Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Internet
The Bundesrat
http://www.bundesrat.de
Information about the federal states
http://www.bundesrat.de
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 Bundesrats
composition and the range of roles it fulfils are entirely unique.
Germanys federal system is the framework within which the
Bundesrats 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
Bundesrat
Public Relations
11055 Berlin
Germany
www.bundesrat.de
Photos: Bundesrat, Press and Information Office of the Federal Government, Bernhard Kroll, Torsten Saffir
ISBN: 3-923706-32-4
Subject-specific sites/Federalism
Inhalt
Contents
4
5
10
14
14
16
17
18
20
23
24
25
27
29
34
34
35
36
36
41
41
42
43
44
45
46
47
Annex
Bibliography
Index
Internet
50
52
53
54
56
59
61
62
64
Bibliography
Total of 69 votes
Schleswig-Holstein
2,8 million
BadenWrttemberg
Bavaria
Kiel
Mecklenburg-Western Pomerania
Hamburg
1,8 million
1,7 million
Schwerin
Hamburg
Bremen
Lower Saxony
8,0 million
Berlin
Brandenburg
Hannover
Bremen
Hamburg
Magdeburg
Saxony-Anhalt
18,0 million
2,4 million
Dresden
Dsseldorf
Erfurt
Mecklenburg-Western
Pomerania
Hesse
6,1 million
Rhineland-Palatinate
Saxony
4,2 million
Thuringia
2,3 million
Mainz
Saarland
1,0 million
Saarbrcken
Lower Saxony
Bavaria
12,5 million
Stuttgart
RhinelandPalatinate
Saarland
Saxony
Saxony-Anhalt
Baden-Wrttemberg
10,7 million
Thuringia
Munich
Wiesbaden
4,0 million
North RhineWestphalia
3,4 million
Potsdam
North-Rhine Westphalia
Bonn
Hesse
Berlin
Berlin
2,5 million
0,7 million
Brandenburg
Bremen
Index of topics
Abstention
Agenda
22
23, 26, 31
18
32ff., 52ff., 58ff.
Lnder governments
14ff.
Lnder parliaments
7
Landesvertretung, representative
office of federal state
20, 31
Legal ordinance
42f., 57, 64
Legislative emergency
47, 54
Legislative procedure
34ff., 51
46
9
46
18
20f., 24
21, 45
16 federal states or Lnder 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.
Federal government
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.
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 Lnder 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)
Twofold division of
powers within the
federal state system
16 federal states
6
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 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 Lnder 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.
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 Lnder have to wait for input, decisions or con-
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.
Kurt Beck,
President of
the Bundesrat
(2000/2001)
10
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)
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 Bundesrats 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
Distribution of votes
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
16
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
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).
19
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-
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
states 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 Lnder 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
Dieter Althaus,
President of
the Bundesrat
(2003/2004)
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 speakers 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 Bundesrats 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 governments 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
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.
24
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 Governments expertise is directly
complemented by that of the Bundesrat and the federal states.
The heads of the Lnder 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
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 Transport
Committee on
Economic Affairs
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 Bundesrats 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
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 Committees 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
Proposals
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
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 states 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.
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
what the Bundesrats position is likely to be when it has the last word
in the second reading. The Bundesrats 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
Bundesrats opinion and the governments counter-statement are
then all submitted to the Bundestag.
36
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
Amendments proposed
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
Federal government
Bundestag
Bundesrat
Draft bill
Opinion
Counter-statement
Decision by Bundestag
Bill passed
Bill rejected
Bill fails
Decision by Bundesrat
Approval
Referral to MC
Amendments proposed
Decision by Bundesrat
Agreement
Objection with
absolute majority
Decision by Bundestag
Decision by Bundestag
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
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.
41
6. Statutory instruments
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 Bundesrats 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
43
right of objection (in the second reading). In such cases, the Bundestag may override the Bundesrats 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.
46
47
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
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--vis the Federation and indirectly vis--vis the European Union.
It ensures that the political and administrative experience of the
federal states is incorporated into the Federations 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
52
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.
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
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 Lnder
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.
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 Governments 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 Bundesrats principal role.
58
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
Prof.Dr. Wolfgang
Bhmer,
President of
the Bundesrat
(2002/03)
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 Lnder had been placed under the control of the
Reich government.
In the wake of the total collapse of Hitlers 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
Bundestags
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
1.
2.
3..
4..
5...
6.
7.
8.
9.
10.
11.
12.
13.
14. 15.
481
434
391
370
414
350
470
323
155
283
324
413
443
446 353
29
16
14
27
75
53
38
61
51
108
147
95
301
414
207
245
225
171
136
111
58
183
227
297
329
328 211
559
518
428
429
461
334
516
354
139
320
369
507
565
558 401
Referrals to
Mediation Committee (MC)
75
65
49
39
39
33
104
77
20
13
85
92
77
102
Referrals to MC
by the Bundesrat
70
59
46
34
34
31
96
69
17
13
71
74
66
90
Bills promulgated
545
510
424
425
453
333
506
339
136
320
366
493
551
543 385
116
10
Objections
13
22
Objections overridden
by the Bundestag
12
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
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