The federal state system

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

http://www.bundesrat.de the federal state system The seat of the Bundesrat

The Plenary session
Distribution of votes
14
14
16
Bills and ordinances adopted by the Federation
The members 17
http://www.bundesrecht.juris.de/bundesrecht/GESAMT_a.html The President and the Presidium 18
Voting 20
Plenary sessions 23
Subject-specific sites/Federalism The Chamber of European Affairs 24

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

Printed by: www.diekoordinaten.de

the Federal Republic of Germany The Bundesrat – a federal body 34
This brochure invites you to find out about the Bundesrat. It is a strik- The roles played by the Bundesrat 34
International servers 1. Submitting opinions on draft government bills 35
ing splash of colour in the ranks of legislative bodies. The Bundesrat’s
Committee of the Regions 2. Convening the Mediation Committee 36
composition and the range of roles it fulfils are entirely unique. 3. Taking decisions on consent bills 36
http://www.cor.europa.eu Germany’s federal system is the framework within which the 4. Participating in addressing objection bills 41
European Union Bundesrat’s particular meaning and significance emerge. 5. Bundesrat draft bills 41
6. Statutory instruments 42
http://www.europa.eu

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

map: © Bundesamt für Kartographie und Geodäsie

Area: 47641 km2 Area: 34086 km2 Saarbrücken der deutschen Einheit / Klein, Eckart (Ed.), Schriften-
Bavaria reihe der Gesellschaft für Deutschlandforschung, Vol. 66, Wito (Ed.), 2005 Elections 14f., 60 Right to information 46
12,5 million 1998 European Union 11, 30, 53
Föderalismusreform in Deutschland / Hennecke, Hans- Seat of the Bundesrat 14
Zusammensetzung und Verfahren des Bundesrates / Günter (Ed.), 2005 Federal Constitutional Court 4, 19, 37f., 48ff. Second chamber 51f.
Stuttgart
Herzog, Roman / In: Handbuch des Staatsrechts der Dokumentation der Kommission von Bundestag und Federal Government Second reading 30, 36, 46
Rhineland- Bundesrepublik Deutschland / Isensee/Kirchhof (Ed.),
Palatinate Saarland Baden-Württemberg Bundesrat zur Modernisierung der bundesstaatlichen 4, 26, 35f., 42ff., 56ff., 61 Secretariat of the Bundesrat 19, 31
Area: 19853 km2 Area: 2569 km2 10,7 million Vol. 2, 2nd edition 1998, pp. 505– 522 Ordnung / Deutscher Bundestag, Bundesrat, Öffentlich- Federal President 4, 19, 37, 48 Secretary-General of the Bundesrat
Munich keitsarbeit (Ed.), 2005 Federal state 3ff., 40, 52f., 59 19, 23, 29
Europäischer Föderalismus im 21. Jahrhundert / Federalism 4ff., 34, 52 Speaking right
Europäisches Zentrum für Föderalismusforschung (Ed.), Foreign policy 44ff., 57 – Speaking right: Member of the Bundesrat
2003 18, 23
Incompatibility 18
– Speaking right: Member of
Saxony Saxony-Anhalt Der deutsche Bundesstaat in der EU: die Mitwirkung Interests of the
Area: 18417 km2 Area: 20447 km2 – the federal government 26 ,46
der deutschen Länder in EU-Angelegenheiten als federal states 32ff., 52ff., 58ff.
State of defence 47, 54
Gegenstand der Föderalismus-Reform / Hrbek, Rudolf,
Länder governments 14ff. Statistics 64
in: Europa und seine Verfassung/Gaitanides, Charlotte
Each federal state has at States with more than 6 million (u.a.) (Ed.), 2005, pp. 256–273 Länder parliaments 7 Stenographers 23
least three votes inhabitants have five votes Landesvertretung, representative Subsistence allowance 18
Föderalismus und Integrationsgewalt: die
office of federal state 20, 31
Schleswig-Holstein Thuringia Bundesrepublik Deutschland, Spanien, Italien und Vice-President 18
Legal ordinance 42f., 57, 64
Area: 15799 km2 Area: 16172 km2 States with more than 2 million States with more than 7 million Total population 82.1 million Belgien als dezentralisierte Staaten in der EG / Vote 20f., 24
inhabitants have four votes inhabitants have six votes Source: Federal Statistical Office, 2008 Blanke, Hermann-Josef, 1991 Legislative emergency 47, 54
Vote-caster 21, 45
Legislative procedure 34ff., 51
The Bundesrat and
the federal system
The Federal Council of the Federal
Republic of Germany

Author: Dr. Konrad Reuter

Editor: Secretary General of the Bundesrat

Berlin 2009 – 14th edition

16 federal states or Länder make up the Federal Republic of Ger-
many. 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 can-
not determine everything on their own even when it comes to
national matters at the federal level. Through the Bundesrat the
federal states also have a say in Berlin.
The federal state system

A federal constitutional body

Federalism – unity in diversity

Distinct roles and shared responsibilities

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 (Fed-
eral Parliament), the Federal Government and the Federal Constitu-
tional Court – the Bundesrat is the body within the federal structure
that represents the interests of the federal states. The Bundesrat par-
ticipates 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 con-
stituting a link between the Federation and the federal states. Its sta-
tus 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 legisla-
tion 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 feder-
alism assumes in Germany. Federalism has long been the form of
state organisation adopted in Germany, creating state unity whilst at
the same time setting limits on this within the federal system, and
thus ensuring that the notion of unity is not given excessive weight.

Federal President
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

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: sever-
al 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, con-
stituent 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 indi-
vidual 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 funda-
mental principle underlying any genuine federal state.

It is even stated in the constitution that this fundamental principle is

inviolable and unalterable. Article 79 (3), Basic Law provides:

“Amendments to this Basic Law affecting the division of the Feder- Article 79 (3) BL
ation into Länder, their participation on principle in the legislative
process, or the principles laid down in Articles 1 and 20 shall be
inadmissible.”

5
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 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)

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
 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 (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.

Ultimately these arguments in favour of federalism prove to be advan-

tages for each individual citizen. Whilst the federal system may cer-
tainly have disadvantages too, these benefits clearly outweigh the
drawbacks.

Disadvantages of the federal state system compared with the

unitary state

– Lack of uniformity
The federal states’ autonomy automatically leads to differences.
Diversity is the opposite of uniformity. This can cause difficulties,
for example, for school children if their family moves to another
federal state.
– Complicated
As there are many decision-making centres in the Federal 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

sent from other tiers of state, as well as engaging in lengthy nego-

tiations 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 run-
ning the corresponding institutions in a unitary state. It is debat-
able whether this assumption is correct, for it would be impossi-
ble to simply dispense with institutions in the federal states by
adopting a unitary state system. Various federal bodies would cer-
tainly have to grow accordingly and it is not clear that centralised
mammoth authorities would really be cheaper in the final analysis.

Federalism is not a relic from the days of the stagecoach but instead, A form of state
given its adaptability, a form of statehood very much in tune with our with a future
times. Nor is it a peculiarity of the German system. Looking at maps
of the world, we find a whole host of countries with a federal 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.

“Just as the Länder have made a decisive contribution to

Kurt Beck,
integrating the plurality of cultural and social traditions
President of
into the nation-state, the regions within a united Europe
the Bundesrat
will be essential participants in allowing diversity to merge
(2000/2001)
into political unity.”

9
The federal state system

Distinct roles and shared responsibilities

Division and The Basic Law ascribes particular roles to the Federation and the
intermeshing federal states in the spheres governed by the legislature, executive
and judiciary. Generally speaking, it is fair to say that the Federation
is responsible for legislation in most spheres, administration is in
essence handled by the federal states and responsibilities in the judi-
cial sphere are closely intermeshed, involving both the Federation
and the federal states. Nonetheless, the federal states also have sig-
nificant 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 posi-

tion, as it can establish uniform standards for all federal states and
the population at large through its overarching legislative compe-
tence.

However, the federal states – and this is an important compensato-

ry 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
 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 fed- The Bundesrat
eral states. Its role is to ensure that irreconcilable contradictions do forms a bond
not arise between the central state and the individual federal states
although responsibilities are divided between the various tiers of
state.

The Bundesrat’s role as mediator determines its constitutional status

and its composition:

The Bundesrat is a constitutional body of the federation, but it is

made up of representatives of the federal states. This in a sense
compensates the federal states for the fact that they have to a
large extent relinquished their independent legislative compe-
tence, and also grants them the right to have a say when the Fed-
eration devises administrative provisions. Through the Bundesrat
the federal states also have an opportunity to participate in mat-
ters 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 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

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

Organisation and working methods

The seat of the Bundesrat

The move from On 1st August 2000 the building at Leipziger Straße 3–4 formerly
Bonn to Berlin occupied by the Herrenhaus (House of Lords), the upper chamber of
the Prussian parliament, became the Bundesrat’s seat in Berlin. There
is also a branch office in the “federal city of Bonn”. Some committees
meet there regularly several times a year.

Before August 2000 the Bundesrat’s official seat had been in the 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.

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 gov-
ernment 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 mem-
bers of the cabinets in the federal states are however generally appoint-
ed as alternate members of the Bundesrat, which means that in prac-
tice 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 feder-
al states’ governments. There is no scope for the opposition in the var-
ious federal states to make its voice heard directly in the Bundesrat.

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 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 majori-
ty, which is generally necessary to adopt a decision, whilst 46 votes
are required for the two-thirds majority stipulated in certain instances.

The members
Only the Minister-Presidents and Ministers in the federal states, (or Only cabinet
Mayors and Senate members in the case of the city-states of Berlin, members from
Bremen and Hamburg) may be members of the Bundesrat. State the federal states
Secretaries who have a seat and a say in the cabinet of a federal
state are also entitled to be members of the Bundesrat. Membership
is based on a decision adopted by each federal state government; it
ends automatically if a member either leaves the Land government
or is recalled due to a decision taken by the Land government.

This means that all members of the Bundesrat have a twofold role to Dual function
play. They hold a position both at federal state and national level;
they are politicians in both the Land and at federal level. Members of
the Bundesrat take on comprehensive political responsibility as a
result. They cannot simply ignore how decisions they take within
their particular federal state will impinge on national policy, whilst in
their ministries in the federal states they experience first-hand the
consequences of policies they pursue at the national level.

Individual members are not free to simply vote as they see fit, for The mandate –
each federal state must vote en bloc in the Bundesrat. Being a mem- each federal state
ber of the Bundesrat does not therefore give members a “free man- votes en bloc
date” but nor does it imply an “imperative mandate”. Members of the
Bundesrat vote in accordance with a uniform line devised jointly by
the cabinet members in each individual federal state. They represent
their federal state.

17
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 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.

Dual membership of the Bundesrat and Bundestag is prohibited. The

two offices cannot be combined (incompatibility).

The President and the Presidium

Annual rotation All the federal states have equal rights when it comes to the most
among the senior position representing the Bundesrat: every year one Minister-
Minister-Presidents President is elected to this position. The order is determined as a
function of the population figures of the various federal states and
the cycle begins with the head of government in the most populous
federal state. The Minister-Presidents agreed upon this system in
1950 in Königstein/Taunus. One of the merits of this “Königstein
Agreement” is that each of the federal states assumes the presiden-
cy once every sixteen years, although the main advantage is certain-
ly that appointments to this position are not subject to shifting majori-
ties and party political considerations.

18
 Organisation and working methods

The President’s main duty is to convene and chair the Bundesrat’s

plenary sessions. In legal terms he or she represents the Federal
Republic of Germany in all Bundesrat matters. The Bundesrat
President is assisted by two Vice-Presidents, who advise the
President in the conduct of official duties and deputise if the Pres-
ident is absent.

The Bundesrat President is the highest administrative authority for

the Bundesrat’s officials. The Bundesrat Secretariat, with c. 185 staff
members, is primarily in charge of providing practical back-up for the
preparation and conduct of plenary and committee meetings. It acts
under the aegis of the Secretary General of the Bundesrat and
is divided up into: Committee Offices; the Office of the President,
Parliamentary Relations; Parliamentary Service; Press and Public
Relations, Visitor Service, Petitions and Submissions; Information
Technology; Documentation; Administration; Stenographic Service.

In addition, the Basic Law ascribes a further particularly responsible Powers of the
role to the President of the Bundesrat outside the sphere of the Bun- head of state
desrat:

“If the Federal President is unable to perform his/her duties, or if Article 57 BL

his/her office falls prematurely vacant, the President of the Bun-
desrat shall exercise his/her powers.”

This representative role is crucial, particularly if the Federal President

is on an official visit abroad or is taking leave. In such cases, the Bun-
desrat President is responsible, for example, for signing bills, formal-
ly receiving diplomatic credentials from foreign ambassadors, as well
as for appointing and dismissing civil servants.

In protocol terms the Bundesrat President is often considered to rank

as “No. 2” after the Federal President because of this representa-
tional role. However, there is no binding definition of protocol rank-

19
Organisation and working methods

ings in the Federal Republic of Germany. For that reason there is no

definitive answer to the question of which of the supreme represen-
tatives of the constitutional bodies (Bundesrat, German Bundestag,
Federal Government and Federal Constitutional Court) ranks second
after the Federal President, who is undisputedly the highest ranking
representative of the state in protocol terms.

The Bundesrat’s The Presidium of the Bundesrat, i.e. the President and the two 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.

Permanent The Presidium is assisted by a Permanent Advisory Council, which is

Advisory Council composed of the sixteen plenipotentiaries of the federal states to the
Federation. Like the Council of Elders in other parliaments, this body
advises the President and Presidium. However, it also plays a key
role in the realm of information and coordination. After cabinet meet-
ings on Wednesdays, a member of the Federal Government regular-
ly provides information to the Permanent Advisory Council about the
deliberations and decisions of the Federal Government.

Offices of Each of the German federal states has a representative office in

the federal states Berlin to ensure that federal state interests are taking into account by
the Bundesrat, Bundestag, Federal Government and other bodies
based in the capital. Each of these offices is headed by the respec-
tive “plenipotentiary of the federal state to the Federation”. These
plenipotentiaries are generally also members of the Bundesrat if they
are members of the government in their federal state.

Voting
Each federal state As stipulated in the Basic Law, each federal state must cast its votes
casts its votes en bloc en bloc, voting either for or against a motion or abstaining. Each indi-
vidual state government must therefore reach an agreement as to
how votes should be cast before voting takes place in the Bundesrat.

20
 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.

Votes In the Bundesrat voting is generally by a show of hands. Because of

the large number of votes to be taken in each session, the Bundesrat
-President generally asks only for a vote in favour of a motion and
thus determines if there is a majority or a minority for a motion. In
other words, separate voting rounds are not held to count votes
against a motion and abstentions, for the distinction between these
two voting options is not relevant in establishing whether there is an
absolute majority. A “roll-call vote of the federal states” is taken when
a vote is held on amendments to the constitution or on other partic-
ular important decisions. The federal states then vote in alphabetical
order by acclamation. In such cases the votes cast are recorded in
the minutes of the meeting. Secret votes are not envisaged in the
Bundesrat’s rules of procedure.

Dieter Althaus, “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.

The generally comprehensive programme of issues to be Brisk approach

addressed in the meeting – 40, 50, sometimes even over 80 points to the agenda
on the agenda – is tackled briskly and efficiently. The meeting usu-
ally focuses on one or two issues, which are addressed in detail.
Speakers on the other agenda points simply submit declarations
explaining and substantiating their government’s decisions. Often
these are written declarations, which are not presented orally in the
plenary, but are instead simply noted in the minutes and can be
consulted subsequently in the session report. Whenever possible,
votes on several issues are taken together to save time and ensure
that endless individual votes are not required. Usually the President
can adjourn the meeting after three to four hours.

23
Organisation and working methods

Impartial The Bundesrat is sometimes referred to as the “House of Lords”,

the “Upper Chamber” or as a “well-tempered parliament in which
everything is smaller, quieter, more refined”. One could debate
whether such descriptions are always accurate; however it is cer-
tainly true that efforts to drum up votes or set a particular mood are
generally to little or no avail due to the special features of the Bun-
desrat’s decision-making procedures. Impartiality is therefore one
of the prime concerns in the Bundesrat. The rules of procedure
take it for granted that members will be cooperative and show con-
sideration in procedural manners, and dispense entirely with pro-
visions on many aspects usually governed by detailed rules in other
parliaments. Guidance is provided in these cases by the “custom-
ary practice of the assembly”. The idea is to reach agreements in
dealing with official business instead of adopting a confrontational
approach, as even without specific rules no decision can be
attained by “fighting matters out in a vote”.

Careful 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.

The Chamber of European Affairs

Decisions that are to have an external legal effect must be adopt-
ed by the Bundesrat plenary session. There is one exception to this
general rule: Article 52 (3a) of the Basic Law states that the Bun-
desrat may create a Chamber of European Affairs for matters con-
cerning the European Union; this chamber’s decisions have the
same effect as decisions of the Bundesrat itself. The Chamber
deals with urgent and confidential matters pertaining to the Euro-
pean Union, particularly draft legislation. However, so far the Cham-
ber of European Affairs has held very few meetings.

24
 Organisation and working methods

It is only convened at the express request of the President of the

Bundesrat. The purpose of this arrangement is to avoid having to
arrange special sessions of the Bundesrat. Meetings of the Cham-
ber of European Affairs are public, although it may meet in camera
if confidential issues are to be addressed. Each federal state
appoints one member of its government to the Chamber, but has
the same number of votes in this body as in the plenary. The Cham-
ber is thus a kind of miniature Bundesrat to deal with particular cir-
cumstances. It may also adopt decisions without holding a meet-
ing, using an alternative written procedure instead.

The committees
The work done in the committees lies right at the heart of parlia- Pooled
mentary activity. Every piece of legislation, whether it is initiated by expertise
the Federal Government, the Bundestag or a federal state, is first
examined in the committees. Ministers from the federal state 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

Committee on Committee on Agricultural Committee on Labour

Foreign Affairs Defence Committee and Social Policy

Committee on European Committee on Family and Committee on Women

Union Questions Senior Citizen Affairs
Finance Committee and Youth

Committee on Committee on Committee on Urban

Committee on Health Development, Housing
Internal Affairs Cultural Affairs and Regional Planning

Committee on Committee on the Envi- Committee on

ronment, Nature Protec- Committee on Transport
Legal Affairs tion and Reactor Safety Economic Affairs
Organisation and working methods

In contrast, the ministers in charge of the relevant ministries attend

meetings of the expert committees, such as the Committee on Eco-
nomic Affairs or the Finance Committee. All Committee members
may be replaced by “representatives”, i.e. experts from the min-
istries. This facility is used especially frequently in the expert com-
mittees. Some committees almost always meet as civil servant
groups. The “representatives” may rotate during the meeting, so
that the appropriate experts from the federal states are involved for
each specific point on the agenda. In the Committee on the Envi-
ronment, Nature Protection and Reactor Safety, for example parti-
cipants might include experts specialised in soil protection, water
resources management, protection against dangerous substances,
safety in nuclear facilities, waste disposal or emissions abatement.

Practical The focus in these committees, which are of course not apolitical,
precision work is not so much on spectacular matters but instead on practical pre-
cision work. The very last details of draft legislation are discussed
there; this is where the federal states can help to shape and
improve national and European legislation, whilst also exercising
scrutiny of such legislation. The good reputation that the Bundesrat
committees enjoy is rooted in the rock-solid expert knowledge
assembled in the committees, coupled with the experience about
enforcement gleaned by the executive in each federal state, as
these executive bodies are both close to the citizens and close to
the actual impact of implementation.

Civil servants 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

The Mediation Committee

Legislation is developed in a cooperative process involving both the A bridge between
Bundestag and the Bundesrat. Approximately half of all bills – con- the Bundestag
sent bills – can only enter into force if both assemblies agree. The and the Bundesrat
role of the Mediation Committee is to reach a consensus if there are
differences of opinion concerning these bills, or relating to objection
bills.

This is a joint committee in which the Bundestag and the Bundes- Joint Bundestag
rat are equally represented. Each federal state has one seat, and the and Bundesrat
remaining committee members making up the other half of the group committee
come from the Bundestag, which allocates its seats as a function of
the size of the various parliamentary groups. As there are 16 federal
states the committee has 32 members. A named alternate is 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.

Mediation Committee decisions are taken on a majority basis. All

members do not by any manner of means have to support a partic-
ular “consensus proposal” – the term used to describe all the Com-
mittee’s decisions. In accordance with procedural rules, the medi-
ation process can lead to four different outcomes:

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.

A bill passed by the Bundestag may be confirmed. In this case

draft amendments submitted by the Bundesrat are rejected.

The proposal may be made that the Bundestag repeal the bill in
question. This happens when the Bundesrat rejects a bill in its
entirety and succeeds in having this position accepted by the
Mediation Committee.

Mediation Committee proceedings may be concluded without a

compromise proposal being submitted. For example, this occurs
when it is not possible to reach a majority decision in the Com-
mittee as there are an equal number of votes in favour of and
against a proposal.

Not a The Mediation Committee may only make proposals to resolve con-
“super-parliament” flicts between the Bundesrat and Bundestag, but cannot adopt bills
itself. It is not a “super-parliament”.

28
 Organisation and working methods

The Bundesrat’s working methods

There are days when everything is quiet in the Bundesrat. Whilst Many centres of
there is a constant flurry of people coming and going in the Bun- activity yet still speedy
destag, the Bundesrat seems to be having a break. But appear-
ances can be misleading. Two factors characterise the Bundesrat’s
working methods and make it different from other legislative bodies:
the twofold functions of its members and the deadlines set for the
most important decisions. As a consequence, the Bundesrat’s work
is carried out under permanent time pressure, and is mainly done
in the capitals of the federal states and not at its seat in Berlin.

In the plenary hall of the

Bundesrat the members are
seated in alphabetical order
in 16 “Länderblocks” with
six seats each. There are no
party political groups. The
Secretary and the Secre-
tary General of the Bun-
desrat sit next to the Bun-
desrat President to assist
him/her in chairing the
meetings and counting the
votes.

The members and repre-

sentatives of the Federal
Government sit to their
right and left. Other Bun-
desrat staff also sit on the
left-hand side. There are
three blocks of seats from
which guests of honour, vis-
itors and journalists can fol-
low the proceedings.
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

The Bundesrat – a federal body

The roles played by the Bundesrat

1. Submitting opinions on draft government bills

2. Convening the Mediation Committee

3. Taking decisions on consent bills

4. Participating in addressing objection bills

5. Bundesrat draft bills

6. Statutory instruments

7. Consent to general administrative regulations

8. European Union draft legislation

9. Involvement in dealing with foreign affairs

10. Right to be informed by the

Federal Government

11. Further roles

The roles played by the Bundesrat

The Bundesrat – a federal body

The Bundesrat is a federal body that shares responsibility for overall
federal policy. It is not a “chamber of the federal states” (i.e. a body
at the federal state level of the system), even though this expression
has crept into common parlance. The Bundesrat’s role as a federal
body extends exclusively to exercising federal powers and assuming
federal responsibilities.

Not a “chamber of The Bundesrat is not responsible for dealing with the functions to be
the federal states” carried out by the federal states. That means it is also not a coordi-
nating body to address problems and concerns that may perhaps be
dealt with in a harmonised or coordinated manner by all the federal
states. For example, the federal states are responsible for setting the
dates for school holidays. It makes sense for the federal states to take
a coordinated approach on this question to ensure school holiday 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.

The roles played by the Bundesrat

More than a simply The Bundesrat’s areas of involvement relate to legislation and admin-
advisory role istration, as well as to policy on the European Union; in other words
the whole sphere of state activity by the federal level in crafting poli-
cy. The Basic Law refers in Article 50 to “participation”, but uses this
term in a sense much broader than simply a supportive, advisory role
of assistance. The participation may involve simply advising the Bun-

34
 The roles played by the Bundesrat

destag or the Federal Government, but it may also involve playing a

much more active role in actually shaping policy and can even signi-
fy that the Bundesrat is empowered to take decisions on its own –
depending on the details of the individual provisions in the constitu-
tion governing this participation.

1. Submitting opinions on draft

government bills
In the Federal Republic of Germany most bills are initiated in the form The Bundesrat has
of draft bills from the Federal Government. The Bundesrat has the the “first say” on draft
“first say” in the parliamentary processing of executive bills. The government bills
Basic Law stipulates that the Federal Government shall first submit
its draft bills to the Bundesrat (the draft budget is the only example
of legislation that must be submitted to both the Bundesrat and the
Bundestag at the same time). The Bundesrat is entitled to submit an
opinion on this draft legislation within a six-week deadline (although
in certain cases a deadline of three or nine weeks applies). The Bun-
desrat makes use of this right in virtually all cases. Review and dis-
cussion of legislative proposals submitted by the government are
two of the Bundesrat’s primary roles. The experience and insights
gleaned by the federal states in the implementation of laws, almost
all of which are enforced by them, are incorporated into federal leg-
islation in this first reading. In this context the executive bodies in the
federal states conduct an intensive dialogue with the federal execu-
tive. The Bundesrat’s checks-and-balances role in the federal system
of government is manifested particularly clearly in this setting.

The Bundesrat examines the draft bills in its committees, taking all
relevant aspects into account: constitutional, technical, financial and
political. It often proposes amendments, additions or alternative 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.

At this stage in the legislative procedure, the Bundesrat’s assess-

ment of a bill is not binding on the Federal Government and the Bun-
destag. However, this initial assessment is an important indicator of

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.

2. Convening the Mediation Committee

The President of the Bundestag must submit all legislative decisions
adopted by the Bundestag to the Bundesrat. In this second reading,
the issue is discussed first of all in the committees, which in particu-
larly assess whether the Bundesrat’s opinion in the first reading has
been taken into account and whether or not the Bundestag has intro-
duced other amendments. If the Bundestag’s decision on the legis-
lation is based on a draft bill initiated by the Bundestag only this
“second reading” occurs, even though in that case the term is actu-
ally a misnomer.

If the Bundesrat is not in agreement with the version of a bill passed

by the Bundestag, it may refer the matter to the Mediation Commit-
tee within a period of three weeks. The Bundesrat’s submission to
the Mediation Committee, which must be adopted by the plenary
session with an absolute majority, includes specific proposals for
amendments along with detailed substantiation of these proposals.

3. Taking decisions on consent bills

Bills that have a special bearing on the interests of the federal states
cannot become law unless the Bundesrat gives its express approval.
Legislation in this category cannot be passed if the Bundesrat votes
definitively against a bill. This rejection of a bill cannot be overturned
by the Bundestag. In that case, the only remaining recourse for the

36
 The roles played by the Bundesrat

Bundestag and the Federal Government is to refer the matter to the

Mediation Committee in an attempt to reach a consensus. That
means that the Bundestag and the Bundesrat must agree on con-
sent bills if legislation is to be adopted.

The provisions of the Basic Law indicate which bills require Bun-
desrat approval. They can be classified in three groups:

Bills amending the constitution. These require Bundesrat consent

in the form of a two-thirds majority vote in favour of adoption.

Bills that have a particular impact on the finances of the federal

states. On the revenue side these primarily include all bills relating
to taxes for which all or part of the revenue accrues to the federal
states or local authorities: for example income tax, value-added
tax, trade and motor vehicle tax. On the expenditure side this cat-
egory comprises all federal bills that oblige the federal states to
make cash payments, provide benefits equivalent to cash pay-
ments or provide comparable services to third parties.

Bills that impinge on the organisational and administrative juris-

diction of the federal states.

In terms of the number of bills that fall into this category, the last
group of bills mentioned above is particularly significant; that is
because the whole bill requires the consent of the Bundesrat if a bill
contains even one binding provision of this type. This holds, for 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

Taking decisions on consent bills

Federal government Bundesrat Bundestag

Draft bill

Opinion

Counter-statement

Decision by Bundestag
Bill passed Bill rejected

Bill fails
Decision by Bundesrat
Adoption Referral to MC Rejection

Bill fails unless the federal government or the Bundestag

refer the matter to the Mediation Committee

Mediation Committee (MC)

No amendments proposed Amendments proposed

Adoption of the amended bill

Decision by the Bundesrat

Adoption Rejection

Bill fails unless the federal government or the Bundestag

refer the matter to the Mediation Committee

Counter-signature

Federal President: 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).

Bills initiated by the Bundesrat are submitted to the Bundestag together

with an opinion from the federal government. Bills introduced by the
Bundestag (by political groups or one or more Bundestag members)
are submitted to the Bundestag directly. The procedure in the Bundestag
(and after deliberations there) is identical to the procedure for bills
initiated by the federal government.
 The roles played by the Bundesrat

Participating in addressing objection bills

Federal government Bundesrat Bundestag

Draft bill

Opinion

Counter-statement

Decision by Bundestag
Bill passed Bill rejected

Bill fails
Decision by Bundesrat
Approval Referral to MC

Mediation Committee (MC)

No amendments proposed Amendments proposed

Adoption of amended bill

Decision by Bundesrat
Agreement Objection with Objection with
absolute majority 2/3 majority

Decision by Bundestag Decision by Bundestag

Objection overridden Objection not Objection overridden Objection not
with absolute majority overridden with 2/3 majority overridden

Bill fails Bill fails

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.

4. Participating in addressing objection bills

The Bundesrat is also involved in the genesis of bills that do not
require its consent. These are described as objection bills. Here
however it can only strenuously urge the Bundestag to adopt a par-
ticular approach. If the Bundesrat submits an objection within two
weeks of the conclusion of mediation proceedings, the Bundestag
has to submit the bill to another reading. If the Bundestag does not
share the Bundesrat’s reservations, it can override the objection
with an absolute majority of its own (described as the “chancellor
majority”). If the Bundesrat’s objection was based on a two-thirds
majority, a corresponding two-thirds majority of votes cast in the
Bundestag is required to override it (this majority must also repre-
sent a majority of the Bundestag’s members). If the objection is
overridden, the bill in question may be enacted. However, if there
is not a sufficient majority in the Bundestag to reject the objection,
the bill cannot become law, as is the case if the Bundesrat does not
approve a consent bill.

5. Bundesrat draft bills

The Bundesrat is entitled to submit its own draft bills to the Bun-
destag. The draft bills are submitted to the Federal Government to
allow it to table its comments. Within six weeks (or in certain cases,
within three or nine weeks), the bills are then passed on to the Bun-
destag.

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

initiatives from the Bundestag. The Bundestag is free to decide as

it sees fit, and may thus also refuse to adopt a bill. It is not possible
to refer the matter to the Mediation Committee with a view to over-
coming the Bundestag’s rejection of such bills. This aspect of pro-
cedure is unfavourable for the Bundesrat, which may explain why it
initiates relatively few bills. However, the Bundesrat has been suc-
cessful in having measures adopted to improve legal, customer and
consumer protection. The following provisions are based on legis-
lation initiated by the Bundesrat: the right of revocation for hire-pur-
chase transactions, prohibition on agreements concerning the
place of jurisdiction, the obligation to comply with formal criteria in
purchases of real estate (to protect purchasers) and more rigorous
state oversight of old people’s homes. The Bundesrat also set the
ball rolling on combating abuse of asylum law and fighting organ-
ised crime, as well as introducing proposals on providing cover for
long-term care needs.

The Bundesrat also uses the parliamentary instrument of resolu-

tions as a political complement to its right to initiate legislation.
These are requests, generally addressed to the Federal Govern-
ment, that aim to draw attention to problems that have not yet been
adequately addressed in legislation.

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.

Statutory instruments are binding provisions on the implementation

of bills. Bundesrat consent is stipulated for most statutory instru-
ments from the Federal Government and individual federal minis-
ters. A considerable part of the Bundesrat’s workload involves
examining such legislation, a process that only rarely involves the
Bundestag. Most of the work in this field is done in the committees.

These provisions, which are generally less politically significant, do

not take up much time in the public plenary sessions. The right of

42
 The roles played by the Bundesrat

consent signifies that the Bundesrat is entitled to determine the

content of statutory instruments on an equal footing with the other
bodies involved. In practice, consent is often granted “subject to”
certain amendments. It is not possible to refer the matter to the
Mediation Committee.

Since the amendments to the constitution in 1994, the Bundesrat

has enjoyed a formal right of motion for statutory instruments. It may
submit drafts of statutory instruments that require Bundesrat con-
sent to the Federal Government.

As becomes clear in the following list of examples, these statutory

instruments address a broad range of policy areas: Road Traffic
Regulations, Federal Ordinance on Species Protection, Ordinance
on Hospital Care Charges, Ordinance on Utilization of Land for
Construction, Ordinance on Work in Pressurised Environments,
Ordinance on Dangerous Substances, Ordinance on Hazardous
Incidents, Ordinance on Minimum Hygiene Standards for Poultry-
meat and Ordinance on Quantitative Analysis Methods for Binary
Textile Fibre Mixtures.

7. Consent to general administrative

regulations
Just like statutory instruments, numerous general administrative reg-
ulations also depend on Bundesrat consent, if these provisions
addressed to the administrative authorities affect the powers and
responsibilities of the federal states. For example, the “Schedule of
Exemplary Fines” for regulatory traffic offences and the “Points
Schedule” for forfeiture of a driving licence were both enacted with
the consent of the Bundesrat.

43
The roles played by the Bundesrat

8. European Union draft legislation

With the growing integration of the European Union, national law is
increasingly being influenced by legislation adopted in Brussels.
The decision-making body is the Council of Ministers, in which each
Member State is represented by a member of the government. Pur-
suant to Article 23 (2) of the Basic Law, the Bundestag and,
through the Bundesrat, the federal states participate in the process
whereby the Federation reaches a position concerning specific
European Union matters. The Federal Government is therefore
charged with providing the Bundestag and the Bundesrat with
comprehensive information on all European Union affairs as rapidly
as possible.

After extensive consultations in the committees, the Bundesrat – in

urgent cases the Chamber of European Affairs – gives its opinions
on the European Union draft regulations and directives submitted
to it. If this European Union legislation affects matters which fall
within the jurisdiction of the Federation at the national level, the Fed-
eral Government must give “due consideration” to the Bundesrat’s
opinion in its decisions in Brussels. If such legislation primarily
affects the legislative jurisdiction of the federal states, the structure
of Länder authorities or their administrative procedures, then the
Bundesrat’s assessment must be taken into account as the “deci-
sive opinion”. In other words, in such cases the Bundesrat really has
the final say in determining the German position in the Council of
Ministers. In this context however, the Bundesrat also has a duty to
“comply with federal responsibility for the nation as a whole”. This
phrase refers to jurisdiction in the key policy areas of integration,
foreign affairs and security. If the Bundesrat’s opinion conflicts with
that of the Federal Government, and if an agreement cannot be
reached, the Bundesrat’s opinion is the decisive factor, providing
that it is based on a decision approved by a two-thirds majority. The
Bundesrat’s right to have the last word is restricted in matters that
could cause an increase in expenditure by the Federation or could
lead to a drop in federal revenue. In such cases the Federal Gov-
ernment must approve the German position as determined by the
Bundesrat. In cases in which EU legislation mainly affects the exclu-
sive legislative competences of the federal states in the realm of the

44
 The roles played by the Bundesrat

school system, culture or radio and television broadcasting, the

German delegation is headed by a minister from one of the federal
states, appointed by the Bundesrat, who is in charge of conducting
the negotiations and is entitled to vote.

9. Participation in foreign affairs

Article 32 (1) of the Basic Law provides that the Federation shall be
responsible for maintaining international relations with other coun-
tries. This provision does not assign this responsibility to any par-
ticular constitutional body and thus excludes neither the Bundesrat
nor the Bundestag from involvement as federal bodies. Neverthe-
less, as conveyed in the Basic Law, foreign affairs is a key policy
area in which the Federal Government is active, enjoying powers to
take far-reaching and indeed perhaps even existential decisions
independently of the legislative bodies. However, international
treaties regulating the federation’s relations with other nations or
relating to matters of federal legislation do require the “consent or
participation of the appropriate legislative bodies in the form of a
federal bill”, as stipulated in Article 59 (2) of the Basic Law.

In terms of the Bundesrat’s rights, this means that a treaty law Consent to
(referred to as a “ratification law”) requires Bundesrat consent if the ratification bills
adoption of a domestic law with similar content would require the
consent of the Bundesrat pursuant to the Basic Law. By using its
right of veto, i.e. refusing to approve a law, the Bundesrat can 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.

10. Right to be informed by the

Federal Government
Pursuant to Article 53, third sentence of the Basic Law, the Bun-
desrat shall be “kept informed by the Federal Government with
regard to the conduct of its affairs”. This obligation to provide infor-
mation relates to all government business, and is therefore not
restricted to legislative and administrative activities, but also
includes for example information about the general political situa-
tion, foreign and defence policy. The Federal Government must pro-
vide comprehensive and timely information on an ongoing basis at
its own initiative. Furthermore the Bundesrat is entitled to “sum-
mon” any member of the Federal Government to its plenary and
committee meetings and put questions to them. Conversely, mem-
bers of the Federal Government are entitled to attend all meetings
of the Bundesrat and its committees, as well as to speak there at
any point. However, the Bundesrat rarely utilises its formal right to
put questions in the plenary sessions. The second chamber does
not have a specific “Question Time” nor does it use the system of
written questions, which are both standard practice in the Bun-
destag.

46
 The roles played by the Bundesrat

11. Other roles

The Basic Law assigns numerous other tasks and competences to
the Bundesrat. For example, the Bundestag and Bundesrat each
elect half of the members of the Federal Constitutional Court. The
Bundesrat can also lodge complaints of unconstitutionality and can
testify in cases before the Federal Constitutional Court. The Bun-
desrat appoints representatives to the Federal Employment
Agency’s Management Board, as well as to other public bodies. It is
entitled to make proposals or has a right of consent in respect of
appointments to various other positions. Bundesrat consent is
required for proposals to the Federal President on appointments to
the position of Chief Federal Prosecutor, for attorneys in the Feder-
al Supreme Court and for Deutsche Bundesbank Board Members.

The Federal Minister of Finance must account annually to the Bun-

destag and the Bundesrat for revenue and expenditure to enable
discharge of the Federal Government.

Should the Federal Chancellor no longer enjoy the confidence of the Legislative
Bundestag, without the Bundestag being dissolved, a complex pro- emergency
cedure allows the Federal Government to adopt bills with the 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.

Monitoring and oversight roles are also ascribed to the Bundesrat in

the provisions set out in the Basic Law concerning federal oversight
of the activities of the federal states, domestic emergencies and nat-
ural catastrophes. Bundesrat consent is also required if the Bun-
destag determines that a state of emergency pertains because the
country is under attack; this is known as the state of defence. In
such cases the particular provisions for the state of defence laid out
in Articles 115a to 115k of the constitution may be applied.

47
The Basic Law stipulates that the Bundesrat is a constitutional
body, just like the Bundestag, the Federal Government, the 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

Taking decisions as a federal constitutional body

Taking decisions as a political constitutional body

Counterweight involved in monitoring

the Federal Government

Counterweight involved in rectifying

Bundestag decisions

Link between the Federation and the federal states

Building on a sound tradition – forerunners

of the Bundesrat

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.

United Kingdom The Netherlands

Two legislative
assemblies
Parliament States-General

House House First Second

of Lords of Commons Chamber Chamber

Switzerland USA

Federal Assembly Congress

Council National Senate House of

of States Council Representatives

On occasion critics seek to use the stance of the Federal Consti-

tutional Court to demonstrate that the Bundesrat does not qualify
for chamber status. These critics insist that the Karlsruhe court has
ruled explicitly that the Bundesrat is not a second chamber. The
Federal Constitutional Court did indeed state in a ruling in 1974:

50
 Die Aufgaben
The status
des
ofBundesstaates
the Bundesrat

“Pursuant to the provisions of the Basic Law, the Bundesrat is not

a second chamber of a unified legislative body that participates on
an equal footing with the “first chamber” in legislative procedure”.

The Federal Constitutional Court therefore does not simply unre- “A unique body”
servedly deny that the Bundesrat is a second chamber, and in its
ruling also referred to an academic treatment of the topic, which
highlights the “arbitrary nature” of the terminology selected. It is
indeed a semantic battle, fought sometimes with great passion.
However, in terms of the constitutional status of the Bundesrat, it
is immaterial, for the roles and powers of the Bundesrat do not stem
from the terms used to describe it, but instead from the various 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.

In this system of division of powers and shared responsibilities, the

Bundesrat has three central roles:

It defends the interests of the federal states vis-à-vis the Feder-

ation and indirectly vis-à-vis the European Union.

It ensures that the political and administrative experience of the

federal states is incorporated into the Federation’s legislation
and administration, as well as into European Union affairs.

Like the other constitutional bodies of the Federation, it shares

overall responsibility for the Federal Republic of Germany.

Counterweight The Bundesrat has a dual role to play in exercising these roles: on
and link the one hand, it acts as a federal counterweight to the Bundestag
and the Federal Government; on the other hand however it also
constitutes a link between the Federation and the federal states.
The Bundesrat represents the constituent states at the federal level,
whilst at the same time reminding these constituent states of their
duties on behalf of the alliance that makes up the state as a whole.

52
 The status of the Bundesrat

Taking decisions as a federal

constitutional body
In every state based on a federal system there is a natural tension
between the state as a whole and the constituent states. The Fed-
eration and the federal states seek to maintain and if possible
strengthen their position, to fully exercise and perhaps also extend
their rights. In this context the Bundestag and the Federal Govern-
ment are the “central authorities”, to which the Basic Law has allo-
cated the counterweight of the Bundesrat as a federative body at
the federal level. The main role of the Bundesrat is to preserve the
“interests of the Länder” at the federal level, whilst at the same time
ensuring that these are in tune with the concerns of the Federation
as a whole.

The “interests of the federal states” in this sense are clearly 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.

Determination of the administrative procedures that authorities in

the federal states must apply in enforcing federal bills.

Are such organisational, fiscal and administrative concerns really What are the
the whole story when it comes to the interests of the federal states? interests of the
Is it not much more the case that the governments of the Länder federal states?
may and indeed must also assert the interests of the people living
in their particular federal state when representing the “interests of
the federal states”? How can one differentiate between the “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.

Taking decisions as a political

constitutional body
Party politics in The Bundesrat is a political organ, for it is made up of politicians and
the Bundesrat? has a political remit. This puts it in a natural state of competition with
the Bundestag and the Federal Government. These two constitu-
tional bodies are however not just political fora, but also express the
party political balance of power. However, in its capacity as a feder-
ative body at the federal level, the Bundesrat primarily represents the
federal states and not political parties, triggering the question as to
whether and to what extent there is scope for party politics in the
Bundesrat. Can the Bundesrat be a party political counterweight,
should it take on this role and is it authorised to do so?

When the groundwork was being done prior to adoption of the

Basic Law, efforts were made to ascribe to the Bundesrat the role
of a “counterbalance to party politics”, which would be guided by
“greater objectivity” and the “desire for absolute impartiality”. The
Parliamentary Council criticised such derogatory appraisals of party
politics. In this view of the Bundesrat (in those days also referred to

54
 The status of the Bundesrat

as the “Council of the Federal States”), the Bundestag would seem

to be “the font of all the evils of the party system and the Council of
the Federal States to be wisdom and goodness incarnate”, to cite
criticism from Hermann Brill, a Social Democrat from Hesse.

Contrasting the notions of “impartial politics” and “party politics”

would indeed call the reputation of the political parties into question,
for it would suggest that party politics are to be equated with biased
politics.

The constitution provides that the political parties have a mandate to Parties must
participate in political decision-making. Within the system defined by use their
the constitution, they are actually the real “pillars of policy”; we live critical judgement
in a multi-party democracy. As a result it now goes without saying
that Bundesrat decisions, which are after all political decisions, may
be coloured by party political concerns. “We are the fathers of our
federal states and the sons of our parties at one and the same time”,
Heinz Kühn, Minister-President of North Rhine-Westphalia, noted in
1971 when speaking to the Bundesrat, with “a need to preserve the
ability to enter into compromises, yet without compromising our-
selves or our ideas.”

In political discourse the issue of how much influence the parties

should have in the political decision-making process remains con-
troversial, as does the question of where the border line should be
drawn between a “political Bundesrat” and “party political abuse of
the Bundesrat”. There are no rigid legal criteria for determining pre-
cisely where this demarcation line lies. Instead it is up to the politi-
cal parties to use their own critical judgement – bearing in mind the
constitutionally defined role of the Bundesrat – and to contribute to
ensuring the Bundesrat is an independent political force as a con-
stitutional body.

“I am profoundly convinced that the Bundesrat’s fact-based Peter Harry

approach can serve as a role model for political action at other Carstensen,
levels. Here the well-being of the state ranks above self-inter- President of
est, here party political interests are not the yardstick for the Bundesrat
actions and decisions, here the focus is on the interests of (2005/06)
the federal states and the well-being of their citizens.”

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.

Counterweight involved in monitoring

the Federal Government
In keeping with our constitution, the Bundestag elects the Federal
Chancellor; he or she must have the trust of the Bundestag, which
enables both the Chancellor and the government to conduct their
business properly. The Bundesrat has no influence in the process
of appointing or dismissing members of the government. Nonethe-
less the Bundesrat, along with the Bundestag, plays a vital role in
monitoring the Federal Government’s activities.

This monitoring primarily takes the form of involvement in the leg-

islative process. Whilst the principle of division of powers means
that the government cannot simply promulgate bills, it does howev-
er initiate most legislation and draws up the detailed implementing
provisions in the federal ministries. As all government bills must first
be forwarded to the Bundesrat for its comments, it can carry out
thorough scrutiny of draft legislation at this juncture – even before
deliberations in the Bundestag. The structure of the Bundesrat,
which as we have seen is composed of members of the govern-

56
 The status of the Bundesrat

ments of the federal states, plus the option of appointing experi-

enced civil servants from the federal states as “representatives” to
participate directly in committee meetings, have proven to be very
effective factors in this scrutiny process. This system means that
the federal ministries deal with a highly qualified counterweight at
the technical level too; the representatives from the federal states
know their policy areas inside out and can thus take a very careful,
detailed look at all spheres of domestic policy – even though the
state is active in so many different areas and the subject-matter
addressed tends to be highly complex.

These comments also hold true for European Union affairs, which European
can no longer be slotted into the category of classical foreign poli- domestic policy
cy, but as a result of increasing European integration might well be
described as European domestic policy. As to date the structure of
the EU has granted the governments of Member States the right to
decide on European lawmaking and politics, monitoring the 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.

The Bundesrat also takes on a comprehensive monitoring role in the

sphere of the actual executive activity of the Federal Government,

Monitoring and
Basic Law § taking corrective
action – relations
between the
constitutional bodies

Bundestag
Bundesrat

Federal government

57
The status of the Bundesrat

namely issuing statutory instruments and general administrative reg-

ulations, as the majority of these provisions can only be adopted with
Bundesrat consent. As the Bundestag is only very rarely consulted
on these matters, government activity here is subject to scrutiny
exclusively by the Bundesrat, representing the federal states.

A difficult Generally speaking, it is fair to say that the Bundesrat constitutes a

counterpart more difficult political counterpart for the Federal Government than
the Bundestag does, for within the parliamentary system the majori-
ty in the Bundestag determines which party or parties are in govern-
ment and thus supports the government. In contrast, in the Bun-
desrat it is entirely possible that different parties form a majority, and
indeed that different viewpoints may influence decisions:

The party political mix in the Bundesrat and Bundestag may 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.

The members of the Bundesrat, particularly the Minister-Presidents

as “princes in the federal states” may retain a particular degree of
independence stemming from their personalities and the trust
expressed by their electorate. That means they may well pursue
policies that are not determined by party political considerations.

Decisions taken by the Bundesrat are informed by political and

administrative experience gleaned on the spot.

The Federal Government must also pay attention to the need to

ensure respect for the “interests of the federal states”, the Bun-
desrat’s principal role.

58
 The status of the Bundesrat

Counterweight involved in rectifying

Bundestag decisions
The Basic Law provides that two legislative bodies shall be respon-
sible for federal legislation. The Bundestag and the Bundesrat are
however not accorded an entirely equal status. The degree of Bun-
desrat “participation” varies depending on the type of legislation.

In the case of consent bills, the Bundesrat’s corrective role is imme-

diately apparent, but it also plays a part, albeit to a lesser extent,
when it comes to objection bills. The Bundesrat may introduce new
or additional arguments and decisions into legislation; if need be, it
may also prevent the passage of specific bills. However it is not the
option of saying “no” and generating conflict that takes centre-stage;
the focus is on the possibility of concurring through a “yes” vote and
reaching a compromise.

The Bundesrat certainly does not simply rubber-stamp decisions, but

nor would it be fair to reproach it with being awkward and tending to
say “no”. There are always differences of opinion and also tough dis-
putes, but the main focus is on striving to reach sound, fact-based
solutions to the problems considered. Such efforts are part-and-par-
cel of politics in a democracy; indeed, far from undermining the
importance of the Bundesrat’s corrective role, these efforts are the
hallmark of that role:

Bundesrat participation in legislation is a manifestation of power- Participation

sharing and the checks-and-balances built into the federal system.
In its capacity as the representative of the federal states, the Bun-
desrat is responsible for ensuring the interests of the whole feder-
ation are respected. Drawing on the federal states’ administrative
experience in enforcing legislation, the Bundesrat can furthermore
play a key role in ensuring top-quality, practicable federal bills.

Participation obliges the Bundestag and the Bundesrat to weigh

up the pros and cons of measures and strike the right balance, as
well as compelling them to exercise restraint and moderation. It is
certainly positive if this helps to avoid excesses in the substance
of decisions – but it is disadvantageous if compromises are based
on the lowest common denominator, blurring all political contours
beyond recognition.

59
The status of the Bundesrat

Participation enables broad majorities, right down to the level of

the federal states and thus contributes to good relations within
the country.

Participation signifies continuity and stability, if the right balance

can be struck and a broad majority attained, for then the results
of elections do not lead to a radical change of course even in an
age when there is almost a balance between the political camps.

Sharing in Much of the Bundesrat’s political significance derives from the 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

Link between the Federation and the federal states

The Bundesrat is not just a counterweight to the Bundestag and the
Federal Government, but at the same time also constitutes a link
between the Federation and the federal states. It represents both the
state as a whole (the Federation) as well as the constituent member
states (the 16 Länder).

The Bundesrat is on the one hand the federative constitutional body in

the Federation through which the Länder, as constituent states, can
participate directly in formulating the Federation’s political objectives
and thus contribute to crafting policy for the entire country. On the
other hand, through the Bundesrat the Federation can drawn on the
political and administrative experience of the federal states and, with
Bundesrat consent, can extend the impact of its actions to their terri-
tories via bills, statutory instruments, general administrative regulations
and indirectly through European Union legislation.

In other words, the Bundesrat is both the body that represents the 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.

“In the Bundesrat Germany has an instrument well-suited Prof.Dr. Wolfgang

to handling even major social challenges. This is demon- Böhmer,
strated by the way in which the new federal states have President of
been integrated, the solidarity shown in supporting the pro- the Bundesrat
found transformation processes in these federal states …” (2002/03)

61
The status of the Bundesrat

Building on a sound tradition –

forerunners of the Bundesrat
The Bundesrat is not an innovation dreamt up in the Basic Law. On
the contrary, it was preceded by a whole host of institutions with
membership structures and mandates that were either identical or at
least very similar to the modern Bundesrat.

The Regensburg Perpetual Imperial Diet (1663–1806) of the Holy

Roman Empire of the German Nation and the Frankfurt Federal Diet
of the German Confederation, set up at the 1815 Congress of Vien-
na, might even be counted as forerunners of the Bundesrat, albeit
with certain caveats.

Federal Council of The Federal Council of the 1871 German Empire was a true 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.

On 14th February 1934 the Reichsrat was dissolved by a govern-

ment decree based on the 1933 Enabling Act. Prior to this, the sov-

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.

In the wake of the total collapse of Hitler’s dictatorship, the Parlia-

mentary Council drew the logical consequences from the catastro-
phe when it drafted the Basic Law. That is why federalism is an
essential aspect of the state system in Germany, which has been in
force throughout the whole country since 3rd October 1990. In this
system the Bundesrat, the federative constitutional body at the fed-
eral level, should be understood as an institution that has evolved
over the course of history, and has been shaped by the genesis of
the German nation-state and the ensuing practical implementation of
the principle of democracy. The main hallmarks of the Bundesrat are
imbued with “constitutional DNA”, setting it firmly in a tradition that
links it to its two predecessors:

Constitutional body of the Federation (of the Reich),

Composed of representatives from the federal states’ govern-

ments,

Staggered number of votes for the federal states,

Votes are cast en bloc by each federal state on the basis of

instructions from the Land government, and

Powers and responsibilities pertaining to both legislation and

administration of the state as a whole.

The Basic Law ascribed a powerful position to the Bundesrat – it is

weaker than the Federal Council in the 1871 German Empire, yet
stronger than the Reich Council in the Weimar Republic.

Meeting of the Federal

Council in 1877.
Otto von Bismarck,
Chancellor of the
German Empire, is
speaking (standing
at the table).

63
The status of the Bundesrat

The Bundesrat’s overview of legislative activities

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 Bundesrat 29 16 5 8 14 27 75 53 38 61 51 108 147 95 116

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

Consent bills promulgated 42 % 50 % 56 % 53 % 49 % 52% 53 % 54 % 52 % 60 % 55 % 57 % 60% 55% 51%

Bills not adopted as

Bundesrat consent denied 8 6 – 3 2 1 8 9 2 – 1 9 10 7 5

Objections 1 1 3 – – 1 5 7 7 – 1 5 13 5 22

Objections overridden
by the Bundestag – 1 1 – – 1 4 5 6 – 1 4 12 2 22

Statutory instruments
dealt with by the Bundesrat 426 579 471 550 525 471 680 554 298 448 546 639 619 504 436

Administrative regulations
dealt with by the Bundesrat 110 66 58 72 62 60 81 78 45 71 61 47 69 58 30

European Community/
Union legislation 24 478 826 759 1017 660 405 634 769 783 746 604 511

Plenary sessions 116 69 54 50 56 43 55 51 28 52 53 51 54 50 35

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

Meetings of the Chamber

of European Affairs 3 4 1 1 –