Symposium: The Federal Council: The Secret to the Institutional Success of the German Federal System

Jens Woelk

University of Trento & EURAC Research Bolzano/Bozen

German “executive federalism”: an integrated system

German federalism is different from “dual” federal systems, such as the United States of America, characterised by parallel federal and state structures. By contrast, in Germany the federal administration is not fully developed: the Länder take care of the implementation of federal legislation as well as of their own in order to avoid costly and inefficient duplication. It is an integrated system. A parallel might be drawn with the European Union, a quasi-federal structure, determining legislation while the Member States are obliged to implement it.

The asymmetry in the principal functions makes permanent coordination and cooperation necessary between Federation and Länder, but also among the Länder. The pivotal role in this integrated system is exercised by the Federal Council (Bundesrat) which permits the procedural integration of the Länder through participation at federal level.

An “Ambassador” model: form follows function

Historical predecessors of the Bundesrat can be traced back to the confederal structures of the German Empire. In the democratic system of Weimar (1919) and after 1949, democratic legitimacy substituted monarchic representation: the former “House of Princes” being now composed of representatives of the elected Länder governments and bound by their instructions (known as the “Ambassador” model in contrast to the “Senate” model).

Its form – or institutional structure – follows its function. According to the German Basic Law (GG), “[t]he Länder shall participate through the Bundesrat in the legislation and administration of the Federation and in matters concerning the European Union” (art. 50 GG). This provision underlines the mixed nature and function – legislation and administration – of the body. It also reflects the main features of Germany’s federal system: its intergovernmental character and the structural asymmetry of functions exercised by the levels of government. While in quantitative and qualitative terms federal legislation is dominant in rule-making, the responsibility for policy implementation in most fields is and remains vested in the Länder; the latter do not only implement their own statutes, but also federal legislation as if it were their own, i.e. autonomously and with only minimal federal oversight. The resulting system is usually referred to as “administrative or executive federalism”.

Besides federal representation, the Bundesrat also embodies political representation (see Nathalie Behnke’s contribution to this symposium: “Consensual Governance – The German Governmental System”). In Germany, two constitutional bodies are involved in the legislative process at federal level: Bundestag or Parliament (Federal Diet) and Bundesrat (Federal Council). While only the former is a directly elected Parliament, and as such is an expression of the democratic principle, the latter is a peculiar institution representing the federal principle. Together, they combine the two fundamental principles on which the Federal Republic of Germany is built: the sovereignty of the people and the constituent states of the Federation. Functionally, the Federal Council is therefore part of the legislature at the federal level; despite its members being part of the executive of the German States (Länder). This construction links the federal level with the constituent units and gives their executives a say in the federal legislative process.

Functions in the legislative, administrative and European decision-making process

The Bundesrat is endowed with the right to initiate legislation. It always intervenes in the legislative process, with the degree of its participation depending on how much the adopted federal legislation interferes with the interests, administrative organisation and financial resources of the Länder. Two forms of participation are possible: opposition, which might be overcome by Parliament, and express consent, which – if denied – may transform into an effective veto.

A special bicameral body, the Committee for Conciliation, has the task of mediation and negotiation in case of disagreement between the two legislative bodies. Reflecting the balance between the democratic and the federal principle on a smaller scale, its 32 members are nominated in equal parts by the Bundestag and by the Bundesrat. All results of negotiations must be approved by the respective plenaries. Despite the relatively high number of cases in which it has been convened, the low number of failed conciliations and, consequently, of bills not adopted, shows the success of this institution.

Further, in several instances, regulations or by-laws adopted by the federal government can enter into force only if the Bundesrat has expressed its consent. This safeguard for the Länder administrations is a clear expression of the body’s mixed nature covering both, the legislative and administrative spheres.

The same logic can be found in Länder participation in EU affairs, also bundled through the Bundesrat: here, different degrees of participation in the decision-making process exist based on the degree of potential interference of a proposal with Länder interests, particularly their administrative structures and procedures. Thus, in some cases its opinions may even determine Germany’s position and bind the federal government in negotiations in the EU Council of Ministers (art. 23 GG). In order to further safeguard the participation of the Länder, treaty revisions have to respect the procedural and substantive limits of constitutional amendment. Preliminary subsidiarity-control is a new field opened by the Lisbon Treaty; also, the Bundesrat can express an opinion regarding respect for the principle of subsidiarity, before the legislative process at EU level begins. In case of particular urgency in EU matters, the Bundesrat might make use of its “European Chamber” composed of 16 members representing the 16 Länder governments. This body has some decision-making powers and can therefore fully substitute the Bundesrat in urgent matters, enabling timely expressions of opinion.

The Bundesrat also participates in the election of the members of other federal institutions. In particular, it elects eight judges of the Federal Constitutional Court (the other eight judges are elected by the federal Parliament).

The political dimension – between territorial and party interests

One major difference between the elected Parliament and the Bundesrat consists in its different relationship with the federal government. While the federal government depends on the political majority within the Bundestag, there is no such confidence-relationship with the Bundesrat.

In order for the Bundesrat to express an opinion, or to determine the position of the institution, a majority has to be reached. This makes alliances between the Länder necessary, which ideally (and often in practice) correspond to territorial interests (i.e. rich against poor, big against small, etc.); however, if important political questions are at stake, the political differences become more visible.

As a federal institution, the Bundesrat represents the community of the Länder. However, its main function is their integration into national politics, not the safeguard of their autonomy. The majority requirement does not allow for the representation of specific interests, but only for those of the Länder level as such. This is why the members are bound by an imperative mandate, subject to instructions from their governments, and why they have to express a unitary vote as a delegation. Votes are distributed in a weighted system. The number of votes for each Land varies from a minimum of three to a maximum of six, and depends on the number of its residents.

In general, Bundesrat decisions are passed by an absolute majority, i.e. with the majority of its members (35 out of 69 votes); at least half of its members have to be present. To approve constitutional amendments, a two-thirds majority is required (45 votes). The effect of this is that the four biggest Länder (Baden-Wuerttemberg, Bavaria, Lower Saxony and North-Rhine Westphalia) cannot band together to pass a decision on their own, nor can the smaller Länder muster a majority against the bigger Länder; the opposition of six Länder out of 16 may be enough to block the adoption of a bill. The votes can be cast by a single member, but the vote has to be uniform for each Land. Split votes are not admitted, and any attempt at a split vote will result in the annulment of the vote.

The members can be replaced by a deliberation of the respective government, which is the normal procedure after an election, when a new Land government is formed by different political parties. Consequently, this also changes the (political) majority within the Bundesrat. In fact, different majorities in Bundestag and Bundesrat make effective and rapid decision-making difficult. In case of a majority of Länder governed by opposition parties, the political opposition in the Bundestag will be tempted to use the Bundesrat as an instrument for blocking decisions of the federal government.

In fact, the influence of political parties in the Bundesrat has grown over time. Often in the last decades, the political majorities in both legislative bodies were different. In addition, increasing federal intervention has led to a rise in the adoption of statutes needing express consent by the Federal Council offering the political opposition opportunities to obstruct the federal government’s policies.

The proportional electoral system in combination with the emergence of new political parties since the 1980s, has led to coalition governments in the Länder (and at federal level) becoming standard (see Nathalie Behnke’s contribution to this symposium: “Consensual Governance – The German Governmental System”). Until the 1970s, there were only three political parties represented in the Parliaments; in recent years however this number has doubled, increasing the options for forming coalitions. As is the case in relation to central and controversial political questions, agreement is difficult to reach within a coalition. Due to the necessity of expressing a block vote in the Bundesrat; usually (political) coalition agreements at Länder level provide for abstention in case of no common position within the Land delegation.

In the late 1990s, the federal system (and the Bundesrat in particular) was accused of being responsible for a perceived crisis of the political system and the consequent “reform logjam” (Reformstau) (extremely slow decision-making processes with unclear political responsibilities), as well as a general incapacity to reform.

Based on the work of an ad hoc Joint Commission for the Modernisation of the Federal System, the Grand Coalition (a coalition between Christian Democrats and Social Democrats) formed after the federal elections in 2005, adopted constitutional amendments in the summer of 2006. The reform was aimed at the disentanglement of legislative powers (e.g. abolition of framework legislation) and at reducing the veto powers of the Bundesrat. The number of approvals of federal legislation is now estimated at 40%, compared to more than 60% before. As compensation for the loss of their participatory powers, the Länder received the right to derogate, on certain specific matters, from federal regulation of those matters. However, the strong unitary tendencies of the German system, the expectations of citizens and fundamental rights put strong limits on the effective use of autonomous legislative powers and the introduction of differentiated solutions among the Länder.

A German “Sonderweg”?

The peculiar composition of the Bundesrat reflects the specific institutional logic of German federalism, with a preponderance of government bureaucracies and intergovernmental relationships which has its origins in the formative period of German federalism and was renewed in the German Basic Law. The deeply rooted polycentric structure created an inherent and structural interdependence of federal and Länder bureaucracies, and contributed to intensive vertical and horizontal co-operation and co-ordination.

As noted above, the German Bundesrat is also involved in law-making at the federal level, thus it functionally corresponds to a second parliamentary chamber. Due to its different functions, the Bundesrat institutionally links the federal and the Länder levels of government in many ways. Combining the democratic and federal principles and balancing them with the influence of political parties, the Federal Council can be regarded as the pivotal institution for the whole federal system.

Jens Woelk is Associate Professor of Comparative Constitutional Law at the University of Trento School of Law and School of International Studies, and Vice-Head of the Institute for Comparative Federalism of Eurac Research in Bolzano/Bozen, Italy.

Suggested citation: Jens Woelk, “The Federal Council: The Secret to the Institutional Success of the German Federal System” IACL-AIDC Blog (8 October 2019), https://blog-iacl-aidc.org/70-years-of-the-german-basic-law/2019/10/8/the-federal-council-the-secret-to-the-institutional-success-of-the-german-federal-system