The Bundesrat http://www.bundesrat.de
Information about the federal states http://www.bundesrat.de
Bills and ordinances adopted by the Federation http://www.bundesrecht.juris.de/bundesrecht/GESAMT_a.html
Subject-specific sites/Federalism
The European Centre for Federalism Research in Tübingen is planning to develop an online documentation resource on federalism. The Centre’s homepage offers a broad range of links offering more information.
http://www.uni-tuebingen.de/ezff
International servers
Committee of the Regions http://www.cor.europa.eu
European Union http://www.europa.eu
Austrian Legal Information System http://www.ris.bka.gv.at
Swiss server for legal experts http://www.legalresearch.ch
This brochure invites you to find out about the Bundesrat. It is a striking splash of colour in the ranks of legislative bodies. The Bundesrat’s composition and the range of roles it fulfils are entirely unique.
Germany’s federal system is the framework within which the
Bundesrat’s particular meaning and significance emerge.
The brochure opens with an introduction to the key traits of German federalism, in which the “parliament of the federal states’ governments” forms a link between the central federal level and the individual federal states. This is followed by an explanation of the
Bundesrat’s composition, organisation and working methods. A brief historical overview offers insights into the constitutional tradition in which the Bundesrat is embedded.
An index assists readers looking for specific terms. A bibliography and some Internet links are provided for readers who would like to do more reading on the subject.
Bundesrat
Public Relations
11055 Berlin
Germany www.bundesrat.de
We would be delighted to send you further copies of this brochure or other information material about the Bundesrat or federalism free of charge.
The federal state system
A federal constitutional body
Federalism – unity in diversity
Distinct roles and shared responsibilities
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
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. Participation in foreign affairs
10. Right to be informed by the Federal Government
11. Other roles
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
Overview of legislative activities
Annex
Bibliography
Index
Internet
4
5
10
56
59
61
62
64
50
52
53
54
18
20
23
24
14
14
16
17
25
27
29
36
41
41
42
34
34
35
36
43
44
45
46
47

Baden-
Württemberg
Area: 35752 km 2
Berlin
Area: 891 km 2
Bremen
Area: 404 km 2
Hesse
Area: 21115 km 2
Lower Saxony
Area: 47641 km 2
Rhineland-
Palatinate
Area: 19853 km 2
Saxony
Area: 18417 km 2
Schleswig-Holstein
Area: 15799 km 2
Bavaria
Area: 70552 km 2
Brandenburg
Area: 29480 km 2
Hamburg
Area: 755 km 2
Mecklenburg-Western
Pomerania
Area: 23182 km 2
North Rhine-
Westphalia
Area: 34086 km 2
Saarland
Area: 2569 km 2
Saxony-Anhalt
Area: 20447 km 2
Thuringia
Area: 16172 km 2
Total of 69 votes
Schleswig-Holstein
2,8 million Kiel
Hamburg
1,8 million
Hamburg
Schwerin
Lower Saxony
8,0 million
Bremen
Bremen
0,7 million
North-Rhine Westphalia
18,0 million
Hannover
Mecklenburg-Western Pomerania
1,7 million
Berlin
Magdeburg Potsdam
Saxony-Anhalt
2,4 million
Brandenburg
2,5 million
Berlin
3,4 million
Düsseldorf
Bonn
Hesse
6,1 million
Rhineland-Palatinate
4,0 million
Wiesbaden
Mainz
Saarland
1,0 million
Saarbrücken
Erfurt
Thuringia
2,3 million
Dresden
Saxony
4,2 million
Bavaria
12,5 million
Stuttgart
Baden-Württemberg
10,7 million
Munich
Each federal state has at least three votes
States with more than 2 million inhabitants have four votes
States with more than 6 million inhabitants have five votes
States with more than 7 million inhabitants have six votes
Total population 82.1 million
Source: Federal Statistical Office, 2008
1. Works of collected articles on the Bundesrat
Handbuch des Bundesrates / Bundesrat (Ed.),
New edition annually
Der Bundesrat im ehemaligen Preußischen
Herrenhaus / Bundesrat (Ed.), 2002
Der Bundesrat / Ziller, Gebhard/Oschatz, Georg-Berndt,
10th edition 1998
Der Bundesrat. Mitwirkung der Länder im Bund /
Pfitzer, Albert, 4th edition 1995
Praxishandbuch Bundesrat: verfassungsrechtliche
Grundlagen, Kommentar zur Geschäftsordnung,
Praxis des Bundesrates / Reuter, Konrad, 1991
Miterlebt – Mitgestaltet. Der Bundesrat im Rückblick /
Hrbeck, Rudolf (Ed.), 1989
Das Parlament der Regierenden. 40 Jahre Bundesrat.
Eine Chronik seiner Präsidenten / Herles, Helmut, 1989
2. Essays on the Bundesrat
Bundestag und Bundesrat bei der Umsetzung von
EU-Recht / Zeh, Wolfgang / In: Der Politikzyklus zwischen
Bonn und Brüssel / Derlien, Hans-Ulrich et al (Ed.), 1999, pp. 39 – 51
Das parlamentarische Regierungssystem und der
Bundesrat – Entwicklungsstand und Reformbedarf /
Dolzer, Rudolf/Sachs, Michael / In: Veröffentlichungen der
Vereinigung der Deutschen Staatsrechtslehrer, Vol. 58,
1999, pp. 7–77
Die Rolle des Bundesrates und der Länder im Prozeß der deutschen Einheit / Klein, Eckart (Ed.), Schriftenreihe der Gesellschaft für Deutschlandforschung, Vol. 66,
1998
Zusammensetzung und Verfahren des Bundesrates /
Herzog, Roman / In: Handbuch des Staatsrechts der
Bundesrepublik Deutschland / Isensee/Kirchhof (Ed.),
Vol. 2, 2nd edition 1998, pp. 505– 522
3. Works of collected articles on federalism
Die deutschen Länder: Geschichte, Politik, Wirtschaft /
Hans-Georg Wehling (Ed.), 2nd edition 2002
Ende des Föderalismus: Gleichschaltung und
Entstaatlichung der deutschen Länder von der nationalsozialistischen Machtergreifung bis zur Auflösung des Reichrats / Talmon, Stefan, in: Zeitschrift für neuere
Rechtsgeschichte, 24 (2002), pp. 112–155
Föderalismus: Analysen in entwicklungsgeschichtlicher und vergleichender Perspektive / Benz, Arthur (Ed.),
Deutsche Vereinigung für Politische Wissenschaft,
Politische Vierteljahresschrift, Sonderheft, 32/2001
German federalism: past, present, future / ed. by
Maiken Umbach. – 1. publ. Basingstoke [et al.]. Palgrave,
2002
Föderalismus in Deutschland / Bundeszentrale für politische Bildung (Ed.), Informationen zur politischen Bildung,
No. 275, 2002
Föderalismus: eine Einführung / Sturm, Roland/
Zimmermann-Steinhart, Petra, 2005
Das föderative System der Bundesrepublik
Deutschland / Laufer, Heinz/Münch, Ursula, 7th edition
1997
Föderalismus in der Bundesrepublik Deutschland: eine Einführung / Kilper, Heiderose, 1996
Föderalismus: Grundlagen und Wirkungen in der
Bundesrepublik Deutschland / Reuter, Konrad,
5th edition 1996
Zustand und Perspektiven des deutschen
Bundesstaates / Blanke, Hermann-Josef/Schwanengel,
Wito (Ed.), 2005
Föderalismusreform in Deutschland / Hennecke, Hans-
Günter (Ed.), 2005
Dokumentation der Kommission von Bundestag und
Bundesrat zur Modernisierung der bundesstaatlichen
Ordnung / Deutscher Bundestag, Bundesrat, Öffentlichkeitsarbeit (Ed.), 2005
Europäischer Föderalismus im 21. Jahrhundert /
Europäisches Zentrum für Föderalismusforschung (Ed.),
2003
Der deutsche Bundesstaat in der EU: die Mitwirkung der deutschen Länder in EU-Angelegenheiten als
Gegenstand der Föderalismus-Reform / Hrbek, Rudolf, in: Europa und seine Verfassung/Gaitanides, Charlotte
(u.a.) (Ed.), 2005, pp. 256–273
Föderalismus und Integrationsgewalt: die
Bundesrepublik Deutschland, Spanien, Italien und
Belgien als dezentralisierte Staaten in der EG /
Blanke, Hermann-Josef, 1991
Abstention
Agenda
22
23, 26, 31
Bill passed by the Bundestag 28, 38f., 64
Bound by instructions 21, 27, 50
Budget
Bundesrat (Kaiserreich)
20
62
Bundestag 4, 18, 36, 44f., 47, 59ff.
Call to order
Casting of votes
Casting votes en bloc
Centralised state
Chamber of European
23
17, 20ff.
20f.
5ff.
Union Affairs
Chamber of the
24ff., 44 federal states 34, 50, 54f., 61
Checks and balances, system of controls
Coalition government
Coat of arms
Committees
6ff., 56ff.
20
23
18f., 25ff., 30, 46
– Committee members
– Committee meetings
Consent bill
25ff.
18, 27, 56, 64
28, 36ff., 59, 64
Distribution of votes
Division of powers
Draft bill
16
4ff., 10f., 59f.
35f
– Draft bill introduced by the Bundesrat
38f., 64
– Draft bill introduced by the Bundestag 36f.
– Draft bill introduced by
– the federal government 30, 35f., 64
European Union 11, 30, 53
Federal Constitutional Court 4, 19, 37f., 48ff.
Federal Government
4, 26, 35f., 42ff., 56ff., 61
Federal President
Federal state
Federalism
Foreign policy
Incompatibility
Interests of the federal states
4, 19, 37, 48
3ff., 40, 52f., 59
4ff., 34, 52
44ff., 57
18
32ff., 52ff., 58ff.
Länder governments 14ff.
Länder parliaments
Landesvertretung, representative office of federal state
Legal ordinance
7
20, 31
42f., 57, 64
Legislative emergency
Legislative procedure
47, 54
34ff., 51
Mediation Committee 27ff., 36ff., 43, 64
Meeting/session
– Bundesrat plenary session 23f., 29f., 64
– Meeting of the Chamber
– of European Affairs 24f., 44, 64
– Meeting of Bundesrat Committees
25ff., 30f., 64
– Meeting of Mediation Committee 27ff., 36
Member
– Members of the Bundesrat 14ff., 27
– Member of Bundesrat committee 25ff.
– Member of the Chamber of
– European Affairs 25
– Member of the Mediation Committee 27f.
Minutes of the meeting
Objection bill
Official document
Opposition
Parliamentary Council
Parliamentary group
Party politics
Permanent Advisory Council
Plenary
20, 31
13ff., 18ff., 23, 30
Plenary session 14f.
President of the Bundesrat 18ff., 22, 25, 46
Presidium
Prior discussion
18ff., 22
31
Question time
Regionalisation
Reichsrat 62
46
9
46
Seat of the Bundesrat
Second chamber
Second reading
Secretariat of the Bundesrat
14
51f.
30, 36, 46
19, 31
Secretary-General of the Bundesrat
19, 23, 29
Speaking right
– Speaking right: Member of the Bundesrat
18, 23
– Speaking right: Member of
– the federal government
State of defence
26 ,46
47, 54
Statistics
Stenographers
Subsistence allowance
64
23
18
Vice-President 18
Vote-caster
21, 23, 31
38ff.
30f.
14, 56
6, 55
27
54ff.
21, 45

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

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

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

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

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

The federal state system
+ Sound balance
Mutual checks and balances, coupled with respect for each other and a need to reach compromises make it more difficult, if not well-nigh impossible, to adopt extreme stances. As federalism strikes a fair balance, it also has a stabilising effect.
+ Diversity
The division of the country into federal states or Länder ensures that a whole host of economic, political and cultural centres can exist. That offers greater scope to preserve and develop regional customs, as well as the specific historical, economic and cultural characteristics of an area. This diversity can give rise to greater freedom.
Ultimately these arguments in favour of federalism prove to be advantages for each individual citizen. Whilst the federal system may certainly have disadvantages too, these benefits clearly outweigh the drawbacks.
Disadvantages of the federal state system compared with the unitary state
– Lack of uniformity
The federal states’ autonomy automatically leads to differences.
Diversity is the opposite of uniformity. This can cause difficulties, for example, for school children if their family moves to another federal state.
– Complicated
As there are many decision-making centres in the Federal Republic of Germany, the division of powers between the Federation and the federal states means the various tiers of state must work together, show consideration, exercise mutual oversight and also respect the limits of each part of the federal structure. The ensuing intermeshing of state activities is thus complex and can be hard for the general public to understand.
– Time-consuming
Parliaments, governments and the public administrations of the
Federation and the Länder have to wait for input, decisions or con-
8

The federal state system sent from other tiers of state, as well as engaging in lengthy negotiations with each other to reach a consensus. This can also be highly time-consuming.
– Expensive
Generally speaking, the cost of maintaining distinct parliaments, governments and public administrations at the Federation and federal state level is considered to be more expensive than running the corresponding institutions in a unitary state. It is debatable whether this assumption is correct, for it would be impossible to simply dispense with institutions in the federal states by adopting a unitary state system. Various federal bodies would certainly have to grow accordingly and it is not clear that centralised mammoth authorities would really be cheaper in the final analysis.
Federalism is not a relic from the days of the stagecoach but instead, given its adaptability, a form of statehood very much in tune with our times. Nor is it a peculiarity of the German system. Looking at maps of the world, we find a whole host of countries with a federal structure, all of which are very different from each other in the details of how the system works and the impact this has on citizens in those countries. For example, the countries in the following list are all federal states, as stipulated in their constitutions: Canada, the USA,
Mexico, Brazil, Argentina, Australia, India, Russia, Austria, Belgium and Switzerland. Even such traditionally centralistic states as France,
Spain and Italy have shifted to “regionalising” their countries, which, although it does not constitute federalism, is nonetheless a step in that direction. And one thing is certain: a united Europe will only be able to survive as a federative union of states, not as something akin to a centralised state. Federalism is therefore a form of state with a future, particularly in Europe.
A form of state with a future
“Just as the Länder have made a decisive contribution to integrating the plurality of cultural and social traditions into the nation-state, the regions within a united Europe will be essential participants in allowing diversity to merge into political unity.”
Kurt Beck,
President of the Bundesrat
(2000/2001)
9

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

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

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

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

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

Organisation and working methods
States and population figures
Must all of the constituent states have the same number of representatives in the federative body representing them at national level
– for example, with each individual state having two senators, as is the case in the US Senate? Or would it be fairer and more democratic to take population figures as the yardstick, which would mean that North Rhine-Westphalia, for example, would have 26 times more votes than Bremen? An integral part of the “constitutional
DNA” in Germany is the principle of a weighting system for the number of votes allocated to represent each of the constituent states. Whilst the system is shaped by population figures in each federal state, this is not the only decisive element. Each of the federal states united in the overall state structure also “counts” in its own right. The result is a system that is a hybrid of federative and democratic representation. However, the Basic Law definitely wished to avoid a structure that would allow the larger federal states to overrule the others, whilst at the same time not making it possible for the smaller federal states to have more power than their size would merit. When the Basic Law was adopted in 1949 each of the federal states was therefore allocated at least three votes, those with over two million inhabitants were granted four votes, while five votes were given to the federal states with a population of more than six million.
New rules in the united Germany
The introduction of the five relatively small federal states from the former GDR into this system cast a new light on the balance struck between the votes allocated to small, medium and large states. It was felt that the four largest federal states should still be able to function as a blocking minority (one-third of all votes) in respect of amendments to the constitution. Article 51 (2) of the
Basic Law was therefore amended in the Treaty of Unification of
31st August 1990. A fourth category of voting rights was established, 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 majority, which is generally necessary to adopt a decision, whilst 46 votes are required for the two-thirds majority stipulated in certain instances.
Only the Minister-Presidents and Ministers in the federal states, (or
Mayors and Senate members in the case of the city-states of Berlin,
Bremen and Hamburg) may be members of the Bundesrat. State
Secretaries who have a seat and a say in the cabinet of a federal state are also entitled to be members of the Bundesrat. Membership is based on a decision adopted by each federal state government; it ends automatically if a member either leaves the Land government or is recalled due to a decision taken by the Land government.
Only cabinet members from the federal states
This means that all members of the Bundesrat have a twofold role to play. They hold a position both at federal state and national level; they are politicians in both the Land and at federal level. Members of the Bundesrat take on comprehensive political responsibility as a result. They cannot simply ignore how decisions they take within their particular federal state will impinge on national policy, whilst in their ministries in the federal states they experience first-hand the consequences of policies they pursue at the national level.
Dual function
Individual members are not free to simply vote as they see fit, for each federal state must vote en bloc in the Bundesrat. Being a member of the Bundesrat does not therefore give members a “free mandate” but nor does it imply an “imperative mandate”. Members of the
Bundesrat vote in accordance with a uniform line devised jointly by the cabinet members in each individual federal state. They represent their federal state.
The mandate – each federal state votes en bloc
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 in the Bundestag
Members of the Bundesrat enjoy an important right, which one might even describe as a prerogative, pursuant to Article 43 of the Basic
Law: they may attend all sessions of the Bundestag and its committee meetings and have the right to be heard there at all times. Furthermore, they may also appoint “representative” to exercise this right on their behalf. Members of the Bundestag do not enjoy similar opportunities to provide information and present their position in the
Bundesrat.
Dual membership of the Bundesrat and Bundestag is prohibited. The two offices cannot be combined (incompatibility).
Annual rotation among the
Minister-Presidents
All the federal states have equal rights when it comes to the most senior position representing the Bundesrat: every year one Minister-
President is elected to this position. The order is determined as a function of the population figures of the various federal states and the cycle begins with the head of government in the most populous federal state. The Minister-Presidents agreed upon this system in
1950 in Königstein/Taunus. One of the merits of this “Königstein
Agreement” is that each of the federal states assumes the presidency once every sixteen years, although the main advantage is certainly that appointments to this position are not subject to shifting majorities and party political considerations.
18

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 President 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 role to the President of the Bundesrat outside the sphere of the Bundesrat:
Powers of the head of state
“If the Federal President is unable to perform his/her duties, or if his/her office falls prematurely vacant, the President of the Bundesrat shall exercise his/her powers.”
Article 57 BL
This representative role is crucial, particularly if the Federal President is on an official visit abroad or is taking leave. In such cases, the Bundesrat President is responsible, for example, for signing bills, formally 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 representational 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 representatives 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 budget
The Presidium of the Bundesrat, i.e. the President and the two Vice-
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 – Bundesrat” 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
Advisory Council
The Presidium is assisted by a Permanent Advisory Council, which is 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 meetings on Wednesdays, a member of the Federal Government regularly provides information to the Permanent Advisory Council about the deliberations and decisions of the Federal Government.
Offices of the federal states
Each of the German federal states has a representative office in
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 respective “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.
Each federal state casts its votes en bloc
As stipulated in the Basic Law, each federal state must cast its votes en bloc, voting either for or against a motion or abstaining. Each individual 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 Bundesrat, not that of individual members of the Bundesrat. The rules on casting votes en bloc are also there to ensure that votes by members of a federal state do not simply cancel each other out. The government of each federal state is the only body authorised to issue voting instructions. As laid out in the Basic Law, neither the Minister-President (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 Bundesrat.
Instructions from the governments in the federal states
The votes of a federal state are cast by its Bundesrat members. Generally speaking, the federal state government decides before a Bundesrat session which of the members will cast the votes; alternatively, 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 federal 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 compromise solutions or can take into account new circumstances that have arisen since the cabinet meeting.
The vote-caster
The Basic Law expects that votes will be cast in a uniform, en bloc manner and respects the practice of vote-casters determined independently by the federal states; it does not encroach on the constitutional 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 Bundesrat President records the votes of each individual member of the
Bundesrat as a vote for the whole federal state, provided that another 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 an absolute majority
In the Bundesrat it is not really possible to adopt a “neutral stance” 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 amendments 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 particular 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,
President of the Bundesrat
(2003/2004)
“We need a reform of the federal system… above all there is a need to correct erroneous developments and recall once again the principles originally spelled out in the Basic Law: subsidiarity and autonomy for the federal states and municipalities, reinforcing these fundamental principles and breathing new life into them.”
22

Organisation and working methods
On Fridays at 9.30 a.m. the Bundesrat comes together for its public 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 Bundesrat; members and representatives of the federal government sit to the left and right of them on two longer rows of seats, with a section 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 hallmark of the Bundesrat’s plenary sessions. The atmosphere could well be described as cool rather than overheated; people talk calmly and sedately, focussing on the facts. Discussions also remain matter-of-fact in debates with representatives of the Federal Government, even though there are sometimes considerable differences 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 discontent or applause, which until the 90s were more or less considered poor form.
Matter-of-fact debating style
The generally comprehensive programme of issues to be addressed in the meeting – 40, 50, sometimes even over 80 points on the agenda – is tackled briskly and efficiently. The meeting usually 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.
Brisk approach to the agenda
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 certainly 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 Bundesrat’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 consideration in procedural manners, and dispense entirely with provisions on many aspects usually governed by detailed rules in other parliaments. Guidance is provided in these cases by the “customary 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 preparation for votes
While the tone in the plenary may be calm, the meetings are anything but leisurely. Given the plethora of agenda points to be examined, 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 meetings, and particularly the votes, are prepared very carefully and precisely. As a result debates are very much focused on the relevant issues, even if the debating style is not exactly spectacular.
Decisions that are to have an external legal effect must be adopted by the Bundesrat plenary session. There is one exception to this general rule: Article 52 (3a) of the Basic Law states that the Bundesrat may create a Chamber of European Affairs for matters concerning 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 European Union, particularly draft legislation. However, so far the Chamber 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 Chamber 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 Chamber is thus a kind of miniature Bundesrat to deal with particular circumstances. It may also adopt decisions without holding a meeting, using an alternative written procedure instead.
The work done in the committees lies right at the heart of parliamentary activity. Every piece of legislation, whether it is initiated by the Federal Government, the Bundestag or a federal state, is first examined in the committees. Ministers from the federal state ministries, who are well-versed in the subject-matter, or officials from their ministries go through the legislation “with a fine-tooth comb”.
Pooled expertise
Each federal state appoints a member to each committee and has one vote there. The Bundesrat has 16 committees. Their areas of responsibility 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 committees do the groundwork
The heads of the Länder governments generally represent the federal states in the Foreign Affairs Committee and the Defence Committee, which are therefore described as “political committees”.
“Political committees” and expert committees
Committee on
Foreign Affairs
Committee on European
Union Questions
Committee on Health
Committee on
Legal Affairs
Committee on
Defence
Committee on Family and
Senior Citizen Affairs
Committee on
Internal Affairs
Committee on the Envi ronment, Nature Protection and Reactor Safety
Agricultural
Committee
Finance Committee
Committee on
Cultural Affairs
Committee on Transport
Committee on Labour and Social Policy
Committee on Women and Youth
Committee on Urban
Development, Housing and Regional Planning
Committee on
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 Economic Affairs or the Finance Committee. All Committee members may be replaced by “representatives”, i.e. experts from the ministries. This facility is used especially frequently in the expert committees. 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 Environment, Nature Protection and Reactor Safety, for example participants might include experts specialised in soil protection, water resources management, protection against dangerous substances, safety in nuclear facilities, waste disposal or emissions abatement.
Practical precision work
The focus in these committees, which are of course not apolitical, is not so much on spectacular matters but instead on practical precision 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 from the federal ministries participate too
Part of the ongoing dialogue between the Federation and the federal states occurs in the committees. The Federal Chancellor and the Federal Ministers are entitled – and at the request of the Bundesrat are obliged – to attend committee meetings (as well as plenary sessions). They have the right to speak at any time. “Envoys of the Federal Government”, i.e. civil servants from the federal ministries, 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
Legislation is developed in a cooperative process involving both the
Bundestag and the Bundesrat. Approximately half of all bills – consent bills – can only enter into force if both assemblies agree. The role of the Mediation Committee is to reach a consensus if there are differences of opinion concerning these bills, or relating to objection bills.
A bridge between the Bundestag and the Bundesrat
This is a joint committee in which the Bundestag and the Bundesrat are equally represented. Each federal state has one seat, and the remaining committee members making up the other half of the group 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 appointed 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 representatives at most four times in the course of one legislative term of the
Bundestag. The meetings are strictly confidential. They are conducted by one of the two committee chairpersons, one of them a member 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.
Joint Bundestag and Bundesrat committee
Bundesrat Bundestag
Members of the Committee, including those from the Bundesrat, are not bound by instructions. It would however be unrealistic to believe 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 Bundesrat.
Party political balance of power
27

Organisation and working methods
Cases where mediation occurs
The Mediation Committee only becomes involved if it is called upon 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 Bundesrat 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 however the upper limit, for each constitutional body is only entitled to refer the same bill to the Committee once.
Proposals
Mediation Committee decisions are taken on a majority basis. All members do not by any manner of means have to support a particular “consensus proposal” – the term used to describe all the Committee’s decisions. In accordance with procedural rules, the mediation process can lead to four different outcomes:
The Committee may recommend that a bill passed by the Bundestag be revised, i.e. that provisions not acceptable to the Bundesrat 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 Committee as there are an equal number of votes in favour of and against a proposal.
Not a
“super-parliament”
The Mediation Committee may only make proposals to resolve conflicts between the Bundesrat and Bundestag, but cannot adopt bills itself. It is not a “super-parliament”.
28

Organisation and working methods
There are days when everything is quiet in the Bundesrat. Whilst there is a constant flurry of people coming and going in the Bundestag, the Bundesrat seems to be having a break. But appearances 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.
Many centres of activity yet still speedy
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 Secretary General of the Bundesrat sit next to the Bundesrat President to assist him/her in chairing the meetings and counting the votes.
The members and representatives of the Federal
Government sit to their right and left. Other Bundesrat staff also sit on the left-hand side. There are three blocks of seats from which guests of honour, visitors and journalists can follow the proceedings.

Organisation and working methods
Tight deadlines for discussions
The extremely short deadlines set for deliberations on laws – six 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 amendments 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 Bundesrat 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 meetings a year
The dates of plenary sessions are laid down in advance for each 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 proposals 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 committees 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 Government (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 federal states
These extremely short deadlines are only acceptable because the 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 federal 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 intensive discussions in the Bundesrat committees. The secretary of the lead committee compiles these into an official recommendations 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 recommendations included on the agenda of the Bundesrat. However, in practice 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-bycase basis whether the members of the Bundesrat shall be bound by instructions and how votes shall be cast.
Political decisions by the governments in the federal states
Two days before the plenary session, officials in the federal states’ representative offices discuss the meeting once again with senior officials from the Bundesrat Secretariat and the Permanent Advisory Council in the light of cabinet deliberations. At this preparatory 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 “preliminary discussion”, is regularly held immediately before the plenary session.
Search for allies
Decisions on the individual draft bills are adopted in the public 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 plenary session.
Official documents
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 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 federal states”
The Bundesrat is not responsible for dealing with the functions to be carried out by the federal states. That means it is also not a coordinating 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 periods 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 powers 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.
More than a simply advisory role
The Bundesrat’s areas of involvement relate to legislation and administration, as well as to policy on the European Union; in other words the whole sphere of state activity by the federal level in crafting policy. 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 signify that the Bundesrat is empowered to take decisions on its own – depending on the details of the individual provisions in the constitution governing this participation.
In the Federal Republic of Germany most bills are initiated in the form of draft bills from the Federal Government. The Bundesrat has the
“first say” in the parliamentary processing of executive bills. The
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 Bundesrat makes use of this right in virtually all cases. Review and discussion 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 legislation in this first reading. In this context the executive bodies in the federal states conduct an intensive dialogue with the federal executive. The Bundesrat’s checks-and-balances role in the federal system of government is manifested particularly clearly in this setting.
The Bundesrat has the “first say” on draft government bills
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 solutions. 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 assessment of a bill is not binding on the Federal Government and the Bundestag. 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.
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 particularly assess whether the Bundesrat’s opinion in the first reading has been taken into account and whether or not the Bundestag has introduced other amendments. If the Bundestag’s decision on the legislation is based on a draft bill initiated by the Bundestag only this
“second reading” occurs, even though in that case the term is actually 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 Committee 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.
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 consent bills if legislation is to be adopted.
The provisions of the Basic Law indicate which bills require Bundesrat 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 category comprises all federal bills that oblige the federal states to make cash payments, provide benefits equivalent to cash payments or provide comparable services to third parties.
Bills that impinge on the organisational and administrative jurisdiction 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 example, 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
Federal government
Draft bill
Counter-statement
Bundesrat Bundestag
Opinion
Decision by Bundesrat
Adoption Referral to MC
Decision by Bundestag
Bill passed Bill rejected
Bill fails
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:
Signature and promulgation of law
Bills may be introduced in the Bundestag by the federal government, the
Bundesrat or by members of the Bundestag (Article 76, sub-section 1,
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
Federal government
Draft bill
Counter-statement
Bundesrat
Opinion
Bundestag
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 absolute majority
Objection with
2/3 majority
Decision by Bundestag
Objection overridden with absolute majority
Objection not overridden
Bill fails
Decision by Bundestag
Objection overridden with 2/3 majority
Objection not overridden
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 consent 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 Bundesrat 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 on legislation
The Bundesrat’s constitutional status and significance are primarily 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 granting 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 substantial percentage of legislation, particularly as new cases requiring consent have been introduced in the area of finance. The Bundestag 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 consideration. 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 understanding and reciprocal consideration, values that both the Bundestag and the Bundesrat must respect as political imperatives in the federal system. That is indeed what happens in practice. In fact, as the statistics on page 64 reveal, few bills have failed as a result of being rejected by the Bundesrat.
The 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 particular 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 represent 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.
The Bundesrat is entitled to submit its own draft bills to the Bundestag. 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 Bundestag.
The Bundestag considers this draft legislation using the same procedure 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 overcoming the Bundestag’s rejection of such bills. This aspect of procedure is unfavourable for the Bundesrat, which may explain why it initiates relatively few bills. However, the Bundesrat has been successful in having measures adopted to improve legal, customer and consumer protection. The following provisions are based on legislation initiated by the Bundesrat: the right of revocation for hire-purchase 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 organised crime, as well as introducing proposals on providing cover for long-term care needs.
The Bundesrat also uses the parliamentary instrument of resolutions as a political complement to its right to initiate legislation.
These are requests, generally addressed to the Federal Government, that aim to draw attention to problems that have not yet been adequately addressed in legislation.
The Highway Code, which affects almost everyone, is not passed by the Bundestag; instead this legislation is adopted by the Federal 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 instruments from the Federal Government and individual federal ministers. 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 consent 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 Poultrymeat and Ordinance on Quantitative Analysis Methods for Binary
Textile Fibre Mixtures.
Just like statutory instruments, numerous general administrative regulations 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
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. Pursuant 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 Federal 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 “decisive 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 Government must approve the German position as determined by the
Bundesrat. In cases in which EU legislation mainly affects the exclusive 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.
Article 32 (1) of the Basic Law provides that the Federation shall be responsible for maintaining international relations with other countries. This provision does not assign this responsibility to any particular constitutional body and thus excludes neither the Bundesrat nor the Bundestag from involvement as federal bodies. Nevertheless, 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
(referred to as a “ratification law”) requires Bundesrat consent if the 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 prevent an international agreement from coming into force for Germany. The Maastricht Treaty concerning the deepening of the European Communities into the European Union, to mention just one example, required the Bundesrat’s consent. Other types of agreement subject to the Bundesrat’s approval include agreements on disaster relief, administrative and judicial cooperation, tax law, pension law, the protection of capital investments, and environmental protection.
Consent to ratification bills
If the Basic Law does not require consent for national implementation 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 Bundestag 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.
Pursuant to Article 53, third sentence of the Basic Law, the Bundesrat shall be “kept informed by the Federal Government with regard to the conduct of its affairs”. This obligation to provide information 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 situation, foreign and defence policy. The Federal Government must provide comprehensive and timely information on an ongoing basis at its own initiative. Furthermore the Bundesrat is entitled to “summon” any member of the Federal Government to its plenary and committee meetings and put questions to them. Conversely, members 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 Bundestag.
46

The roles played by the Bundesrat
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 Bundesrat 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 Federal Supreme Court and for Deutsche Bundesbank Board Members.
The Federal Minister of Finance must account annually to the Bundestag 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
Bundestag, without the Bundestag being dissolved, a complex procedure allows the Federal Government to adopt bills with the consent 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.
Legislative emergency
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 natural catastrophes. Bundesrat consent is also required if the Bundestag 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 Federal 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.

49

The status of the Bundesrat
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 voting. They would argue that these specific features mean one cannot 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 constituent states differ from the yardstick taken when considering a body that represents the people.
Two legislative assemblies
United Kingdom
Parliament
The Netherlands
States-General
House of Lords
House of Commons
Switzerland
Federal Assembly
First
Chamber
USA
Second
Chamber
Congress
Council of States
National
Council
Senate House of
Representatives
On occasion critics seek to use the stance of the Federal Constitutional 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

“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 unreservedly 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 provisions of the Basic Law. The Bundesrat can certainly be categorised 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 merely 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”.
“A unique body”
“Democracy is not just a set of rules that helps us to take equitable and reasonable decisions. Democracy is also a life form that needs tangible possibilities to develop its potential. The federal states and above all the municipalities and districts are and will remain the most appropriate place for that.”
51
Klaus Wowereit,
President of the
Bundesrat
(2001/02)

The status of the Bundesrat
The basic idea underlying the democratic and federal constitution of Germany is the division of powers. The Federation and the federal 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 feature 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 Federation. 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 Federation 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 and link
The Bundesrat has a dual role to play in exercising these roles: on 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
In every state based on a federal system there is a natural tension between the state as a whole and the constituent states. The Federation 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 Government are the “central authorities”, to which the Basic Law has allocated 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 concerns 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 between the Federation and the federal states i.e. provisions on legislative, administrative and judicial competences within Germany and in the European Union context.
Right of veto
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 the whole story when it comes to the interests of the federal states?
Is it not much more the case that the governments of the Länder 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 “interests of the federal states” and the “interests of citizens”, given that democratic states exist to serve their citizens? It is certainly impossible to draw a clear-cut distinction.
What are the interests of the federal states?
53

The status of the Bundesrat
Responsibility for federal policies
The Basic Law does not limit the Bundesrat to merely representing the interests of the federal states. Instead the Bundesrat also shares responsibility for overall federal policy. That becomes apparent 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 Bundesrat 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 comprehensive right of scrutiny, meaning that it can also reject the bill due to other provisions that do not fall directly into the consent category. The right to receive comprehensive information from the Federal Government, the participation of the Bundesrat when the state of defence applies and its status as a “reserve of legality” in legislative emergencies are also manifestations of the responsibility the
Bundesrat shoulders for the whole country, a role that extends far beyond defending regional interests.
Party politics in the Bundesrat?
The Bundesrat is a political organ, for it is made up of politicians and has a political remit. This puts it in a natural state of competition with the Bundestag and the Federal Government. These two constitutional bodies are however not just political fora, but also express the party political balance of power. However, in its capacity as a federative 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 participate in political decision-making. Within the system defined by the constitution, they are actually the real “pillars of policy”; we live 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 ourselves or our ideas.”
Parties must use their critical judgement
In political discourse the issue of how much influence the parties should have in the political decision-making process remains controversial, 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 precisely where this demarcation line lies. Instead it is up to the political 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 constitutional body.
“I am profoundly convinced that the Bundesrat’s fact-based approach can serve as a role model for political action at other levels. Here the well-being of the state ranks above self-interest, here party political interests are not the yardstick for actions and decisions, here the focus is on the interests of the federal states and the well-being of their citizens.”
55
Peter Harry
Carstensen,
President of the Bundesrat
(2005/06)

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 different 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 federal 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.
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. Nonetheless 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 legislative process. Whilst the principle of division of powers means that the government cannot simply promulgate bills, it does however 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 experienced 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 can no longer be slotted into the category of classical foreign policy, 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 Federal 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.
European domestic policy
The Bundesrat also takes on a comprehensive monitoring role in the sphere of the actual executive activity of the Federal Government,
Basic Law
Monitoring and 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 regulations, 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 counterpart
Generally speaking, it is fair to say that the Bundesrat constitutes a more difficult political counterpart for the Federal Government than the Bundestag does, for within the parliamentary system the majority in the Bundestag determines which party or parties are in government and thus supports the government. In contrast, in the Bundesrat 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 differ, 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 Government 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 Bundesrat’s principal role.
58

The status of the Bundesrat
The Basic Law provides that two legislative bodies shall be responsible for federal legislation. The Bundestag and the Bundesrat are however not accorded an entirely equal status. The degree of Bundesrat “participation” varies depending on the type of legislation.
In the case of consent bills, the Bundesrat’s corrective role is immediately 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 disputes, but the main focus is on striving to reach sound, fact-based solutions to the problems considered. Such efforts are part-and-parcel 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 powersharing and the checks-and-balances built into the federal system.
In its capacity as the representative of the federal states, the Bundesrat is responsible for ensuring the interests of the whole federation 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
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 decisions
Much of the Bundesrat’s political significance derives from the significant role it plays in shaping the Federation’s legislative framework, 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 positive, if one does not overemphasise the kind of exceptional situation described above; it is also important to bear in mind that unusual 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
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 territories 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 federal states to the Federation and the body that represents the Federation to the federal states. This “mediator role” is particularly important given the close interlinking between the competences of the Federation and the federal states, which are much more closely intermingled than, for example, in the USA. The Bundesrat must defend the interests of the individual federal states, whilst at the same time also bearing 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 interests 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 to handling even major social challenges. This is demonstrated by the way in which the new federal states have been integrated, the solidarity shown in supporting the profound transformation processes in these federal states …”
Prof.Dr. Wolfgang
Böhmer,
President of the Bundesrat
(2002/03)
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The status 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 Vienna, might even be counted as forerunners of the Bundesrat, albeit with certain caveats.
Federal Council of the German Empire
The Federal Council of the 1871 German Empire was a true predecessor of the Bundesrat and was a key component in the constitutional 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 powers 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 Parliament if the emperor agreed.
The Reichsrat of the Weimar Republic
The constitution of the Weimar Republic, established in 1919, was 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 President 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 government 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 governments 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 Parliamentary Council drew the logical consequences from the catastrophe 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 federal 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’ governments,
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.
63
Meeting of the Federal
Council in 1877.
Otto von Bismarck,
Chancellor of the
German Empire, is speaking (standing at the table).

The status of the Bundesrat
Bundestag’s term of office
Draft bills from federal government
Draft bills from Bundesrat
1949
–5
3
1953
–5
7
1957
–6
1
196
1–
65
1965
–6
9
1969
–7
2
1972
–7
6
1976
–8
0 3
1980–8 1983
–8
7
1987–
90
1990–
94
1994
2
–9
8
1998
–200
200
2–2005
1.
2.
3.
. 4.
. 5.
.. 6.
7.
8.
9.
10.
11. 12.
13. 14. 15.
481 434 391 370 414 350 470 323 155 283 324 413 443 446 353
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
Bills promulgated
70 59 46 34 34 31 96 69 17 6 13 71 74 66 90
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
Objections
8
1
6
1
–
3
3
–
2
–
1
1
8
5
9
7
2
7
–
–
1
1
9
5
10
13
7 5
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
116 69 54 50 56 43 55 51 28 52 53 51 54 50 35 Plenary sessions
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 –