2.2 The Federal Level of the Political System

The constitutional bodies or institutions of the Federal Republic of Germany are:
  • the Deutscher Bundestag (or Federal Diet),
  • The Bundesrat (or Federal Council),
  • the Federal President,
  • the Federal Government, and
  • The Federal Constitutional Court.

Deutscher Bundestag (Federal Diet)
The Deutscher Bundestag is the parliament of the Federal Republic of Germany. It represents the German people in the exercise of state authority. It is the supreme popular representative body of the Federal Republic of Germany.
The Bundestag is elected by direct universal suffrage in a free and secret ballot for a four-year term. It has a statutory membership of 598.58 As a rule, members of the Bundestag are organised in parliamentary groups (Fraktionen). The term is applied to a grouping of all the members of parliament who belong to one political party. A parliamentary group currently consists of at least 30 members.59 The parliamentary work of the Bundestag is characterised by a division of labour. Much parliamentary work takes place in committees. The present, 16th Bundestag has 22 standing committees.60 The job of these committees is to discuss bills and other initiatives, and thus to prepare the decisions of the Bundestag. In addition to the standing committees, which are constituted at the beginning of the legislative period, there are ad hoc committees set up from time to time for a special purpose, which are dissolved once that purpose has been fulfilled (e.g., committees of inquiry).
Membership of the committees is determined by the parliamentary groups in proportion to their numerical strength. Parliamentary groups prepare committee work in internal working circles and groups.61
The Bundestag chooses its president and vice-presidents from among its members (Article 40 (1) sentence 1 of the Basic Law). They form the Presidium of the Bundestag. The Council of Elders is composed of the Presidium and a further 23 members. It liaises between Presidium and parliamentary groups. The functions of the Bundestag President include representing the Bundestag, organising its business, and exercising proprietary and police powers.
The Bundestag elects the Federal Chancellor, exercises parliamentary control over the Federal Government, adopts the budget, and controls finances.
The Bundestag is the legislative body at the federal level. The legislative powers of the Federation and the states, as well as the requirement of Bundesrat assent for certain legislation were reorganised in the course of the so-called "federalism reform" in 2006.62 The main changes include:

  • the abolition of framework legislation (Article 75 of the unamended Basic Law),
  • reorganisation of the catalogue of the Federation's exclusive legislative powers,
  • reorganisation of the catalogue of concurrent legislation in conjunction with a reduction in the area of application of the requirements clause under Article 72 (2) of the Basic Law and introduction of a derogation clause in certain areas of legislation,
  • abolition of the assent rights of the Bundesrat pursuant to Article 84 (1) of the Basic Law and introduction of new cases requiring assent to federal legislation involving considerable costs for the states (Article 104a (4) of the Basic Law).63

Article 73, points 1 to 14 of the Basic Law lists the areas in which the Federation has exclusive legislative powers to regulate matters uniformly for all states. The main fields are foreign affairs; defence; border protection; currency, money, and coinage; matters relating to the registration of residence or domicile and to identity cards; air transport; and protection against international terrorism.64 Article 72 (1) of the Basic Law gives the states the right to pass laws in matters of concurrent legislation as long as and to the extent that the Federation does not exercise its legislative powers. Among the pertinent areas listed under Article 74, points 1 to 33, are civil law, criminal law, economic and labour law, real property transactions, land law (except for laws respecting development fees), the law relating to housing benefit, the regulation of assistance with old debt, road transport, waste disposal, clean air and noise abatement, nature conservation and landscape management, spatial planning, civil service law, as well as admission to higher education, and higher educational degrees. While under the old legal conditions, the Federation had to furnish evidence of the necessity for regulation by federal law in all matters of concurrent legislation, the proof required under Article 72 (2) of the Basic Law (unamended) now applies only to matters listed in Article 74 (1) points 4, 7, 11, 13, 15, 19a, 20, 22, 25, and 26 of the Basic Law (unamended). If the Federation exercises its right of concurrent legislation, the states may legislate for deviating arrangements in the areas listed in Article 72 (3) points 1 to 6. They include spatial planning, land distribution, as well as nature conservation and landscape management (except for the general principles of nature conservation, the law relating to species conservation or marine nature conservation).

Bundesrat (Federal Council)
Through the Bundesrat or Federal Council, the states participate directly in the decision-making and legislative processes of the Federation ("Chamber of the States"). The federalism principle requires a governmental institution that both defends the interests of the constitutive states in the political and legislative decisions of the Federation and acts as a mediator and intermediary institution between the Federation and the states.65 The Bundesrat is composed of members of state governments. Depending on their population, the 16 states delegate between 3 and 6 members to the council (Article 51 of the Basic Law). The minister presidents and ministers of the respective states can be members of the Bundesrat.66 From the city states of Berlin, Hamburg, and Bremen, mayors and senators may be delegated. State secretaries can be members of the Bundesrat if they have cabinet rank. The votes of each state government must be cast en bloc. In contrast to members of the Bundestag, who exercise a free mandate, members of the Bundesrat are bound by the instructions of their state government and can be instructed on how to vote (imperative mandate).
The minister presidents of the states are each elected President of the Bundesrat in turn for a period of one year. His duties include convening and chairing plenary sessions. The President of the Bundesrat deputizes for the Federal President (Article 57 of the Basic Law).
The Presidium of the Bundesrat includes the President and three vice-presidents. The main tasks of the Presidium are the annual preparation of the budget and decision making on certain internal matters unless they are the concern of the plenum.
As in the Bundestag, much of the actual work of the Bundesrat is carried out in committees. For this purpose, the Bundesrat has set up 16 functional committees grouping the relevant ministers from each of the states.67
The constitutional status and importance of the Bundesrat is grounded essentially in its legislative rights, since certain laws require its assent. The Basic Law stipulates what categories of law are concerned. They include:

  • laws amending the constitution, which require a two-thirds majority;
  • federal laws dealing with government liability and with the status rights and duties of civil servants of the states, local authorities and other corporations under public law, and of judges in the states, with the exception of matters concerning careers, remuneration and pensions and related benefits (Article 74 (2) as amended);
  • federal legislation regulating administrative procedures of the states without derogation options (Article 84 (1) sentences 5 and 6 of the Basic Law as amended; where derogation is possible and a state has adopted diverging provisions pursuant to Article 84 (1) sentence 2 of the Basic Law as amended, such provisions come into effect at the earliest six months after promulgation unless otherwise provided with the assent of the Bundesrat (Article 84 (1) sentence 3 of the Basic Law as amended;
  • general administrative rules of the Federal Government (Article 84 (2) of the Basic Law;
  • federal legislation that commits the states to cash and non-cash expenditures or comparable services for third parties, which is to be implemented by the states in their own right or on behalf of the Federation (Article 104a (4) as amended).

With respect to other legislation, the Bundesrat may enter an objection to a law adopted by the Bundestag, which can be overruled by a majority of the members of the Bundestag. If the Bundesrat adopts the objection by a majority of at least two thirds of its votes, its rejection by the Bundestag requires a two-thirds majority, including at least a majority of the members of the Bundestag (Article 77 (3) and (4) of the Basic Law).

The Bundespräsident (Federal President)
The Federal President is the head of state of the Federal Republic of Germany and represents the country at international law vis-à-vis other countries; foreign policy itself, however, is in the hands of the Federal Government.68 Although the Federal President's functions are predominantly ceremonial, his neutral position allows him to help reconcile political interests and provide the citizens with guidance on socio-political issues.69
Apart from his ceremonial and external representative duties, the Federal President exercises certain other rights. However, he may do so only in collaboration with other constitutional institutions. His instructions and orders are valid only with the assent of the Federal Chancellor or the competent federal minister. They assume full political responsibility. The Federal President himself bears no direct responsibility. This applies with regard to:

  • the signing of laws
  • the appointment of federal ministers,
  • the appointment of federal judges, federal civil servants, officers and non-commissioned officers, and
  • the prerogative of pardon.70

The Federal President may act independently only in situations of crisis:

  • If a candidate for the chancellorship fails to obtain an absolute majority on the third ballot, gaining only a simple majority, the Federal President may appoint him/her or dissolve the Bundestag to enable a new general election (Article 63 (4) of the Basic Law).
  • If the Federal Chancellor obtains no majority on a vote of confidence, the Federal President may dissolve the Bundestag on the proposal of the Federal Chancellor.71

The Federal President is not directly elected by the people but by a Federal Assembly (Bundesversammlung) convened for this purpose alone. It consists of the members of the Bundestag and an equal number of members elected by the parliaments of the states on the basis of proportional representation (Article 54 (2) of the Basic Law). These delegates need not be members of a Landtag.72 The 12th Federal Assembly, which met on 23rd May 2004 and which elected the incumbent Federal President, had a membership of 1205.73 Any German who is entitled to vote in Bundestag elections and has attained the age of forty may be elected Federal President (Article 54 (1) of the Basic Law). The person receiving the votes of a majority of the members of the Federal Assembly is deemed elected. If after two ballots no candidate has obtained such a majority, the person who receives the largest number of votes on the next ballot is elected (Article 54 (6) of the Basic Law). He is appointed for a term of five years. Reelection for a consecutive term is permitted only once (Article 54 (2) of the Basic Law).

Bundesregierung (Federal Government) and Bundeskanzler (Federal Chancellor)
Executive power is vested in the Federal Government.74 The Federal Government handles the governmental and political business incumbent on the Federation.75
The action of the Federal Government is determined by three principles laid down by Article 65 of the Basic Law:

  • the chancellor principle,
  • the departmental principle, and
  • the collegial principle.76

The Federal Government consists of the Federal Chancellor and the federal ministers. The Federal Government is a collegial body in which the Federal Chancellor occupies a prominent position because he or she determines and bears responsibility for the general guidelines of policy. This power lends the Chancellor the leading role in the cabinet, since he/she cannot be outvoted by a majority in the cabinet (chancellor principle).77 Federal ministers manage the area of responsibility assigned to them independently and on their own responsibility within the framework of the government policy guidelines set by the Chancellor (departmental principle).78 The Federal Minister of Transport, Building, and Urban Development is responsible for spatial planning at the federal level.
The Federal Chancellor is elected by a majority of the members of the Deutscher Bundestag. If after two ballots no candidate has obtained a majority, the candidate winning the highest number of votes is elected. If the absolute majority is not obtained on the third ballot, the Federal President may dissolve the Bundestag and call new elections if he does not see fit to appoint the candidate thus elected. Federal ministers are appointed and dismissed by the Federal President upon the proposal of the Federal Chancellor.
The Federal Chancellor is accountable to the Bundestag. The Bundestag may express its lack of confidence in the Federal Chancellor only by electing a successor by the vote of a majority of its members and requesting the Federal President to dismiss the Chancellor. The Federal President must comply with the request and appoint the person elected (Article 67 (1) of the Basic Law). This process is termed a constructive vote of no confidence.

Bundesverfassungsgericht (Federal Constitutional Court)
The Federal Constitutional Court is both an independent constitutional body and part of the judiciary with competence for constitutional and international law. Its chief responsibilities are to assess the compatibility of federal and state law with the Basic Law, to decide conflicts between federal institutions or with the states, and to hear constitutional appeals brought by citizens or local authorities.79 The work of the Federal Constitutional Court contributes to enhancing the reputation and effectiveness of the free democratic basic order, especially in enforcing basic rights. The decisions of the Federal Constitutional Court are binding on the constitutional institutions of the Federation and the states and on all courts and public authorities (Article 31 (1) of the Basic Law).
Types of proceeding before the courts include constitutional appeal, concrete and abstract judicial review, inter-institutional disputes, disputes between the Federation and the states, and competence surrogation with respect to concurrent legislation.
The court is composed of two senates and six chambers with differing substantive competence. The Federal Constitutional Court consists of federal judges. Half the members of the court are chosen by the Bundestag and half by the Bundesrat. They may not be members of the Bundestag, of the Bundesrat, of the Federal Government, or of any of the corresponding institutions of a state. (Article 94 (1) of the Basic Law). They are appointed for a single term of 12 years. There is an age limit of 68 years. The judges wear scarlet robes with a white jabot.
The seat of the Federal Constitutional Court is Karlsruhe.

 


58 Cf. Stein/Götz, Staatsrecht, 75.
59 Cf. Badura, Staatsrecht, E Rn. 33.
60 Cf. Pötzsch, Die deutsche Demokratie, 57 ff.
61 Cf. Stein/Götz, Staatsrecht, 75.
62 Grundgesetz für die Bundesrepublik Deutschland of 23 May 1949 (BGBl. 1949, 1), amended by statute on 28.08.06 (BGBl. I 2034).
63 Cf. BR-Drs. 651/06, 04. 09. 06.
64 Cf. Katz, Staatsrecht, Rn. 425, 214.
65 Cf. Katz, Staatsrecht, Rn. 369, 188 f.
66 Cf. Katz, Staatsrecht, Rn. 375, 190.
67 Cf. Pötzsch, Die deutsche Demokratie, 2004, 70 ff.
68 Cf. Badura, Staatsrecht, E Rn. 86, 508.
69 Cf. Katz, Staatsrecht, Rn. 384, 195 f.
70 Cf. Katz, Staatsrecht, Rn. 385 ff., 196 f.
71 Cf. Badura, Staatsrecht, E Rn. 81, S. 506.
72 Cf. Badura, Staatsrecht, Rn. 382, 194 f.
73 Cf. Fehndrich, Martin, Die 12. Bundesversammlung 2004, http://www.wahlrecht.de/lexikon/ bundesversammlung-2004.html, accessed on 31.07.2006.
74 The concept “executive power” is not to be understood in the narrow sense of merely carrying out laws but in a broader sense as the sum of governmental and administrative activities. Cf. Katz, Staatsrecht, Rn. 396, 200.
75 Cf. Badura, Staatsrecht, E Rn. 89,509 f.
76 Cf. Katz, Staatsrecht, Rn. 408, 205.
77 Cf. Badura, Staatsrecht, E Rn. 90, 510.
78 Cf. Katz, Staatsrecht, Rn. 410, 206.
79 Cf. Badura, Staatsrecht, H Rn. 50, 692.