The Bundesrat and the federal state system

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1 Internet The Bundesrat Information about the federal states Bills and ordinances adopted by the Federation Subject-specific sites/federalism The European Centre for Federalism Research in Tübingen is planning to develop an online documentation resource on federalism. The Centre s homepage offers a broad range of links offering more information. International servers Committee of the Regions European Union Austrian Legal Information System Swiss server for legal experts This brochure invites you to find out about the Bundesrat. It is a striking splash of colour in the ranks of legislative bodies. The Bundesrat s composition and the range of roles it fulfils are entirely unique. Germany s federal system is the framework within which the Bundesrat s particular meaning and significance emerge. The brochure opens with an introduction to the key traits of German federalism, in which the parliament of the federal states governments forms a link between the central federal level and the individual federal states. This is followed by an explanation of the Bundesrat s composition, organisation and working methods. A brief historical overview offers insights into the constitutional tradition in which the Bundesrat is embedded. An index assists readers looking for specific terms. A bibliography and some Internet links are provided for readers who would like to do more reading on the subject. Bundesrat Public Relations Berlin Germany We would be delighted to send you further copies of this brochure or other information material about the Bundesrat or federalism free of charge. Photos: Bundesrat, Press and Information Office of the Federal Government, Bernhard Kroll, Torsten Saffir Printed by: ISBN: The Bundesrat and the federal state system The Federal Council of the Federal Republic of Germany Contents Inhalt The federal state system A federal constitutional body 4 Federalism unity in diversity 5 Distinct roles and shared responsibilities 10 Organisation and working methods The seat of the Bundesrat 14 The Plenary session 14 Distribution of votes 16 The members 17 The President and the Presidium 18 Voting 20 Plenary sessions 23 The Chamber of European Affairs 24 The committees 25 The Mediation Committee 27 The Bundesrat s working methods 29 The roles played by the Bundesrat The Bundesrat a federal body 34 The roles played by the Bundesrat Submitting opinions on draft government bills Convening the Mediation Committee Taking decisions on consent bills Participating in addressing objection bills Bundesrat draft bills Statutory instruments Consent to general administrative regulations European Union draft legislation Participation in foreign affairs Right to be informed by the Federal Government Other roles 47 The status of the Bundesrat A second chamber? 50 The mandate 52 Taking decisions as a federal constitutional body 53 Taking decisions as a political constitutional body 54 Counterweight involved in monitoring the Federal Government 56 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 Index Internet

2 Coats of arms of the Federation and the 16 federal states Distribution of votes in the Bundesrat Total of 69 votes Bibliography Index of topics Baden- Württemberg Area: km 2 Berlin Area: 891 km 2 Bremen Area: 404 km 2 Hesse Area: km 2 Lower Saxony Area: km 2 Rhineland- Palatinate Area: km 2 Saxony Area: km 2 Schleswig-Holstein Area: km 2 Bavaria Area: km 2 Brandenburg Area: km 2 Hamburg Area: 755 km 2 Mecklenburg-Western Pomerania Area: km 2 North Rhine- Westphalia Area: km 2 Saarland Area: 2569 km 2 Saxony-Anhalt Area: km 2 Thuringia Area: km 2 North-Rhine Westphalia 18,0 million Bonn Düsseldorf Rhineland-Palatinate 4,0 million Saarland 1,0 million Lower Saxony 8,0 million Mainz Saarbrücken Each federal state has at least three votes Schleswig-Holstein 2,8 million Bremen Wiesbaden Stuttgart Baden-Württemberg 10,7 million States with more than 2 million inhabitants have four votes Hannover Kiel Hamburg 1,8 million Schwerin Hamburg Bremen 0,7 million Hesse 6,1 million Magdeburg Potsdam Saxony-Anhalt 2,4 million Erfurt Thuringia 2,3 million Bavaria 12,5 million Munich States with more than 6 million inhabitants have five votes States with more than 7 million inhabitants have six votes Mecklenburg-Western Pomerania 1,7 million Berlin Brandenburg 2,5 million Dresden Saxony 4,2 million Berlin 3,4 million map: Bundesamt für Kartographie und Geodäsie Total population 82.1 million Source: Federal Statistical Office, Works of collected articles on the Bundesrat Handbuch des Bundesrates / Bundesrat (Ed.), New edition annually Der Bundesrat im ehemaligen Preußischen Herrenhaus / Bundesrat (Ed.), 2002 Der Bundesrat / Ziller, Gebhard/Oschatz, Georg-Berndt, 10th edition 1998 Der Bundesrat. Mitwirkung der Länder im Bund / Pfitzer, Albert, 4th edition 1995 Praxishandbuch Bundesrat: verfassungsrechtliche Grundlagen, Kommentar zur Geschäftsordnung, Praxis des Bundesrates / Reuter, Konrad, 1991 Miterlebt Mitgestaltet. Der Bundesrat im Rückblick / Hrbeck, Rudolf (Ed.), 1989 Das Parlament der Regierenden. 40 Jahre Bundesrat. Eine Chronik seiner Präsidenten / Herles, Helmut, Essays on the Bundesrat Bundestag und Bundesrat bei der Umsetzung von EU-Recht / Zeh, Wolfgang / In: Der Politikzyklus zwischen Bonn und Brüssel / Derlien, Hans-Ulrich et al (Ed.), 1999, pp Das parlamentarische Regierungssystem und der Bundesrat Entwicklungsstand und Reformbedarf / Dolzer, Rudolf/Sachs, Michael / In: Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, Vol. 58, 1999, pp Die Rolle des Bundesrates und der Länder im Prozeß der deutschen Einheit / Klein, Eckart (Ed.), Schriftenreihe der Gesellschaft für Deutschlandforschung, Vol. 66, 1998 Zusammensetzung und Verfahren des Bundesrates / Herzog, Roman / In: Handbuch des Staatsrechts der Bundesrepublik Deutschland / Isensee/Kirchhof (Ed.), Vol. 2, 2nd edition 1998, pp Works of collected articles on federalism Die deutschen Länder: Geschichte, Politik, Wirtschaft / Hans-Georg Wehling (Ed.), 2nd edition 2002 Ende des Föderalismus: Gleichschaltung und Entstaatlichung der deutschen Länder von der nationalsozialistischen Machtergreifung bis zur Auflösung des Reichrats / Talmon, Stefan, in: Zeitschrift für neuere Rechtsgeschichte, 24 (2002), pp Föderalismus: Analysen in entwicklungsgeschichtlicher und vergleichender Perspektive / Benz, Arthur (Ed.), Deutsche Vereinigung für Politische Wissenschaft, Politische Vierteljahresschrift, Sonderheft, 32/2001 German federalism: past, present, future / ed. by Maiken Umbach. 1. publ. Basingstoke [et al.]. Palgrave, 2002 Föderalismus in Deutschland / Bundeszentrale für politische Bildung (Ed.), Informationen zur politischen Bildung, No. 275, 2002 Föderalismus: eine Einführung / Sturm, Roland/ Zimmermann-Steinhart, Petra, 2005 Das föderative System der Bundesrepublik Deutschland / Laufer, Heinz/Münch, Ursula, 7th edition 1997 Föderalismus in der Bundesrepublik Deutschland: eine Einführung / Kilper, Heiderose, 1996 Föderalismus: Grundlagen und Wirkungen in der Bundesrepublik Deutschland / Reuter, Konrad, 5th edition 1996 Zustand und Perspektiven des deutschen Bundesstaates / Blanke, Hermann-Josef/Schwanengel, Wito (Ed.), 2005 Föderalismusreform in Deutschland / Hennecke, Hans- Günter (Ed.), 2005 Dokumentation der Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung / Deutscher Bundestag, Bundesrat, Öffentlichkeitsarbeit (Ed.), 2005 Europäischer Föderalismus im 21. Jahrhundert / Europäisches Zentrum für Föderalismusforschung (Ed.), 2003 Der deutsche Bundesstaat in der EU: die Mitwirkung der deutschen Länder in EU-Angelegenheiten als Gegenstand der Föderalismus-Reform / Hrbek, Rudolf, in: Europa und seine Verfassung/Gaitanides, Charlotte (u.a.) (Ed.), 2005, pp Föderalismus und Integrationsgewalt: die Bundesrepublik Deutschland, Spanien, Italien und Belgien als dezentralisierte Staaten in der EG / Blanke, Hermann-Josef, 1991 Abstention 22 Agenda 23, 26, 31 Bill passed by the Bundestag 28, 38f., 64 Bound by instructions 21, 27, 50 Budget 20 Bundesrat (Kaiserreich) 62 Bundestag 4, 18, 36, 44f., 47, 59ff. Call to order 23 Casting of votes 17, 20ff. Casting votes en bloc 20f. Centralised state 5ff. Chamber of European Union Affairs 24ff., 44 Chamber of the federal states 34, 50, 54f., 61 Checks and balances, system of controls 6ff., 56ff. Coalition government 20 Coat of arms 23 Committees 18f., 25ff., 30, 46 Committee members 25ff. Committee meetings 18, 27, 56, 64 Consent bill 28, 36ff., 59, 64 Distribution of votes 16 Division of powers 4ff., 10f., 59f. Draft bill 35f Draft bill introduced by the Bundesrat 38f., 64 Draft bill introduced by the Bundestag 36f. Draft bill introduced by the federal government 30, 35f., 64 Elections 14f., 60 European Union 11, 30, 53 Federal Constitutional Court 4, 19, 37f., 48ff. Federal Government 4, 26, 35f., 42ff., 56ff., 61 Federal President 4, 19, 37, 48 Federal state 3ff., 40, 52f., 59 Federalism 4ff., 34, 52 Foreign policy 44ff., 57 Incompatibility 18 Interests of the federal states 32ff., 52ff., 58ff. Länder governments 14ff. Länder parliaments 7 Landesvertretung, representative office of federal state 20, 31 Legal ordinance 42f., 57, 64 Legislative emergency 47, 54 Legislative procedure 34ff., 51 Mediation Committee 27ff., 36ff., 43, 64 Meeting/session Bundesrat plenary session 23f., 29f., 64 Meeting of the Chamber of European Affairs 24f., 44, 64 Meeting of Bundesrat Committees 25ff., 30f., 64 Meeting of Mediation Committee 27ff., 36 Member Members of the Bundesrat 14ff., 27 Member of Bundesrat committee 25ff. Member of the Chamber of European Affairs 25 Member of the Mediation Committee 27f. Minute-taker 23, 29 Minutes of the meeting 21, 23, 31 Objection bill 38ff. Official document 30f. Opposition 14, 56 Parliamentary Council 6, 55 Parliamentary group 27 Party politics 54ff. Permanent Advisory Council 20, 31 Plenary 13ff., 18ff., 23, 30 Plenary session 14f. President of the Bundesrat 18ff., 22, 25, 46 Presidium 18ff., 22 Prior discussion 31 Question time 46 Regionalisation 9 Reichsrat 62 Right to information 46 Seat of the Bundesrat 14 Second chamber 51f. Second reading 30, 36, 46 Secretariat of the Bundesrat 19, 31 Secretary-General of the Bundesrat 19, 23, 29 Speaking right Speaking right: Member of the Bundesrat 18, 23 Speaking right: Member of the federal government 26,46 State of defence 47, 54 Statistics 64 Stenographers 23 Subsistence allowance 18 Vice-President 18 Vote 20f., 24 Vote-caster 21, 45

3 The Bundesrat and the federal system The Federal Council of the Federal Republic of Germany Author: Dr. Konrad Reuter Editor: Secretary General of the Bundesrat Berlin th edition

4 16 federal states or Länder make up the Federal Republic of Germany. The federal system means that many political decisions are taken in the federal states. This principle is enshrined in the Basic Law. However, the Bundestag and the Federal Government cannot determine everything on their own even when it comes to national matters at the federal level. Through the Bundesrat the federal states also have a say in Berlin.

5 The federal state system A federal constitutional body Federalism unity in diversity Distinct roles and shared responsibilities

6 The federal state system A federal constitutional body The Bundesrat is one of the five permanent constitutional bodies of the Federal Republic of Germany. Alongside the other components of the federal system the Federal President, the Bundestag (Federal Parliament), the Federal Government and the Federal Constitutional Court the Bundesrat is the body within the federal structure that represents the interests of the federal states. The Bundesrat participates in the Federation s policy decisions and thus acts as a counterweight to the political bodies representing the federal tier, namely the Bundestag and the Federal Government, as well as constituting a link between the Federation and the federal states. Its status and function are described in Article 50 of the Basic Law, which since 1992 has also included an explicit reference to the European dimension of policy: Article 50 BL The Länder shall participate through the Bundesrat in the legislation and administration of the Federation and in matters concerning the European Union. The significance of this constitutional provision is most clearly revealed if one first considers the backdrop to it: the way in which the state is structured, comprising the Federation (central authority) and the federal states (Länder) in other words, the specific form federalism assumes in Germany. Federalism has long been the form of state organisation adopted in Germany, creating state unity whilst at the same time setting limits on this within the federal system, and thus ensuring that the notion of unity is not given excessive weight. The five permanent constitutional bodies of the Federation Federal President Federal government Bundesrat Federal Constitutional Court Bundestag Article 20 (2) BL All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies. 4

7 The federal state system Federalism unity in diversity The term federalism is derived from the Latin word foedus, which can be translated as alliance or treaty. Federalism means forming a federal state and cooperating within the entity thus formed: several states enter into an alliance to form one single all-encompassing state structure (federation, confederation), whilst to a certain extent maintaining their own characteristics as states (federal states, constituent states). This contrasts with other forms of state organisation, such as on the one hand the centralised state (unitarism), which does not have autonomous sub-units, and on the other hand the confederation. The latter is a union of states under international law, in which the individual states remain entirely independent and their union does not per se constitute a state. The German Confederation, which existed from 1815 to 1866, was an alliance of this type. In a federal state, the state as a whole should be responsible for those matters that absolutely must be regulated in a uniform manner in the interests of the people. The federal tier of government should however restrict its actions to this specific role, for all other matters should be regulated by the constituent member states. As a consequence, while many aspects in a federal system are harmonised, a range of other areas are not covered by uniform provisions. Unity in diversity is the fundamental principle underlying any genuine federal state. It is even stated in the constitution that this fundamental principle is inviolable and unalterable. Article 79 (3), Basic Law provides: Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible. Article 79 (3) BL 5

8 The federal state system As long as the Basic Law remains in force, there is thus an obligation to preserve the underlying fabric of the federal structure. However, that does not mean that there is no need to ponder the meaning and purpose of federalism. On the contrary, federalism would be in rather poor shape if it were merely perceived as an unalterable system. Modern form of state In 1949 the Parliamentary Council opted for the federative principle of state organisation, because it also implied a further division of political power between the federation and the federal states (vertical division of power), in addition to the classical division of power between the legislature, the executive and the judiciary (horizontal division of power). This twofold division of powers serves as an effective means to prevent abuse of power by any part of the system. That is why right from the outset one of the goals of the peaceful revolution in the former GDR in 1989 was the reintroduction of the federal states or Länder in former East Germany, However, no form of statehood is perfect except perhaps theoretically. For that reason, the pros and cons must always be weighed up against each other. In a democracy, the litmus test is the response to a straightforward question: how does this benefit the people? The focus should be on the citizens not on a rapid, powerful state apparatus. Federation Legislature (legislation) Executive (government and administration) Judiciary (administration of justice) Länder input and participation in decision-making by the Federation and influence of central government on the Länder Twofold division of powers within the federal state system 16 federal states 6

9 The federal state system Advantages of the federal state system compared with the unitary state Power-sharing In a federation, the classical horizontal division of powers (legislative executive judicial) is complemented by a vertical division of powers between the state as a whole and the individual constituent states. Power-sharing means control of how power is used and protection against abuse of this power. More democracy The sub-division into smaller political units makes it easier to grasp and comprehend the actions taken by the state, thus fostering active participation and co-determination. In addition, voters can exercise the fundamental democratic right to vote and thus to participate in decisions on two fronts, for in a federal state there are elections both to the central parliament and to the parliaments of the constituent states. Leadership opportunities Political parties enjoy greater opportunities and competition between them is promoted, as minority parties at national level can nonetheless take on political responsibility in the individual states making up the federation. This offers them a chance to test and demonstrate their leadership skills and overall performance. Closer to the issues In a federation public bodies are closer to regional problems than in a unitary state. There are no far-flung forgotten provinces. Closer to people The federal state brings state structures much closer to the general public. Politicians and public authorities are much more accessible than in a unitary state that concentrates power in an anonymous, distant centre. Competition The constituent states always automatically compete with each other. Competition has a stimulating effect. Exchanges of experience foster progress and serve as a safeguard, ensuring that any mistakes are not repeated across the whole country. 7

10 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. Ultimately these arguments in favour of federalism prove to be advantages for each individual citizen. Whilst the federal system may certainly have disadvantages too, these benefits clearly outweigh the drawbacks. Disadvantages of the federal state system compared with the unitary state 8 Lack of uniformity The federal states autonomy automatically leads to differences. Diversity is the opposite of uniformity. This can cause difficulties, for example, for school children if their family moves to another federal state. Complicated As there are many decision-making centres in the Federal Republic of Germany, the division of powers between the Federation and the federal states means the various tiers of state must work together, show consideration, exercise mutual oversight and also respect the limits of each part of the federal structure. The ensuing intermeshing of state activities is thus complex and can be hard for the general public to understand. Time-consuming Parliaments, governments and the public administrations of the Federation and the Länder have to wait for input, decisions or con-

11 The federal state system 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, given its adaptability, a form of statehood very much in tune with our 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. A form of state with a future Just as the Länder have made a decisive contribution to integrating the plurality of cultural and social traditions into the nation-state, the regions within a united Europe will be essential participants in allowing diversity to merge into political unity. Kurt Beck, President of the Bundesrat (2000/2001) 9

12 The federal state system Distinct roles and shared responsibilities Division and intermeshing The Basic Law ascribes particular roles to the Federation and the federal states in the spheres governed by the legislature, executive and judiciary. Generally speaking, it is fair to say that the Federation is responsible for legislation in most spheres, administration is in essence handled by the federal states and responsibilities in the judicial sphere are closely intermeshed, involving both the Federation and the federal states. Nonetheless, the federal states also have significant legislative responsibilities, particularly for policies on culture and education, local government law and the police forces. Similarly the Federation also has a fully-fledged administrative substructure in certain areas, for example for the foreign services, the armed forces and employment offices. Generally however the following principle applies: Legislation is on the whole dealt with by the Federation. Public administration is on the whole a matter for the federal states. This division of responsibilities gives the Federation a powerful position, as it can establish uniform standards for all federal states and the population at large through its overarching legislative competence. However, the federal states and this is an important compensatory mechanism may participate in the Federation s legislative process via the Bundesrat: federal laws that particularly affect the concerns of the federal states may only be adopted with the explicit consent of the Bundesrat. As a consequence, on the one hand the Länder are subject to the will of the Federation, which limits their political autonomy; on the other hand, however, they can have an 10

13 The federal state system influence on the Federation s deliberations and thus contribute to the emergence of this federal will. The Federation and the federal states are closely interlinked. The Bundesrat constitutes a link binding the Federation and the federal states. Its role is to ensure that irreconcilable contradictions do not arise between the central state and the individual federal states although responsibilities are divided between the various tiers of state. The Bundesrat forms a bond The Bundesrat s role as mediator determines its constitutional status and its composition: The Bundesrat is a constitutional body of the federation, but it is made up of representatives of the federal states. This in a sense compensates the federal states for the fact that they have to a large extent relinquished their independent legislative competence, and also grants them the right to have a say when the Federation devises administrative provisions. Through the Bundesrat the federal states also have an opportunity to participate in matters pertaining to the European Union. The Bundesrat is a body of the (federal) legislative, but it is made up of members of the (federal states ) executive bodies. This structure means that federal legislation can draw directly on the administrative experience of the federal states. The Bundesrat has been described as probably the most original German contribution to federalism. The structure, organisation and remit of the Bundesrat is quite unique among second chambers and can ultimately only be understood properly if one considers the long constitutional tradition embodied by the Bundesrat. The Basic Law takes the idea of federalism based on solidarity. Germans from former East Germany made a conscious decision to opt for this inner unity after the fall of the Wall. We should understand the call for more competition as a complement to the solidarity principle rather than as a substitute for it. Matthias Platzeck, President of the Bundesrat (2004/2005) 11

14 Who is represented in the Bundesrat, who is authorised to take part in deliberations there, who may vote? How do the decision-making processes work? This chapter presents the membership and structure of the various bodies in the Bundesrat. The focus is on presenting how the Bundesrat s day-to-day work is done, a topic rarely addressed directly in the media. The atmosphere, style and working methods are significantly different from those in the Bundestag: work in the Bundesrat has a different rhythm and functions according to a distinct procedure.

15 Organisation and working methods The seat of the Bundesrat The plenary session Distribution of votes The members The President and the Presidium Voting Plenary sessions The Chamber of European Affairs The committees The Mediation Committee The Bundesrat s working methods

16 Organisation and working methods The seat of the Bundesrat The move from Bonn to Berlin On 1st August 2000 the building at Leipziger Straße 3 4 formerly occupied by the Herrenhaus (House of Lords), the upper chamber of the Prussian parliament, became the Bundesrat s seat in Berlin. There is also a branch office in the federal city of Bonn. Some committees meet there regularly several times a year. Before August 2000 the Bundesrat s official seat had been in the Bundeshaus in Bonn, along with the Bundestag, ever since the Bundesrat s first constitutive meeting on 7th September 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 The plenary session The essence of the Bundesrat is the assembly of all its members, the plenary session. Its composition is stipulated in Article 51 of the Basic Law: Article 51 (1) BL The Bundesrat shall consist of members of Land governments, which appoint and recall them. That means that in order to be a member of the Bundesrat, one must have a seat and a say in a government at federal state level. The government in each of the federal states decides which of its members will be appointed to the Bundesrat. However, the number of full members each federal state may appoint to the Bundesrat is determined by the number of votes that state holds in the Bundesrat. The remaining members of the cabinets in the federal states are however generally appointed as alternate members of the Bundesrat, which means that in practice all the members of a Land government belong to the Bundesrat. All of the c. 170 appointed members de facto enjoy exactly the same rights, as the Bundesrat s rules of procedure grant the same rights to alternate and full members. The Bundesrat is a parliament of the federal states governments. There is no scope for the opposition in the various federal states to make its voice heard directly in the Bundesrat. 14

17 Organisation and working methods There is no such thing as elections to the Bundesrat, and thus the Bundesrat does not have legislative terms as such. In constitutional parlance it is a permanent body, whose membership is renewed from time to time as a consequence of elections at federal state level. As a result, elections to the parliaments in the federal states always have nationwide political significance too. As early as the 1950s the slogan was: Your vote in the Hesse state decides who's on the Bundesrat's slate. Whilst voters first and foremost determine the composition of the parliament in their federal state and thus which party or parties will govern their federal state, at the same time this indirectly determines who will have a seat and a say in the Bundesrat, for the majority in each Land parliament makes up the government of that federal state, which in turn appoints members from its ranks to the Bundesrat. This procedure is also the foundation stone for the Bundesrat s democratic legitimacy, as its composition is determined by elections expressing the will of the people. The political power exercised by the Bundesrat stems from the electorate. A permanent body Bundesrat Land government Landtag (federal state parliament) Electorate (in each federal state) 15

18 Organisation and working methods Distribution of votes States and population figures New rules in the united Germany Article 51 (2) GG Must all of the constituent states have the same number of representatives in the federative body representing them at national level for example, with each individual state having two senators, as is the case in the US Senate? Or would it be fairer and more democratic to take population figures as the yardstick, which would mean that North Rhine-Westphalia, for example, would have 26 times more votes than Bremen? An integral part of the constitutional DNA in Germany is the principle of a weighting system for the number of votes allocated to represent each of the constituent states. Whilst the system is shaped by population figures in each federal state, this is not the only decisive element. Each of the federal states united in the overall state structure also counts in its own right. The result is a system that is a hybrid of federative and democratic representation. However, the Basic Law definitely wished to avoid a structure that would allow the larger federal states to overrule the others, whilst at the same time not making it possible for the smaller federal states to have more power than their size would merit. When the Basic Law was adopted in 1949 each of the federal states was therefore allocated at least three votes, those with over two million inhabitants were granted four votes, while five votes were given to the federal states with a population of more than six million. The introduction of the five relatively small federal states from the 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 A fourth category of voting rights was established, allocating six votes to federal states with a population of more than seven million. 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

19 Organisation and working methods The number of votes in each of the federal states is indicated on the front flap. The Bundesrat has a total of 69 votes and thus 69 full members. Accordingly, 35 votes are needed for an absolute majority, which is generally necessary to adopt a decision, whilst 46 votes are required for the two-thirds majority stipulated in certain instances. The members Only the Minister-Presidents and Ministers in the federal states, (or Mayors and Senate members in the case of the city-states of Berlin, Bremen and Hamburg) may be members of the Bundesrat. State 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 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 each federal state must vote en bloc in the Bundesrat. Being a member of the Bundesrat does not therefore give members a free mandate 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. Only cabinet members from the federal states Dual function The mandate each federal state votes en bloc 17

20 Organisation and working methods If no decision can be reached on how votes are to be cast and the representatives of a particular Land therefore do not all cast the same vote in the Bundesrat, that federal state s vote is not valid. Due to the absolute majority required to adopt decisions in the Bundesrat, the final outcome of this kind of non-uniform voting is tantamount to the federal state casting a no vote or abstaining. Any member of the Bundesrat present in the meeting can therefore undermine a vote in favour of a motion. Members of the Bundesrat are not remunerated for their work in the Bundesrat. They merely receive a subsistence allowance, along with a per-kilometre allowance for road and air travel; members of the Bundesrat are entitled to free tickets for rail travel. Speaking rights in the Bundestag Members of the Bundesrat enjoy an important right, which one might even describe as a prerogative, pursuant to Article 43 of the Basic Law: they may attend all sessions of the Bundestag and its committee meetings and have the right to be heard there at all times. Furthermore, they may also appoint representative to exercise this right on their behalf. Members of the Bundestag do not enjoy similar opportunities to provide information and present their position in the Bundesrat. Dual membership of the Bundesrat and Bundestag is prohibited. The two offices cannot be combined (incompatibility). The President and the Presidium Annual rotation among the Minister-Presidents All the federal states have equal rights when it comes to the most senior position representing the Bundesrat: every year one Minister- President is elected to this position. The order is determined as a function of the population figures of the various federal states and the cycle begins with the head of government in the most populous federal state. The Minister-Presidents agreed upon this system in 1950 in Königstein/Taunus. One of the merits of this Königstein Agreement is that each of the federal states assumes the presidency once every sixteen years, although the main advantage is certainly that appointments to this position are not subject to shifting majorities and party political considerations. 18