Professional Documents
Culture Documents
German Parliament
German Parliament
Internet
A federal constitutional body 4
Federalism – unity in diversity 5
The Bundesrat Distinct roles and shared responsibilities 10
http://www.bundesrat.de
Information about the federal states
The Bundesrat and Organisation and working methods
ISBN: 3-923706-32-4
The European Centre for Federalism Research in Tübingen The committees 25
is planning to develop an online documentation resource on Inhalt The Mediation Committee 27
Contents
federalism. The Centre’s homepage offers a broad range of The Bundesrat’s working methods 29
links offering more information.
http://www.uni-tuebingen.de/ezff The Federal Council of The roles played by the Bundesrat
Photos: Bundesrat, Press and Information Office of the Federal Government, Bernhard Kroll, Torsten Saffir
7. Consent to general administrative regulations 43
The brochure opens with an introduction to the key traits of German
Austrian Legal Information System 8. European Union draft legislation 44
federalism, in which the “parliament of the federal states’ govern- 9. Participation in foreign affairs 45
http://www.ris.bka.gv.at
ments” forms a link between the central federal level and the individ- 10. Right to be informed by the Federal Government 46
Swiss server for legal experts ual federal states. This is followed by an explanation of the 11. Other roles 47
http://www.legalresearch.ch Bundesrat’s composition, organisation and working methods. A brief
historical overview offers insights into the constitutional tradition in The status of the Bundesrat
which the Bundesrat is embedded. A second chamber? 50
The mandate 52
Taking decisions as a federal constitutional body 53
An index assists readers looking for specific terms. A bibliography and
Taking decisions as a political constitutional body 54
some Internet links are provided for readers who would like to do Counterweight involved in monitoring the Federal Government 56
more reading on the subject. Counterweight involved in rectifying Bundestag decisions 59
Link between the Federation and the federal states 61
Building on a sound tradition – forerunners of the Bundesrat 62
Overview of legislative activities 64
Annex
Bibliography
Bundesrat We would be delighted to send you further Index
Public Relations copies of this brochure or other information Internet
11055 Berlin material about the Bundesrat or federalism
Germany free of charge.
www.bundesrat.de
Coats of arms of the Federation Distribution of votes in the Bundesrat
Total of 69 votes Bibliography Index of topics
and the 16 federal states
1. Works of collected articles on the Bundesrat 3. Works of collected articles on federalism Abstention 22 Mediation Committee 27ff., 36ff., 43, 64
Agenda 23, 26, 31 Meeting/session
Handbuch des Bundesrates / Bundesrat (Ed.), Die deutschen Länder: Geschichte, Politik, Wirtschaft /
– Bundesrat plenary session 23f., 29f., 64
Schleswig-Holstein New edition annually Hans-Georg Wehling (Ed.), 2nd edition 2002 Bill passed by the Bundestag 28, 38f., 64
2,8 million Kiel – Meeting of the Chamber
Der Bundesrat im ehemaligen Preußischen Ende des Föderalismus: Gleichschaltung und Bound by instructions 21, 27, 50
– of European Affairs 24f., 44, 64
Herrenhaus / Bundesrat (Ed.), 2002 Entstaatlichung der deutschen Länder von der natio- Budget 20
– Meeting of Bundesrat Committees
Baden- Mecklenburg-Western Pomerania nalsozialistischen Machtergreifung bis zur Auflösung Bundesrat (Kaiserreich) 62
Württemberg Bavaria Hamburg Der Bundesrat / Ziller, Gebhard/Oschatz, Georg-Berndt, 25ff., 30f., 64
1,7 million des Reichrats / Talmon, Stefan, in: Zeitschrift für neuere Bundestag 4, 18, 36, 44f., 47, 59ff.
Area: 35752 km2 Area: 70552 km2 1,8 million Schwerin 10th edition 1998 – Meeting of Mediation Committee 27ff., 36
Rechtsgeschichte, 24 (2002), pp. 112–155
Hamburg Call to order 23 Member
Der Bundesrat. Mitwirkung der Länder im Bund /
Föderalismus: Analysen in entwicklungsgeschichtlicher Casting of votes 17, 20ff. – Members of the Bundesrat 14ff., 27
Bremen Pfitzer, Albert, 4th edition 1995
Brandenburg und vergleichender Perspektive / Benz, Arthur (Ed.), Casting votes en bloc 20f. – Member of Bundesrat committee 25ff.
Bremen Praxishandbuch Bundesrat: verfassungsrechtliche Deutsche Vereinigung für Politische Wissenschaft,
Lower Saxony 0,7 million
2,5 million Centralised state 5ff. – Member of the Chamber of
8,0 million Grundlagen, Kommentar zur Geschäftsordnung, Politische Vierteljahresschrift, Sonderheft, 32/2001 – European Affairs 25
Chamber of European
Berlin Brandenburg Praxis des Bundesrates / Reuter, Konrad, 1991 – Member of the Mediation Committee 27f.
Berlin German federalism: past, present, future / ed. by Union Affairs 24ff., 44
Area: 891 km2 Area: 29480 km2 Berlin
3,4 million Miterlebt – Mitgestaltet. Der Bundesrat im Rückblick / Maiken Umbach. – 1. publ. Basingstoke [et al.]. Palgrave, Chamber of the Minute-taker 23, 29
Hannover Magdeburg Potsdam Hrbeck, Rudolf (Ed.), 1989 2002 federal states 34, 50, 54f., 61 Minutes of the meeting 21, 23, 31
Das Parlament der Regierenden. 40 Jahre Bundesrat. Föderalismus in Deutschland / Bundeszentrale für poli- Checks and balances, system of controls
North-Rhine Westphalia Saxony-Anhalt Objection bill 38ff.
Eine Chronik seiner Präsidenten / Herles, Helmut, 1989 tische Bildung (Ed.), Informationen zur politischen Bildung, 6ff., 56ff.
18,0 million 2,4 million Official document 30f.
No. 275, 2002 Coalition government 20
Opposition 14, 56
Bremen Hamburg Coat of arms 23
Föderalismus: eine Einführung / Sturm, Roland/ Parliamentary Council 6, 55
Area: 404 km2 Area: 755 km2 2. Essays on the Bundesrat Committees 18f., 25ff., 30, 46
Düsseldorf Dresden Zimmermann-Steinhart, Petra, 2005 Parliamentary group 27
– Committee members 25ff.
Bundestag und Bundesrat bei der Umsetzung von Party politics 54ff.
Erfurt Saxony Das föderative System der Bundesrepublik – Committee meetings 18, 27, 56, 64
EU-Recht / Zeh, Wolfgang / In: Der Politikzyklus zwischen Deutschland / Laufer, Heinz/Münch, Ursula, 7th edition Permanent Advisory Council 20, 31
Bonn 4,2 million Consent bill 28, 36ff., 59, 64
Hesse Thuringia Bonn und Brüssel / Derlien, Hans-Ulrich et al (Ed.), 1999, 1997 Plenary 13ff., 18ff., 23, 30
Mecklenburg-Western 6,1 million 2,3 million Plenary session 14f.
pp. 39 – 51 Distribution of votes 16
Hesse Pomerania Föderalismus in der Bundesrepublik Deutschland: President of the Bundesrat 18ff., 22, 25, 46
Area: 21115 km2 Area: 23182 km2 Das parlamentarische Regierungssystem und der Division of powers 4ff., 10f., 59f.
eine Einführung / Kilper, Heiderose, 1996 Presidium 18ff., 22
Rhineland-Palatinate Wiesbaden Bundesrat – Entwicklungsstand und Reformbedarf / Draft bill 35f
4,0 million Dolzer, Rudolf/Sachs, Michael / In: Veröffentlichungen der Föderalismus: Grundlagen und Wirkungen in der – Draft bill introduced by the Bundesrat Prior discussion 31
Mainz Vereinigung der Deutschen Staatsrechtslehrer, Vol. 58, Bundesrepublik Deutschland / Reuter, Konrad, 38f., 64
5th edition 1996 Question time 46
1999, pp. 7–77 – Draft bill introduced by the Bundestag 36f.
North Rhine- Saarland
Zustand und Perspektiven des deutschen – Draft bill introduced by Regionalisation 9
Lower Saxony Westphalia 1,0 million Die Rolle des Bundesrates und der Länder im Prozeß
Bundesstaates / Blanke, Hermann-Josef/Schwanengel, – the federal government 30, 35f., 64 Reichsrat 62
Article 50 BL “The Länder shall participate through the Bundesrat in the legisla-
tion and administration of the Federation and in matters concerning
the European Union.”
Federal President
The five permanent Bundesrat
constitutional bodies of
Federal government
the Federation 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 spe-
cific legislative, executive and judicial bodies.”
4
The federal state system
“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
The federal state 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 (verti-
cal 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 effec-
tive 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 rev-
olution in the former GDR in 1989 was the reintroduction of the fed-
eral 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 Executive Judiciary
(legislation) (government (administration
and of justice)
administration)
Twofold division of
powers within the
federal state system
16 federal states
6
The federal state system
+ Power-sharing
In a federation, the classical horizontal division of powers (legisla-
tive – executive – judicial) is complemented by a vertical division
of powers between the state as a whole and the individual con-
stituent 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 fos-
tering 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 gen-
eral 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 experi-
ence foster progress and serve as a safeguard, ensuring that any
mistakes are not repeated across the whole country.
7
The federal state system
+ 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.
– 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 Repub-
lic 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 ensu-
ing 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
The federal state system
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 struc-
ture, 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 fed-
eral 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.
9
The federal state system
10
The federal state system
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 Basic Law takes the idea of federalism based on soli- Matthias Platzeck,
darity. Germans from former East Germany made a con- President of
scious decision to opt for this inner unity after the fall of the the Bundesrat
Wall. We should understand the call for more competition (2004/2005)
as a complement to the solidarity principle rather than as a
substitute for it.”
11
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 Bun-
desrat’s day-to-day work is done, a topic rarely addressed directly in
the media. The atmosphere, style and working methods are signifi-
cantly different from those in the Bundestag: work in the Bundesrat
has a different rhythm and functions according to a distinct procedure.
Organisation and working methods
Distribution of votes
The members
Voting
Plenary sessions
The committees
Before August 2000 the Bundesrat’s official seat had been in the Bun-
deshaus in Bonn, along with the Bundestag, ever since the Bun-
desrat’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.
Article 51 (1) BL “The Bundesrat shall consist of members of Land governments, which
appoint and recall them.”
14
Organisation and working methods
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, elec-
tions 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 com-
position 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
Organisation and working methods
Distribution of votes
States and Must all of the constituent states have the same number of repre-
population 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 democ-
ratic 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 fed-
eral 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 pop-
ulation 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 estab-
lished, 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
Organisation and working methods
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
Organisation and working methods
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 commit-
tee meetings and have the right to be heard there at all times. Fur-
thermore, 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.
18
Organisation and working methods
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:
19
Organisation and working methods
The Bundesrat’s The Presidium of the Bundesrat, i.e. the President and the two Vice-
budget 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 – Bun-
desrat” 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.
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
Organisation and working methods
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 govern-
ment of each federal state is the only body authorised to issue voting
instructions. As laid out in the Basic Law, neither the Minister-Presi-
dent (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 Bun-
desrat.
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 Bun-
desrat session which of the members will cast the votes; alternative-
ly, 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 feder-
al 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 compro-
mise 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 inde-
pendently by the federal states; it does not encroach on the consti-
tutional 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 fed-
21
Organisation and working methods
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 Bun-
desrat President records the votes of each individual member of the
Bundesrat as a vote for the whole federal state, provided that ano-
ther 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 amend-
ments 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.
Dieter Althaus, “We need a reform of the federal system… above all there is a
President of need to correct erroneous developments and recall once again
the Bundesrat the principles originally spelled out in the Basic Law: subsidiarity
(2003/2004) and autonomy for the federal states and municipalities, reinforcing
these fundamental principles and breathing new life into them.”
22
Organisation and working methods
Plenary sessions
On Fridays at 9.30 a.m. the Bundesrat comes together for its pub-
lic 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 Bun-
desrat; members and representatives of the federal government sit
to the left and right of them on two longer rows of seats, with a sec-
tion 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 calm-
ly and sedately, focussing on the facts. Discussions also remain
matter-of-fact in debates with representatives of the Federal Gov-
ernment, even though there are sometimes considerable differ-
ences 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 dis-
content or applause, which until the 90s were more or less consid-
ered poor form.
23
Organisation and working methods
Careful While the tone in the plenary may be calm, the meetings are any-
preparation for thing but leisurely. Given the plethora of agenda points to be exam-
votes ined, 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 meet-
ings, and particularly the votes, are prepared very carefully and pre-
cisely. As a result debates are very much focused on the relevant
issues, even if the debating style is not exactly spectacular.
24
Organisation and working methods
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 min-
istries, 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
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 Part of the ongoing dialogue between the Federation and the fed-
from the eral states occurs in the committees. The Federal Chancellor and
federal ministries the Federal Ministers are entitled – and at the request of the Bun-
participate too desrat are obliged – to attend committee meetings (as well as ple-
nary sessions). They have the right to speak at any time. “Envoys of
the Federal Government”, i.e. civil servants from the federal min-
istries, 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
Organisation and working methods
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 appoin-
ted 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 representati-
ves at most four times in the course of one legislative term of the
Bundestag. The meetings are strictly confidential. They are conduc-
ted by one of the two committee chairpersons, one of them a mem-
ber 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 Bun-
desrat.
27
Organisation and working methods
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 Bun-
desrat 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 howev-
er the upper limit, for each constitutional body is only entitled to
refer the same bill to the Committee once.
Proposals The Committee may recommend that a bill passed by the Bun-
destag be revised, i.e. that provisions not acceptable to the Bun-
desrat be reformulated, that additions be made or sections
deleted.
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.
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
Organisation and working methods
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 amend-
ments 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 Bun-
desrat 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 pro-
posals 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 com-
mittees 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 Gov-
ernment (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 fed-
eral 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
Organisation and working methods
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 recommen-
dations included on the agenda of the Bundesrat. However, in prac-
tice 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-by-
case 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 Advi-
sory Council in the light of cabinet deliberations. At this preparato-
ry 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 “prelim-
inary 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 ple-
nary 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 roles played by the Bundesrat
6. Statutory instruments
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 peri-
ods 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 pow-
ers 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.
34
The roles played by the Bundesrat
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 solu-
tions. 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.
35
The roles played by the Bundesrat
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.
36
The roles played by the Bundesrat
The provisions of the Basic Law indicate which bills require Bun-
desrat approval. They can be classified in three groups:
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 exam-
ple, 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
The roles played by the Bundesrat
Draft bill
Opinion
Counter-statement
Decision by Bundestag
Bill passed Bill rejected
Bill fails
Decision by Bundesrat
Adoption Referral to MC Rejection
Counter-signature
Federal President: Bills may be introduced in the Bundestag by the federal government, the
Signature and Bundesrat or by members of the Bundestag (Article 76, sub-section 1,
promulgation of law
Basic Law).
This flow chart depicts the procedure for a bill introduced by the federal
government (the most frequent scenario for legislation).
Draft bill
Opinion
Counter-statement
Decision by Bundestag
Bill passed Bill rejected
Bill fails
Decision by Bundesrat
Approval Referral to MC
Decision by Bundesrat
Agreement Objection with Objection with
absolute majority 2/3 majority
Counter-signature
Federal President:
Signature and
promulgation of law
The roles played by the Bundesrat
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 con-
sent 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 Bun-
desrat 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 grant-
ing 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 sub-
stantial percentage of legislation, particularly as new cases requir-
ing consent have been introduced in the area of finance. The Bun-
destag 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 con-
sideration. 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
The roles played by the Bundesrat
Rather than going their own way, both assemblies ought to show
moderation and seek a fair balance, demonstrating mutual under-
standing and reciprocal consideration, values that both the Bun-
destag 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 Bundestag considers this draft legislation using the same pro-
cedure as for draft bills introduced by the Federal Government and
41
The roles played by the Bundesrat
6. Statutory instruments
The Highway Code, which affects almost everyone, is not passed
by the Bundestag; instead this legislation is adopted by the Feder-
al Minister of Transport with Bundesrat consent. It is an example of
federal administration involving the Bundesrat.
42
The roles played by the Bundesrat
43
The roles played by the Bundesrat
44
The roles played by the Bundesrat
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 pre-
vent an international agreement from coming into force for Ger-
many. The Maastricht Treaty concerning the deepening of the Euro-
pean Communities into the European Union, to mention just one
example, required the Bundesrat’s consent. Other types of agree-
ment subject to the Bundesrat’s approval include agreements on
disaster relief, administrative and judicial cooperation, tax law, pen-
sion law, the protection of capital investments, and environmental
protection.
If the Basic Law does not require consent for national implementa-
tion 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
The roles played by the Bundesrat
right of objection (in the second reading). In such cases, the Bun-
destag 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.
46
The roles played by the Bundesrat
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 con-
sent 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.
47
The Basic Law stipulates that the Bundesrat is a constitutional
body, just like the Bundestag, the Federal Government, the Feder-
al 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.
The status of the Bundesrat
A second chamber?
The mandate
49
The status of the Bundesrat
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 vot-
ing. They would argue that these specific features mean one can-
not 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 con-
stituent states differ from the yardstick taken when considering a
body that represents the people.
Switzerland USA
50
Die Aufgaben
The status
des
ofBundesstaates
the Bundesrat
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 pro-
visions of the Basic Law. The Bundesrat can certainly be cate-
gorised 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 mere-
ly 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 Klaus Wowereit,
equitable and reasonable decisions. Democracy is also a President of the
life form that needs tangible possibilities to develop its Bundesrat
potential. The federal states and above all the municipali- (2001/02)
ties and districts are and will remain the most appropriate
place for that.”
51
The status of the Bundesrat
The mandate
The basic idea underlying the democratic and federal constitution
of Germany is the division of powers. The Federation and the fed-
eral 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 fea-
ture 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 Federa-
tion. This principle is put into practice through the Bundesrat.
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
The status of the Bundesrat
The “interests of the federal states” in this sense are clearly con-
cerns 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 Ger-
many and in the European Union context.
How tax revenues are shared between the Federation and the
federal states.
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 “inter-
ests of the federal states” and the “interests of citizens”, given that
democratic states exist to serve their citizens? It is certainly impos-
sible to draw a clear-cut distinction.
53
The status of the Bundesrat
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 appar-
ent 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 Bun-
desrat 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 com-
prehensive right of scrutiny, meaning that it can also reject the bill
due to other provisions that do not fall directly into the consent cat-
egory. The right to receive comprehensive information from the Fed-
eral Government, the participation of the Bundesrat when the state
of defence applies and its status as a “reserve of legality” in leg-
islative emergencies are also manifestations of the responsibility the
Bundesrat shoulders for the whole country, a role that extends far
beyond defending regional interests.
54
The status of the Bundesrat
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 our-
selves or our ideas.”
55
The status of the Bundesrat
More relaxed fronts Party political camps emerge particularly clearly in the Bundesrat
when the majorities in the Bundestag and Bundesrat come from dif-
ferent 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 fed-
eral 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.
56
The status of the Bundesrat
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 Feder-
al 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.
Monitoring and
Basic Law § taking corrective
action – relations
between the
constitutional bodies
Bundestag
Bundesrat
Federal government
57
The status of the Bundesrat
The party political mix in the Bundesrat and Bundestag may dif-
fer, 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 Gov-
ernment 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.
58
The status of the Bundesrat
59
The status of the Bundesrat
Sharing in Much of the Bundesrat’s political significance derives from the sig-
decisions 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 pos-
itive, if one does not overemphasise the kind of exceptional situa-
tion described above; it is also important to bear in mind that unusu-
al 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 status of the Bundesrat
In other words, the Bundesrat is both the body that represents the fed-
eral states to the Federation and the body that represents the Feder-
ation to the federal states. This “mediator role” is particularly important
given the close interlinking between the competences of the Federa-
tion and the federal states, which are much more closely intermingled
than, for example, in the USA. The Bundesrat must defend the inter-
ests of the individual federal states, whilst at the same time also bear-
ing 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 inter-
ests 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.
61
The status of the Bundesrat
Federal Council of The Federal Council of the 1871 German Empire was a true prede-
the 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 pow-
ers 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 Parlia-
ment 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 Presi-
dent 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.
62
The status of the Bundesrat
ereign rights of the federal states had already been transferred to the
Reich, the federal state parliaments had been dissolved and the gov-
ernments of the Länder had been placed under the control of the
Reich government.
63
The status of the Bundesrat
5
20 200
00
3
0
3
19 6
19 98
19 1
19 5
19 0
19 4
–8
–8
–5
–5
–6
–6
–7
–7
–8
–6
–9
–9
–2
Bundestag’s
–
80
76
49
53
57
65
69
72
83
87
90
94
61
98
02
term of office
19
19
19
19
19
19
19
19
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 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
Mediation Committee (MC) 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
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
European Community/
Union legislation 24 478 826 759 1017 660 405 634 769 783 746 604 511
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