The German Constitutional system with a
special aspect to the German Bundestag,
the German parlament.
Ass. iur. Ingo Koschenz, Mag. rer. publ
koschenz@uni-potsdam.de
Content
1. The German Constitutional System written in the „Grundgesetz“
(Basic Law)
2. The execitive power
3. The Legislation in Germany
4. The German Bundestag
• The actual German Bundestag
• The majority in the past
• The system of election into the Bundestag
• Special: The problem of „overhang-mandates“
The German Constitutional System
The German Constitutional System
 The German constitutional system is an example of a parlamentary democracy. It is – because
of the strong position of the Chancellor - also called “Chancellor´s democracy”.
 The Bundestag elects the Chancellor as head of government and head of executive power. He is





designated, but he is not implemented by the president. So at least it is in the constitutional system
not possible to have a Chancellor and a government without the confidence of the parliament.
So the vote of no-confidence in Germany has to be constructive: It´s not possible to deselect the
chancellor by the Bundestag without voting a new one!
The Chancellor determines the guidelines of the policy – what fits with the Chancellor´s majority in
the Bundestag.
The president don´t have a political function. He only represents Germany, but ho has no executive
power..
In Legislation the president has no veto. So he has to sign every law that has gone through a normal
legislation procedure.
Because of the weak position of Mr. President, he is not directly elected by the German people. He is
elected by a special creation organ the Bundesversammlung (Federal Assembly), which consist of
all members of the Bundestag and an equal number of representatives elected by the parliaments of
the 16 Federal States. In fact everybody know who wins before the elections…
The German Constitutional System
 The Legislation in Germany works by playing together of
Bundestag and Bundesrat (Federal Council).
 But the “Bundesrsat” is not a second chamber of the parlament! It´s the




“representation of the Federal States of Germany”.
The Bundesrat only can stop a law which also include the power of the Federal States
written in the Grundgesetz. In all other cases the Bundesrat only has the right of a
suspensive veto, which can be overriden by the 50%+ one vote (Chancellor´s
Majority) in the Bundestag.
The Bundesrat consist of representatives of the Governments of the Federal States.
States have between 3 and 6 votes – depending on the size. Total number of votes 69.
Very often Chancellor´s majority don´t have a majority in the Bundesrat. Very
typically for Germany is a great political compromise, because there are many laws
affecting the power of the countries.
To amend the German Grundgesetz you need a 2/3-Majority in Bundetag and
Bundesrat. It´s not possible to make so called “constitutional laws” like in CR. There
is no amendment of constitution without directly changing the text of constitution.
§
The German Bundestag:
The 17th Bundestag
(elected 2009-2013)
Opposition:
Social Democrats:
146 seats
Green:
68 seats
Left-Party (formal communists):76 seats
Together:
290 seats
Government:
CDU (conservative) :
CSU (very conservative):
FDP (liberal):
Together:
193 seats
44 seats
93 seats
330 seats
Results of the elections to the Bundestag and
federal Governments of 1949 until today
The system of election into the
Bundestag
 The Bundestag is elected in a so called
„personalized-proportional system“
 Everybody has two votes
 First vote for a candidate in the constituency after the
„first-past-the-post“ system in one of the 299
constituencies in Germany
• Second vote is for a party list, which represent the
strength of a party in the Bundestag
First the 299 directly elected candidates become members
Of the Bundestag (mostly candidates of CDU/ CSU or SPD)
After that the list candidates fill the vacant 299 seats
Proportional after the strength of the party by the results
of the second vote.
5%-Border: Parties with less than 5% of the votes or less than
3 directly elected candidates are not allowed to fill in the seats.
The system of election into the
Bundestag
 The problem of „overhang-mandats”:
 The German Bundestag normally has 598 seats, but in the moment, we have 620 members of
parliament
 Reason for this is the existence of at the moment 22 so called “overhang-mandates” (20 for CDU, 2 for
CSU)
 Germany votes in each of the 16 states, so the system of the directly elected candidates and the fill in by
list works separate for every state
 If you win more candidates by the first vote than you proportional won by the second vote, the elected
candidates are allowed to become member of parliament as a so called “overhang”.
 In the 2009 election for example the CSU won all 45 constituencies in Bavaria, but the second vote
result gave them only 42 seats. So the CSU got 3 overhang-mandates
 But after the elections one of the members of Bundestag of CSU, Mr. Seehofer became Prime-minister
of Bavaria and resigns as member of Bundestag, so CSU and the German Bundestag lost one member
during the period.
The system of election into the
Bundestag
 The problem of „overhang-mandats”:
 The German Federal Constitutional Courts has rejected the current system of overhang-mandates as
unconstitutional.
 The main problem is the problem of “ negative vote weight” (inverse success value): A bad result for a
party by the second vote with a very good result by the first vote can bring the party more seats than a
good result in both systems of voting
 The German Constitutional Court means that the principle “one man one vote” and “every vote is equal”
does not fit with this result of the votes. For example at the 2009 elections the CDU or the CSU needed
less votes to get a seat in Parliament than SPD or FDP.
 So Germany is still discussing about a new voting system: Possible solutions are
 The whole of Germany is only one voting area – good result in one State are offset with the results in
other countries (CDU/CSU don´t want this solution – because they don´t want to make a list together
 Introducing compensatory seats (This system exist in the election systems of the German States, but under
certain circumstances Germany will have a very big Bundestag….
The system of election into the
Bundestag
 The problem of
„overhang-mandats”:
 One other solution would be the




introducing of a majority system like in
Great Britain
This already was planned during the “big
coalition” of CDU/CSU and SPD
between 1966-1969
The Grundgesetz is not against
introducing a majority system
Because of the “protection of minority”
until today Germany don´t want to
introduce it.
It would be the end for small parties, for
example for the liberal FDP