The BUNDESRAT THE FEDERAL COUNCIL OF GERMANY

On July 7th, 2006, the Bundesrat adopted once and for all a reform of the German federal system. The autonomy of the Länder has been reinforced by new competences. On the other hand, under the new reforms, the number of bills that will be eligible to be passed without endorsement form the Bundesrat will increase.

The reform will come into force in 2007.

I - COMPOSITION

The Bundesrat is composed of members of government from the 16 Länder, which appoint and recall members.

This amounts to 69 members.

Each Land has at least three votes. Länder with over two million inhabitants have four votes. Those with over six million inhabitants have five and those with over seven million inhabitants have six votes.

The votes of each Land can be given only in total and only by the members present or by their representatives.


II - APPOINTMENT SYSTEM

There are 16 plurinominal constituencies (three to six seats) corresponding to the Länder.

Each Land can delegate as many members as it has votes.

Term of office: depends on whether Bundesrat members are members of government of the Land they represent.


III - SESSION CALENDAR

One single session per year.

In practice, the Bundesrat generally convenes one Friday per month at 9:30 a.m., with an interruption in August.


IV - RELATIONS WITH THE OTHER CHAMBER AND EXECUTIVE

A - LEGISLATIVE POWER

1) Legislative initiative

Attributed to the Bundesrat concurrently with the federal Government and Bundestag members.

Most laws, however, are originated from within Government.

2) Right of amendment

Yes.

3) Legislative procedure

a) Submission and transmission

Draft laws are submitted to the Bundestag, whereas government draft laws are initially submitted to the Bundesrat (for preliminary consideration of the proposed statutes in committee). The Bundesrat is entitled to formulate a position regarding the draft statutes within six weeks (or three weeks for cases of particular emergency, as designated by the federal government). The Bundesrat may invoke the importance of the matter to request an extension to nine weeks (see below, point e/).

The federal Government sends Bundesrat draft laws to the Bundestag along with its opinion.

Federal laws are adopted by the Bundestag. Once passed, the Bundestag President immediately sends them to the Bundesrat.

b) Reconciliation procedure

The Bundesrat is entitled to request the establishment of a commission within three weeks. The commission is composed of members from both assemblies according to rules of composition and procedures laid down by internal regulations adopted by the Bundestag and approved by the Bundesrat.

Bundesrat members appointed to the commission are not bound by instructions.

When a law requires Bundesrat approval, the establishment of the commission may also be requested by the Bundestag and the federal Government.

The Bundestag must deliberate again should the commission propose an amendment to the statute

c) Continuation of the procedure

After the reconciliation procedure, should a statute require Bundesrat approval, the Bundesrat may issue its opposition within two weeks against a law passed by the Bundestag.

If the opposition proposal is supported by a majority of Bundesrat votes, the proposal may be raised by a deliberation supposed by the majority of Bundestag members. Should the Bundesrat opposition be supported by a two-thirds majority of its members, a majority of at least two-thirds of Bundestag members is required to remove the opposition.

These measures apply when the mediation commission cannot achieve an agreement. In practice, agreement is usually obtained.

It should be pointed out that an abstention is deemed a vote against the proposal.

d) State of legislative necessity

In the event that the vote of confidence requested by the federal Chancellor is not granted by the Bundestag and that the Bundestag is not dissolved, the President of the federal Republic may declare a state of legislative necessity at the request of the federal Government and with Bundesrat approval with regard to a draft law rejected by the Bundestag, even though the federal Government has declared it to be urgent.

In the event that the Bundestag rejects the draft statute again, or if adopted in terms the federal Government declares unacceptable, or if the Bundestag does not vote the draft within four weeks of receiving the latest proposal, the law is considered passed if the Bundesrat issues its approval.

During a federal chancellor's term of office, the same provisions apply to draft laws rejected by the Bundestag within six months with effect from the declaration of a state of legislative necessity. After this period, a state of legislative necessity may not be declared a second time during the same federal chancellor's term of office.

e) Approval from the Bundesrat to adopt specific laws

These laws specifically Länders' interests and enter into effect only if formally approved by the Bundesrat. The Bundestag and federal Government may each instigate a single attempt at reconciliation by referring to the mediation commission. The draft laws are deemed null and void if the Bundesrat continues to withhold approval.

These laws may be categorised in four groups:

ð laws which amend the Basic Law. Two-thirds majority approval from the Bundesrat is required

ð Laws affecting Länders' fiscal revenue. This applies notably to laws concerning taxes to which Länder and local authorities contribute in generating, such as income tax, value added tax and vehicle taxes

ð Laws affecting Länders' administrative sovereignty. His type of law is particularly important numerically. A law merely has to contain one provision of this type to require approval in toto from the Bundesrat. This is the case, for example, when specific regulations regarding jurisdiction, forms, deadlines, administrative taxes and terms of notification are recommended to Länder authorities by federal law. Such specific provisions may therefore require Bundesrat approval even though they basically do not affect Länders' interests, for example, in the case of international treaties and matters concerning defence

ð Transfer of sovereignty to the European Union

The rank and importance granted the Bundesrat in constitutional terms are given form primarily in the right of co-decision exercised with regard to laws of approval. The Bundesrat may have a strong influence on legislation thanks to this right because almost half of all federal laws are laws of approval, most of which refer to more controversial domestic policy issues. The Bundestag is therefore not authorised to legislate alone in one out of every two laws. In its decisions, it must take account of the point of view of the Bundesrat which cannot legislate alone either.

Both chambers are require to evidence moderation, consideration, understanding and respect to each other and to acknowledge these qualities as political principles laid down by the Federal State, which they are, as few laws fail to be passed owing to a definitive rejection from the Bundesrat.

In practice, over 50% of all statutes fall within one of these categories.

f) Specific provisions in budgetary matters

Draft budget and financial laws are sent to the Bundesrat at the same time as they are submitted to the Bundestag. The Bundesrat may adopt a position on draft laws within six weeks (three weeks to rectifications).

B - ACCOUNTABILITY

1) Budgetary accountability

The federal minister of finances must submit to the Bundesrat (and Bundestag) an account justifying all budget revenue and expenditure in the following year, as well as a statement of debts and credits to obtain approval from the federal Government.

Each year, the federal court of accounts must draw up a report on budget and economic management to be submitted to the Bundesrat, Bundestag and federal Government.

2) With regard to European issues

The Bundesrat has set up a chamber for European matters (a "mini Bundesrat") as a forum for discussion in urgent and confidential matters relating to the European Union. The chamber adopts opinions for and on behalf of the plenary assembly.

C - COMMISSIONS

The heart of the Bundesrat's parliamentary activity lies in the work done by commissions, of which there are 16 and whose field of competence practically converges with ministers' portfolios.

V - SPECIFIC PROVISIONS

A - CHANGES TO THE BASIC LAW

Laws amending the Basic Law must be approved by two thirds of Bundestag members and two-thirds of Bundesrat members.

B - STATE OF DEFENCE

Bundesrat approval is required to establish - by the Bundestag - that federal territory is the object of armed aggression or that such aggression is imminent (state of defence).

In this context, the federal Government's draft laws which have been declared urgent are sent to the Bundesrat at the same time as to the Bundestag. Both assemblies deliberate these projects immediately and together.

Joint commission

If the joint commission (two-thirds of whose members are from the Bundestag, one-third from the Bundesrat, each representing one Land and not bound by instructions) considers that there are insurmountable obstacles preventing the assembly of the Bundestag (a majority of two-thirds of votes cast, corresponding to the majority of members comprising the commission) or that the Bundestag cannot deliberate because a quorum is not achieve, the commission can then replace both assemblies and exercise their joint prerogatives.

At its own initiative or at the request of the Bundesrat, the Bundestag may with Bundesrat approval add to laws adopted by the joint commission.

Other measures taken by the joint commission or the federal Government to remove the danger must be raised should both assemblies so decide.

End of the state of defence

From its own volition or at the request of the Bundesrat, the Bundestag may decree an end to the state of defence with the Bundesrat's approval at any time. This is done by means of a decision promulgated by the federal President.

C - JURISDICTION OVER FEDERAL MATTERS

Specific regulations issued by the federal Government or a federal minister regarding the administration of the federation are subject to Bundesrat approval.

D - ORDER ISSUED BY THE BUNDESRAT (and the Bundestag) TO TERMINATE THE DEPLOYMENT OF ARMED FORCES

E - IMPEACHMENT OF THE FEDERAL PRESIDENT by the Bundesrat (or Bundestag) before the Federal Constitutional Court for deliberate breach of the Basic Law or another federal law (requires two-thirds of votes).

F - In the event of incapacity by the federal President, the federal president's powers are assumed by the Bundesrat President.

G - The Bundesrat elects half the members of the FEDERAL CONSTITUTIONAL COURT (the other half is elected by the Bundestag).