany and in the European Union context.
How tax revenues are shared between the Federation and the
federal states.
Determination of the administrative procedures that authorities in
the federal states must apply in enforcing federal bills.
Are such organisational, fiscal and administrative concerns really What are the
the whole story when it comes to the interests of the federal states? interests of the
Is it not much more the case that the governments of the Länder federal states?
may and indeed must also assert the interests of the people living
in their particular federal state when representing the “interests of
the federal states”? How can one differentiate between the “interests of the federal states” and the “interests of citizens”, given that
democratic states exist to serve their citizens? It is certainly impossible to draw a clear-cut distinction.
53
Responsibility for The Basic Law does not limit the Bundesrat to merely representing
federal policies the interests of the federal states. Instead the Bundesrat also
shares responsibility for overall federal policy. That becomes apparent if one recalls that the Bundesrat also addresses objection bills,
in other words precisely those bills that do not primarily affect the
interests of the federal states. In the case of consent bills, the Bundesrat may refuse its consent because of the provisions that trigger
classification of the legislation as a consent bill but in addition – as
repeatedly confirmed by the Constitutional Court – it enjoys a comprehensive right of scrutiny, meaning that it can also reject the bill
due to other provisions that do not fall directly into the consent category. The right to receive comprehensive information from the Federal Government, the participation of the Bundesrat when the state
of defence applies and its status as a “reserve of legality” in legislative emergencies are also manifestations of the responsibility the
Bundesrat shoulders for the whole country, a role that extends far
beyond defending regional interests.
Taking decisions as a political
constitutional body
Party politics in The Bundesrat is a political organ, for it is made up of politicians and
the Bundesrat? has a political remit. This puts it in a natural state of competition with
the Bundestag and the Federal Government. These two constitutional bodies are however not just political fora, but also express the
party political balance of power. However, in its capacity as a federative body at the federal level, the Bundesrat primarily represents the
federal states and not political parties, triggering the question as to
whether and to what extent there is scope for party politics in the
Bundesrat. Can the Bundesrat be a party political counterweight,
should it take on this role and is it authorised to do so?
When the groundwork was being done prior to adoption of the
Basic Law, efforts were made to ascribe to the Bundesrat the role
of a “counterbalance to party politics”, which would be guided by
“greater objectivity” and the “desire for absolute impartiality”. The
Parliamentary Council criticised such derogatory appraisals of party
politics. In this view of the Bundesrat (in those days also referred to
54
as the “Council of the Federal States”), the Bundestag would seem
to be “the font of all the evils of the party system and the Council of
the Federal States to be wisdom and goodness incarnate”, to cite
criticism from Hermann Brill, a Social Democrat from Hesse.
Contrasting the notions of “impartial politics” and “party politics”
would indeed call the reputation of the political parties into question,
for it would suggest that party politics are to be equated with biased
politics.
The constitution provides that the political parties have a mandate to Parties must
participate in political decision-making. Within the system defined by use their
the constitution, they are actually the real “pillars of policy”; we live critical judgement
in a multi-party democracy. As a result it now goes without saying
that Bundesrat decisions, which are after all political decisions, may
be coloured by party political concerns. “We are the fathers of our
federal states and the sons of our parties at one and the same time”,
Heinz Kühn, Minister-President of North Rhine-Westphalia, noted in
1971 when speaking to the Bundesrat, with “a need to preserve the
ability to enter into compromises, yet without compromising ourselves or our ideas.”
In political discourse the issue of how much influence the parties
should have in the political decision-making process remains controversial, as does the question of where the border line should be
drawn between a “political Bundesrat” and “party political abuse of
the Bundesrat”. There are no rigid legal criteria for determining precisely where this demarcation line lies. Instead it is up to the political parties to use their own critical judgement – bearing in mind the
constitutionally defined role of the Bundesrat – and to contribute to
ensuring the Bundesrat is an independent political force as a constitutional body.
“I am profoundly convinced that the Bundesrat’s fact-based
approach can serve as a role model for political action at other
levels. Here the well-being of the state ranks above self-interest, here party political interests are not the yardstick for
actions and decisions, here the focus is on the interests of
the federal states and the well-being of their citizens.”
55
Peter Harry
Carstensen,
President of
the Bundesrat
(2005/06)
More relaxed fronts Party political camps emerge particularly clearly in the Bundesrat
when the majorities in the Bundestag and Bundesrat come from different parties. If the opposition in the Bundestag has not managed
to garner enough support on a particular issue, it then attempts to
have its position adopted in the Bundesrat on a case-by-case basis,
particularly if the issues are politically controversial. So far it has not
been the general rule for decisions in the Bundesrat to be guided
by party political concerns, with all the polarisation that would
entail. The political party fronts, while they do play a role, are
nonetheless not nearly as rigid as one might imagine; that is partly
a consequence of the intrinsic tensions in relations between the
Federation and the federal states, which naturally unite all the federal states regardless of the party political loyalties of the Länder
governments, as well as partly being due to other factors relevant
across the political spectrum, such as regional interests and the
specific concerns of the federal states as a tier of government.
Counterweight involved in monitoring
the Federal Government
In keeping with our constitution, the Bundestag elects the Federal
Chancellor; he or she must have the trust of the Bundestag, which
enables both the Chancellor and the government to conduct their
business properly. The Bundesrat has no influence in the process
of appointing or dismissing members of the government. Nonetheless the Bundesrat, along with the Bundestag, plays a vital role in
monitoring the Federal Government’s activities.
This monitoring primarily takes the form of involvement in the legislative process. Whilst the principle of division of powers means
that the government cannot simply promulgate bills, it does however initiate most legislation and draws up the detailed implementing
provisions in the federal ministries. As all government bills must first
be forwarded to the Bundesrat for its comments, it can carry out
thorough scrutiny of draft legislation at this juncture – even before
deliberations in the Bundestag. The structure of the Bundesrat,
which as we have seen is composed of members of the govern-
56
ments of the federal states, plus the option of appointing experienced civil servants from the federal states as “representatives” to
participate directly in committee meetings, have proven to be very
effective factors in this scrutiny process. This system means that
the federal ministries deal with a highly qualified counterweight at
the technical level too; the representatives from the federal states
know their policy areas inside out and can thus take a very careful,
detailed look at all spheres of domestic policy – even though the
state is active in so many different areas and the subject-matter
addressed tends to be highly complex.
These comments also hold true for European Union affairs, which European
can no longer be slotted into the category of classical foreign poli- domestic policy
cy, but as a result of increasing European integration might well be
described as European domestic policy. As to date the structure of
the EU has granted the governments of Member States the right to
decide on European lawmaking and politics, monitoring the Federal Government’s activities in this area is crucial. That is why Article
23 of the Basic Law, introduced into the constitution in 1992,
granted the Bundesrat – and indeed the Bundestag - enhanced
rights to participate and exercise scrutiny.
The Bundesrat also takes on a comprehensive monitoring role in the
sphere of the actual executive activity of the Federal Government,
Basic Law
Monitoring and
taking corrective
action – relations
between the
constitutional bodies
§
Bundestag
Bundesrat
Federal government
57
namely issuing statutory instruments and general administrative regulations, as the majority of these provisions can only be adopted with
Bundesrat consent. As the Bundestag is only very rarely consulted
on these matters, government activity here is subject to scrutiny
exclusively by the Bundesrat, representing the federal states.
A difficult Generally speaking, it is fair to say that the Bundesrat constitutes a
counterpart more difficult political counterpart for the Federal Government than
the Bundestag does, for within the parliamentary system the majority in the Bundestag determines which party or parties are in government and thus supports the government. In contrast, in the Bundesrat it is entirely possible that different parties form a majority, and
indeed that different viewpoints may influence decisions:
The party political mix in the Bundesrat and Bundestag may differ, as the elections to the parliaments in the federal states, which
indirectly determine the composition of the Bundesrat, are held at
different times and frequently produce different outcomes than
elections to the Bundestag. In such situations the Federal Government is then, as it were, confronted with an “opposition” in the
Bundesrat, which can take decisions as a majority in that body,
rather than being limited to mere opposition.
The members of the Bundesrat, particularly the Minister-Presidents
as “princes in the federal states” may retain a particular degree of
independence stemming from their personalities and the trust
expressed by their electorate. That means they may well pursue
policies that are not determined by party political considerations.
Decisions taken by the Bundesrat are informed by political and
administrative experience gleaned on the spot.
The Federal Government must also pay attention to the need to
ensure respect for the “interests of the federal states”, the Bundesrat’s principal role.
58
Counterweight involved in rectifying
Bundestag decisions
The Basic Law provides that two legislative bodies shall be responsible for federal legislation. The Bundestag and the Bundesrat are
however not accorded an entirely equal status. The degree of Bundesrat “participation” varies depending on the type of legislation.
In the case of consent bills, the Bundesrat’s corrective role is immediately apparent, but it also plays a part, albeit to a lesser extent,
when it comes to objection bills. The Bundesrat may introduce new
or additional arguments and decisions into legislation; if need be, it
may also prevent the passage of specific bills. However it is not the
option of saying “no” and generating conflict that takes centre-stage;
the focus is on the possibility of concurring through a “yes” vote and
reaching a compromise.
The Bundesrat certainly does not simply rubber-stamp decisions, but
nor would it be fair to reproach it with being awkward and tending to
say “no”. There are always differences of opinion and also tough disputes, but the main focus is on striving to reach sound, fact-based
solutions to the problems considered. Such efforts are part-and-parcel of politics in a democracy; indeed, far from undermining the
importance of the Bundesrat’s corrective role, these efforts are the
hallmark of that role:
Bundesrat participation in legislation is a manifestation of power- Participation
sharing and the checks-and-balances built into the federal system.
In its capacity as the representative of the federal states, the Bundesrat is responsible for ensuring the interests of the whole federation are respected. Drawing on the federal states’ administrative
experience in enforcing legislation, the Bundesrat can furthermore
play a key role in ensuring top-quality, practicable federal bills.
Participation obliges the Bundestag and the Bundesrat to weigh
up the pros and cons of measures and strike the right balance, as
well as compelling them to exercise restraint and moderation. It is
certainly positive if this helps to avoid excesses in the substance
of decisions – but it is disadvantageous if compromises are based
on the lowest common denominator, blurring all political contours
beyond recognition.
59
Participation enables broad majorities, right down to the level of
the federal states and thus contributes to good relations within
the country.
Participation signifies continuity and stability, if the right balance
can be struck and a broad majority attained, for then the results
of elections do not lead to a radical change of course even in an
age when there is almost a balance between the political camps.
Sharing in Much of the Bundesrat’s political significance derives from the sigdecisions nificant role it plays in shaping the Federation’s legislative frame-
work, for the Bundesrat is not restricted to a purely advisory role.
This role means the Bundesrat enjoys a strong position in relations
with the Bundestag and within the overall constitutional structure.
Political friction Of course, the way in which spheres of activity are divided between
the tiers of state can also trigger frictions and political tensions, just
like the overall system of division of powers. Election campaigns in
particular may heighten such tensions, causing stinging debates.
Taking stock however, the system turns out on the whole to be positive, if one does not overemphasise the kind of exceptional situation described above; it is also important to bear in mind that unusual or sensational events attract more media attention than if
everything is smoothly taking its normal course. In relations
between the Bundestag and the Bundesrat very few conflicts
remain unresolved, and almost all the compromises attained are
satisfactory for both assemblies.
60
The Bundesrat is not just a counterweight to the Bundestag and the
Federal Government, but at the same time also constitutes a link
between the Federation and the federal states. It represents both the
state as a whole (the Federation) as well as the constituent member
states (the 16 Länder).
The Bundesrat is on the one hand the federative constitutional body in
the Federation through which the Länder, as constituent states, can
participate directly in formulating the Federation’s political objectives
and thus contribute to crafting policy for the entire country. On the
other hand, through the Bundesrat the Federation can drawn on the
political and administrative experience of the federal states and, with
Bundesrat consent, can extend the impact of its actions to their territories via bills, statutory instruments, general administrative regulations
and indirectly through European Union legislation.
In other words, the Bundesrat is both the body that represents the federal states to the Federation and the body that represents the Federation to the federal states. This “mediator role” is particularly important
given the close interlinking between the competences of the Federation and the federal states, which are much more closely intermingled
than, for example, in the USA. The Bundesrat must defend the interests of the individual federal states, whilst at the same time also bearing in mind the needs of the state as a whole. All politicians involved
in Bundesrat decisions must consider the interests of the Federation
hand-in-hand with the interests of the Länder, and can never appraise
the interests of the federal states without also being aware of the interests of the state in its entirety. Through the Bundesrat as a federal
body made up of the Länder governments, the individual federal states
are closely integrated into the political commissions and omissions of
the state as a whole. The federal states do not simply receive orders
but instead share in the decision-making process.
“In the Bundesrat Germany has an instrument well-suited
to handling even major social challenges. This is demonstrated by the way in which the new federal states have
been integrated, the solidarity shown in supporting the profound transformation processes in these federal states …”
61
Prof.Dr. Wolfgang
Böhmer,
President of
the Bundesrat
(2002/03)
Building on a sound tradition –
forerunners of the Bundesrat
The Bundesrat is not an innovation dreamt up in the Basic Law. On
the contrary, it was preceded by a whole host of institutions with
membership structures and mandates that were either identical or at
least very similar to the modern Bundesrat.
The Regensburg Perpetual Imperial Diet (1663–1806) of the Holy
Roman Empire of the German Nation and the Frankfurt Federal Diet
of the German Confederation, set up at the 1815 Congress of Vienna, might even be counted as forerunners of the Bundesrat, albeit
with certain caveats.
Federal Council of The Federal Council of the 1871 German Empire was a true predethe German Empire cessor of the Bundesrat and was a key component in the constitu-
tional order. Alongside the emperor, it was the supreme body of the
Reich. Every member of the federation could send “delegates” to the
Federal Council corresponding to the number of votes it had there,
which was calculated on the basis of the number of inhabitants. As
is the case in the Bundesrat today, each of the constituent states had
to cast its votes en bloc. The Federal Council had much greater powers and responsibilities, along with more opportunities to influence
policy, than was the case for the Reichstag, which represented the
people. The Federal Council could even dissolve the Reich Parliament if the emperor agreed.
The Reichsrat of The constitution of the Weimar Republic, established in 1919, was
the Weimar Republic based on the sovereignty of the people. The Reichstag (the lower
house of the parliament), which was the state body that represented
the people, acquired greater political significance as a result. Scope
for the Reichsrat (the upper house of the parliament) to participate in
the legislative process was restricted. It could only object to bills
adopted by the Reichstag, but the Reichstag was entitled to reject
these objections with a two-thirds majority. In such cases the President of the Republic decided whether to promulgate the bill with no
further ado or to rule that a referendum should be held on the legislation.
On 14th February 1934 the Reichsrat was dissolved by a government decree based on the 1933 Enabling Act. Prior to this, the sov62
ereign rights of the federal states had already been transferred to the
Reich, the federal state parliaments had been dissolved and the governments of the Länder had been placed under the control of the
Reich government.
In the wake of the total collapse of Hitler’s dictatorship, the Parliamentary Council drew the logical consequences from the catastrophe when it drafted the Basic Law. That is why federalism is an
essential aspect of the state system in Germany, which has been in
force throughout the whole country since 3rd October 1990. In this
system the Bundesrat, the federative constitutional body at the federal level, should be understood as an institution that has evolved
over the course of history, and has been shaped by the genesis of
the German nation-state and the ensuing practical implementation of
the principle of democracy. The main hallmarks of the Bundesrat are
imbued with “constitutional DNA”, setting it firmly in a tradition that
links it to its two predecessors:
Constitutional body of the Federation (of the Reich),
Composed of representatives from the federal states’ governments,
Staggered number of votes for the federal states,
Votes are cast en bloc by each federal state on the basis of
instructions from the Land government, and
Powers and responsibilities pertaining to both legislation and
administration of the state as a whole.
The Basic Law ascribed a powerful position to the Bundesrat – it is
weaker than the Federal Council in the 1871 German Empire, yet
stronger than the Reich Council in the Weimar Republic.
Meeting of the Federal
Council in 1877.
Otto von Bismarck,
Chancellor of the
German Empire, is
speaking (standing
at the table).
63
Bundestag’s
term of office
19
49
–5
3
19
53
–5
7
19
57
–6
19 1
61
–6
19 5
65
–6
9
19
69
–7
2
19
72
–7
19 6
76
–8
0
19
80
–8
3
19
83
–8
7
19
87
–9
19 0
90
–9
19 4
94
–
19 98
98
–
20 200
02
2
–2
00
5
The Bundesrat’s overview of legislative activities
1.
2.
3..
4..
5...
6.
7.
8.
9.
10.
11.
12.
13.
14. 15.
Draft bills from
federal government
481
434
391
370
414
350
470
323
155
283
324
413
443
446 353
Draft bills from Bundesrat
29
16
5
8
14
27
75
53
38
61
51
108
147
95
Draft bills from Bundestag
301
414
207
245
225
171
136
111
58
183
227
297
329
328 211
Bills passed by Bundestag
559
518
428
429
461
334
516
354
139
320
369
507
565
558 401
Referrals to
75
65
49
39
39
33
104
77
20
6
13
85
92
77
102
Referrals to MC
by the Bundesrat
70
59
46
34
34
31
96
69
17
6
13
71
74
66
90
Bills promulgated
545
510
424
425
453
333
506
339
136
320
366
493
551
543 385
116
Consent bills promulgated 42 % 50 % 56 % 53 % 49 % 52% 53 % 54 % 52 % 60 % 55 % 57 % 60% 55% 51%
Bills not adopted as
Bundesrat consent denied
8
6
–
3
2
1
8
9
2
–
1
9
10
7
5
Objections
1
1
3
–
–
1
5
7
7
–
1
5
13
5
22
Objections overridden
by the Bundestag
–
1
1
–
–
1
4
5
6
–
1
4
12
2
22
Statutory instruments
dealt with by the Bundesrat 426
579
471
550
525
471
680
554
298
448
546
639
619
504 436
Administrative regulations
dealt with by the Bundesrat 110
66
58
72
62
60
81
78
45
71
61
47
69
58
30
24
478
826
759 1017 660
405
634
769
783
746 604
511
35
European Community/
Union legislation
Plenary sessions
116
69
54
50
56
43
55
51
28
52
53
51
54
50
Committee meetings
761
604
475
443
545
384
523
503
289
541
593
794
732
683 480
Sub-committee meetings
331
283
243
262
258
266
297
293
147
287
395
344
199
160 83
3
4
1
Meetings of the Chamber
of European Affairs
1
–

The Bundesrat and the federal state system

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