INTRODUCTION

  This paper's purpose is to pinpoint the central structural features of German "co-operative" federalism through which the Länder exercise their constitutional functions, including, in turn:

  —   the structure of the Bundesrat as an intergovernmental organ of the German Länder;

  —   the intricate system of federal-Länder and Länder-Länder intergovernmental relations which is partly anchored in the constitution itself, but is also supplemented by a variety of other institutional networks;

  —   the fact that the Länder, notwithstanding substantial losses of their legislative powers, have remained the main administrators both of their own and of federal and European law;

  —   a financial constitution which, though predominantly based on shared taxes, gives the Länder a strong bargaining position by requiring the Bundesrat's consent to most of the relevant legislation;

  —   the capacities of the Länder to engage in international relations and EU affairs;

  —   and the judicial safeguards which exist to ensure the continued existence and vitality of the federal system.

  In addressing these themes, the aim is to provide an initial orientation on the structural characteristics and problems and controversies which shape and define German federalism as it approaches the end of the first decade of the post-unification era.

THE GERMAN BUNDESRAT: FEDERALISM AS INTERGOVERNMENTALISM

Composition of the Bundesrat

  The German Bundesrat consists of those cabinet members of the 16 post-unification Länder delegated to it by the respective Länder governments (Article 51 of the Basic Law). It is the successor institution of the Permanent Imperial Diet (Immerwährender Reichstag) of 1663 (seated at Regensburg) which was composed of plenipotentiaries of the various principalities and imperial cities, and presided over by the Emperor or his representative, and which itself was preceded by non-permanent Reichstage of a similar kind throughout the Middle Ages. After its dissolution in 1806 this institution was succeeded first by the Federal Assembly (Bundestag) of the (in reality confederal) German Federation of 1815 and then (for the northern part of the country) by the Bundesrat of the North German Federation. This institution then evolved into the Bundesrat under the Imperial Constitution of 1871. It was chaired by the Chancellor of the German Empire who was appointed by the King of Prussia in his capacity of holding the "presidium" of the Empire. On the Empire's dissolution in 1918 and the creation of the Weimar Republic,[2] the Bundesrat became the Reichsrat in a more unitary form of federal state, until the Länder of which it was composed were dissolved by Hitler in 1934.

  Upon its re-establishment by the Basic Law in 1949, the present Bundesrat was thus the heir to a long line of similarly structured institutions, all marked by the fact that in varying degrees and with varying powers they directly effected elements of intergovernmental co-ordination and co-operation in the constitution.

  In the Bundesrat of today, as in all of its predecessors, the Länder are not represented equally in terms of voting strength. Instead (and as a result of the compromise between the "Senate" and "Bundesrat" models in the Parliamentary Council which drafted the Basic law) each Land with less than two million inhabitants has three votes, those with from two to six million inhabitants have four, those with more than six million inhabitants five and (following unification in 1990) those with more than seven million inhabitants have six votes. Though this unproportional attribution of votes under Article 51 of the Basic Law is open to criticism—as are the results of all historical compromises—the principle that all the votes of each Land must be cast uniformly and cannot be split has never been in dispute in the Federal Republic.

  Equally, there has never been any attempt to change the Basic law's stipulation that members of the Bundesrat cannot at the same tine be members of the Federal Government and that the Bundesrat cannot be dissolved by the Federal Government. Inherent in this status as an "eternal" organ is that the Federal Government is not responsible to the Bundesrat, is not, consequently subject to any Bundesrat vote of no-confidence, and is, therefore, constitutionally not dependent on its support. This, however, by no means makes the Bundesrat a powerless institution, as the remainder of this chapter shows.

  The central characteristic feature to be emphasised at this point is the fact that the Bundesrat not only embodies the intergovernmentalism of the federal system, but that to a large extent it is also responsible for the efficient management and co-ordination of many of the wide-ranging institutional interdependencies arising from the intergovernmental structure. The co-ordinating function is performed in the field of legislation mainly is its various select committees, in which (unlike the plenary) the Länder each have one vote[3] and whose results regarding each piece of legislation have to be carefully correlated with one another once the plenary session (in any third week) approaches.

  External observers sometimes raise the accusation that this legislative process does not comply with democratic standards. This does not hold up to scrutiny. First, all of the governments representing their Länder in the Bundesrat derive their own legitimacy from the election of the Land legislatures to which they are responsible. Secondly, they are also subject to the constant control of these Landtage regarding their political and voting behaviour in the Bundesrat at the national level. Moreover, the fact that the party-political structures of the Landtage (in particular their opposition parties) are not reproduced in the composition of the Bundesrat has a well-balanced constitutional philosophy behind it. This boils down to the obvious comparative observation that the more directly one bases the composition of the second chamber on the same foundations as that of the first—i.e., the elective principle—the more one will have competition, friction and deadlock between the two, because each of them can claim the same basis of legitimacy. In federal states such deadlock situations invariably tend to weaken not only the second chamber, but also the entire federal structure. The explanation for this is an obvious one: in such situations the party headquarters at national level will naturally first of all attempt to "tame" the party's representatives in the (elected) second chamber in order to make way for what they interpret to be the national interest from the viewpoint of the centre, rather than give way to an interpretation of the national interest arising from the sum-total of regional interests.

  In the political and academic discussion on bicameralism, as reflected for example in the (neverending) debate in Great Britain on House of Lords reform, it has been said that second chambers are either "strong" or they are "useful". Bearing in mind that this debate is conducted in a country with a strong tradition of centralisation (even though this is now changing), it may not seem surprising that this observation neglects to add that in federal systems second chambers should be both "useful" and "strong" or else they will be useless. At least on the basis of German experience, it can be rightly maintained that federal second chambers will be both stronger and more useful the more their principles of composition differ from those of the first. In other words: the more clearly and visibly the second chamber represents the federal principle as distinct from the democratic principle represented in the first, the "stronger" and more "useful" for the entire structure it will be. Recognising that federalism in practice is to a considerable extent identical to intergovernmentalism, any second chamber which openly reflects this empirical and constitutional fact will thus be both a "strong" and a "useful" one.

Bundesrat and Federal Government

  Similar considerations apply to the separation of membership in the national cabinet from that in the second chamber: If a member of the second chamber can at the same time also be part of the national executive, and if he or she is simultaneously also dependent in that capacity on the confidence of his or her own chamber, conflicts between the loyalty owed to both the national and the regional level are unavoidable. At the same time, the presence of a government team among the members of the second chamber will inevitably lead to the effect that the "whips" are also applied in that chamber whenever government interests are at stake. Such interests are likely, however, to collide in many instances with genuine regional interests and will tend to undermine the function of the second chamber. This is an experience the Federal Republic has largely avoided given that the Bundestag, as the directly elected chamber, is the only institution representing the democratic principle directly vis-aÁ-vis the national executive, both in terms of accountability and cabinet affiliation. This does not mean that non-members of the Bundestag cannot be appointed as members of the Federal Government, but it does mean that members of the Bundesrat cannot for precisely these reasons.

  The partial detachment of the democratic from the federal principle in the Bundesrat does not mean, however, that party politics are irrelevant in relations between the Bundesrat and the Bundestag, let alone the Federal Government. There are of course organisational and other links between the parties in power in the Bundestag and their political equivalents in the various Länder governments on the one side, and the Bundestag opposition parties and their party colleagues in Länder government on the other. Conflict between the two chambers also tends to be more frequent if their respective party majorities differ. Even in such conflicts, though, the Bundesrat can normally only justify "opposition" to the Federal Government on a specific piece of legislation by proving that it is basing its objections on either legitimate regional interests or on a different evaluation from the Länder perspective of the legal or administrative merits of the provisions concerned.

THE THREE LEVELS SYSTEM OF INTERGOVERNMENTAL RELATIONS

  While the Bundesrat mainly embodies intergovernmentalism on the regional level, the practical operation of the federal system as a whole also requires that intergovernmental relations are conducted between all levels of government. This means that the Bundesrat, though the only intergovernmental organ embedded in the Basic Law, is not the only intergovernmental organ in German political practice.

  Any attempt to pinpoint and categorise the components of the entire network of intergovernmental institutions, while necessary for the purpose of explanation, is a hazardous undertaking, because these components are all more or less always in communication with each other and are also often linked with each other by organisational mechanisms. Bearing in mind these limitation, three levels, or areas of relationships may be discerned:

  —   Firstly, there is the level of what is termed the "Whole State" (Gesamtstaat) i.e., the level which comprises institutions in which both the federation and its component parts, the Länder, are represented on terms of equal status. This arrangement of equal status allows no room for majority decision-making. All decisions in this sphere must consequently be arrived at by accommodation and compromise, or must be limited by "agreement to disagree". In addition, decisions taken in this sphere may also require approval in the federal or the Länder legislatures.

  —   Secondly, there is the level of the "Federal State" (Bundesstaat) i.e., the constitutionally organised structure of interrelationships between the federation and Länder institutions, whose decisions are subject to majority voting rules. The subject-matter of all such decisions must be located within the field of federal competence, or must be subject to federal procedures (as in the case of the "Joint Tasks" in which federal participation takes place in areas of competence originally exercised by the Länder, and in which the federation and the Länder co-operate by virtue of specific agreements).

  —   Thirdly, there is the level of horizontal co-ordination between the Länder themselves (i.e., excluding the federation) which in a strict sense is not part of the fields of relations between the federation and the Länder, but without which neither the decisions of the "Federal State" nor those of the "Whole State" could be properly prepared. On this level, the agendas can consist both of federal and Länder matters. In both fields, decisions must be unanimous and they may also require approval in either the federal or the Länder legislatures. This area is commonly known as the "Third Level".

  It would go far beyond the limits of this chapter to describe in detail all the intergovernmental networks encapsulated in these three groups, so the following merely seeks to identify the central institutions working within each of them.[4]

The "Whole State"

  At the level of the "Whole State", the highest institution is the Conference of the Heads of Governments of the Federation and the Länder. These are Conferences held between the Federal Chancellor and the Minister-Presidents/Governing Mayors of the Länder in a more or less regular sequence of roughly every four months. Their legal basis is set out in the Standing Orders of the Federal Government.[5] They are preceded and prepared by Conferences of the Head of the Chancellor's Office with his colleagues in the Cabinet Offices of the Länder.

  In addition, a second sub-group of co-ordinative institutions comprises the top-level machineries of the political parties, among them in particular the institutionalised Conferences of Party Leaders in the Bundestag and the Länder Legislatures, which are partly assisted by permanent staffs. Also, the party executive committees or presidiums at the federal level, assisted by the party headquarters, play a prominent role in the handling of Federation-Länder business.

  The third sub-group of institutions in the field of the "Whole State" is concerned more specifically with inter-parliamentary co-ordination. It is represented in the Conference of Parliamentary Presidents of the Federation and the Länder and its more frequently convened nucleus, the Conference of Presidents of Länder Legislatures. Its meetings are also prepared by senior officials, the clerks or "directors" of the parliaments.

The "Federal State"

  At the level of the "Federal State" the Bundesrat is, of course, at the centre of the structure. As pointed out already, all of its plenary business is prepared by a system of numerous, highly efficient select committees, which sit every third week and submit their recommendations to the plenary session which follows two weeks after the end of the committee week. The preparation of their meetings, minute-taking and the drafting of their recommendations to the plenary are the main tasks of the Secretariat of the Bundesrat. This is headed by a Director, who assists the President of the Bundesrat in preparing for and presiding over the plenary session held on every third Friday.

  The Permanent Advisory Council, composed of the Plenipotentiaries of the Länder, formally advises the President. However, as he rarely ever participates in the weekly meetings of the Council (being preoccupied by his primary function as a Minister-President or one of the Mayors of the City-States) the Council in practice manages the political business of the Bundesrat together with the Director. It also has the important function of receiving regular information on Federal Cabinet meetings conveyed to it by the Minister of State in the Chancellor's Office in charge of the relations between the Federation and the Länder.

  In cases of conflict between the Bundesrat and the Bundestag, the Committee of Mediation comes into play.

This constitutional organ (Article 77/2 of the Basic Law) consists of 16 representatives of the Bundesrat (one for each of the Länder) and the same number of members of the Bundestag. In order to make compromise possible on its recommendations, its Bundesrat members (all of cabinet rank) are not subject to instructions from their Länder Cabinets as they are in the Bundesrat itself. To ensure the passage of the compromises worked out by the Committee, it also has the power to rule in its recommendations that the Bundestag and Bundesrat can only vote on the whole package of recommendations and thus cannot reject specific parts of the compromise package.[6]

  Within this network of bodies in and around the Bundesrat, the Missions of the Länder to the Federation act, in effect, as the "spiders in the web" for their respective Länder, and in this respect they can justifiably be termed as the nucleus of the working relationships between the Federation and the Lander. In most cases their civil servants staff the Bundesrat committees for their respective Land. In addition, the Missions also serve as the overall liaison institutions between Land and federal ministries and between each other. Furthermore, they report back to their Land capitals on all important or otherwise specifically relevant political and committee business in the Bundestag. For this purpose their civil servants have the constitutionally guaranteed right to access to all Bundestag plenary sessions and committee meetings (Article 43 of the Basic law).

The "Third Level"

  On the "Third Level" of horizontal co-operation among the Länder themselves, the Conference of Minister-Presidents is the highest ranking of the institutions. It meets formally once a year, but convenes in practice almost monthly and always before the Conferences of the Länder Heads of Government with the Chancellor. The chair alternates between the Länder and the Conferences are prepared by meetings of the Heads of the Länder Cabinets Offices.

  One step below this level are the conferences of equivalent ministries from different Länder whose departmental responsibilities cover the same area of policy (e.g., interior affairs, justice and so on). These are staffed and prepared partly by the Bundesrat committee secretariats and partly (as e.g., in the case of the Conference of Ministers of Housing) by organisational units of their own which may be attached to one of the Missions of the Länder. The Permanent Conference of Ministers of Education and Science is assisted by a secretariat of its own outside the Bundesrat structure and its surrounding institutions.

The Main Functions of the Three Levels

  This then is, very roughly sketched, the institutional structure of intergovernmental relations in the three levels of the German federal system. The functions of these three levels are, in summary:

  —   mutual consultation and co-operation in all fields, but in particular in overlapping fields of competence on the level of the "Whole State";

  —   co-ordination and preparation of voting (and ultimately the casting of votes) on legislation on the level of the "Federal State" and;

  —   co-ordination not just in the preparation of legislation but also (and sometimes primarily) on matters of administration on the "Third Level".

  In evaluating these functions, the traditional categories of "vertical and horizontal" intergovernmental relations are inadequate for an accurate description of the German system. Rather, the analogy of a triangle would be more appropriate. A vertical line from the apex of the triangle to the base-line would depict the "Whole State", the triangle as a whole the "Federal State", and the horizontal base-line the co-ordination between the Länder on the "Third Level".

2   Gesetz, betreffend die Verfassung des Deutschen Reichs (BGB1. Des Deutschen Bundes, No. 16, p. 63), reprinted in Heinrich Triepel, Quellensammlung zum Deutschen Reichsstaatsrecht, Leipzig, Hirschfeld (1901); Verfassung des Deutschen Reichs, RGBI. 1919, p. 1388; reprinted and commented on in Gerhard Anschutz, Die Verfassung des Deutschen Reichs, 8th edition, Berlin, Verlag Georg Stilke (1928). Back

3   § 42 of the Standing Orders (Rules of Procedure) of the Bundesrat; text in: Bundesrat (ed.), Handbuch des Bundesrates 1997-98, Bonn (1997), 106 et seq. Back

4   A fuller account of these networks is given in Uwe Leonardy, "The Working Relationships between Bund and Länder in the Federal Republic of Germany", in C Jeffery, P Savigear (eds), Germany Federalism Today, Leicester University Press, Leicester (1991). Back

5   § 31. Back

6   Standing Orders of the Committee of Mediation; in: Handbuch des Bundesrates (see note 6), pp. 154 et seq. Back