LÄNDER POWER-SHARING IN INTERNATIONAL RELATIONS AND EUROPEAN AFFAIRS

Treaty-Making Power

  Although one of the core features of federalism is that the conduct of international relations is basically and predominantly a matter for the federal level, numerous federal systems attribute partial powers in international relations to their constituent units, either through their constitutions or through non-constitutional practices developed between the national and sub-national levels. The German federal structure does so in both of these ways.

  Under Article 32 of the Basic Law the Länder have the right to be "consulted in sufficient time" before the federation concludes "a treaty affecting the special circumstances of a Land". Also, it stipulates that "in so far as the Länder have the power to legislate, they may, with the consent of the Federal Government, conclude treaties with foreign states" (Article 32/3). The wording of this latter provision allows room for two different interpretations of the question of treaty-making powers in the fields of exclusive competence of the Länder. On the one hand the Länder maintain that this power resides exclusively with them and that the transformation of obligations arising from such treaties into German law is thus also a matter of their exclusive competence. On the other, the federation insists that it has a concurrent competence in this field of treaty-making power, irrespective of the allocation of corresponding functions in the area of transformation. This difference of opinion has never been settled legally, but a mode of practice has been developed in a way typical of German federalism which allows both sides to hold their respective views without disturbing the conduct of business.

  The basis of this arrangement, laid down in the so-called Lindau Agreement of 1957, is the assumption by the Länder that the federation acts on their behalf when negotiating or signing foreign treaties which either partly or wholly regulate matters of their competence. In exchange for empowering the Federation to act on their behalf, the Länder have secured for themselves wide-ranging rights of participation which deny the Federation the right to sign such treaties without previously securing their unanimous consent. The central institution in the operation of that Agreement is the Permanent Treaty Commission of the Länder. Its function is to communicate demands of the Länder concerning draft treaties of the kind described above to the Federal Government and to co-ordinate their recommendations both within and between the Länder. The consent of all of them must be secured before obligations created by the treaty achieve validity under international law. The legislative process of ratification, beginning with the treaty being sent to the Bundesrat, does not normally start before the Federal Government has asked for the consent of the Länder to be given. International ratification by the depositing of the document of ratification under international law can, in any case, not be inaugurated unless and before all the Länder cabinets have conveyed their consent to the Federal Government on the basis of the recommendations of the Treaty Commission. If international treaties "touch upon the essential interests of the Länder" without necessarily being relevant to any of their exclusive competences, the Länder must also be informed "as early as possible about the proposed conclusion of such treaties so that they can voice their demands in due time". The conclusion of the respective treaty is, however, not dependent on unanimous Länder consent as in the case of exclusive Länder competencies being involved. Nevertheless, under the principle of federal comity the Federal Government is still obliged to take into account the opinion of the Länder and normally does so as far as it can in the course of negotiations.

Foreign Political Relations

  Outside the area of treaty-making, political representatives of the Länder have frequently regarded themselves as entitled to maintain informal relations, below the level of formal diplomacy, with foreign states. There is nothing in the Basic Law to bar them from doing so as long as the principle of federal comity is not disregarded, meaning here in particular that any political guidelines set in foreign relations by the federation must not be counteracted by such contracts. In matters of foreign affairs concerning relations with political and/or administrative counterparts below the level of the national states, the Länder have always considered themselves free of constitutional restriction. Their right to communicate directly with foreign regions, provinces or autonomous communities was, indeed, confirmed in one of the first decisions of the Federal Constitutional Court.[9] In association with the "European Amendments" to the Basic Law enacted in 1992 (see below), they have now constitutionally obtained the power to transfer sovereign rights of their own to "transfrontier institutions in neighbouring regions" with the consent of the Federal Government (Article 24/1a).

Transfer of Sovereign Powers and European Decision-Making

  The question of transfers of sovereignty brings us to a peculiar feature of the German Constitution. Ever since 1949 the federation has had the competence to "transfer sovereign powers to international institutions", particularly to the European Community, under Article 24. This competence refers undisputedly to the transfer of both federal and Länder powers. This "power of interaction" increasingly came to be seen as "the open flank of the federal order", as it legitimised intrusions of European law areas of Länder competence. In order to guard this open flank, the Länder persistently sought and ultimately secured constitutional rights of participation in the exercise of the Federal Government's functions in the organs of the European Community, now the European Union, above all in the Council of Ministers. These rights are contained as the cornerstone of the "European Amendments" of 1992 in the new Article 23 of the Basic Law, which was enacted in connection with the ratification of the Maastricht Treaty. A fuller discussion of Article 23 and the institutional machinery surrounding it is given in Rudolf Hrbek's contribution to this volume. It is sufficient here to note that the main difference as compared with the field of treaty-making in bi-or multi-lateral international relations lies in the fact that in the field of participation in European decision-making the principle of majority-voting applies (as this participation is now fully integrated into Budesrat business) as compared to the unanimity required on the part of the Länder in the field of treaty-making.

JUDICIAL SAFEGUARDING OF THE FEDERAL SYSTEM

The "Eternity Clause"

  The federal structure of the German state is protected against (over-) dilution or even abolition by a constitutional provision which is considered to be the highest-ranking in the Basic Law: amendments to the Basic Law "affecting the division of the Federation into Länder" and "the participation on principle of the Länder in legislation" (as well as the principles of democracy and of human rights protection) are "inadmissible" under Article 79/3.

Federal Comity

  The second outstanding legal protection of the federal system is implied in the principle of federal comity or loyalty (Bundestreue). This refers to the basic obligation by which all components of the federation are bound together. The Federal Constitutional Court applied the principle in one of its earliest decisions[10] and thus made it a legal standard, obliging both the Federation and the Länder to conduct their affairs in a manner "friendly to the idea of federation" (bundesfreundliches Verhalten). The principle covers the entire fields not only of federal-Länder but also of Länder-Länder relations and it governs not only the substance but also the style of conduct. One of its constitutionally most relevant expressions was the dictum of the Court that "a federal state can exist only if the federation and the Länder in their relations to each other take into account that the standards under which they make use of formally existing competences are governed by mutual consideration". The effects of the principle are not, therefore, restricted to the legal sphere. In addition and, perhaps, even more so, they refer to political conduct in negotiations undertaken under the compulsion to arrive at solutions which do not violate or weaken the federal concept as such. The lines from here to the observance of subsidiarity as well as of solidarity ( "buÏndisches Einstehen fuÏreinander" in the terms of the German Constitional Court) would appear to be obvious. The fact that these lines are, nevertheless, always at risk of being disregarded does not make the principle as such redundant. On the contrary, it emphasises its necessity.

The Selection of Federal Judges

  The third and institutionally organised safeguard of federalism in Germany is embodied in the fact that the Länder, through the Bundestrat, have a strong share in the powers of appointment of federal justices. According to Article 94 of the Basic Law, half of the in total 16 justices of the Federal Constitutional Court art to be elected by the Bundestag "and half of the Bundesrat". The Federal Cabinet does not have a formal say in this although, however, informal political contacts concerning the selection process do, of course precede the plenary session in which the election (requiring a two-thirds majority) takes place whenever it is the Bundestrat's turn to fill a vacancy. A procedure similar to the selection of Constitutional Judges applies for the appointment of justices on the benches of all other Federal Courts. All are subject to selection by a Joint Committee equally composed of members of the Bundestag and representatives of the Länder (though for these positions two-thirds majorities in that Committee are not required as in the special proceedings governing the election in both chambers of Constitutional Justices).

THE NEED FOR REFORM TO GERMAN FEDERALISM

  As has been hinted throughout this introduction, German federalism is, like any other federal system, far from being perfect. Since 1949 several reform commissions have sat to discuss various aspects of the federal structure, particularly territorial and financial reform. The recommendations of the latest of them, the Joint Constitutional Commission of Bundestag and Bundestrat,[11] led to the Constitutional Reform Act of 27 October 1994, which impacted in part on the distribution of legislative competences and federal legislative procedure. The Commission also drafted the so-called European Amendments to the Basic Law in connection with the ratification of the Maastrict Treaty on European Union, which were briefly outlined above the subject of the Länder power-sharing in European affairs. The efforts of the Joint Constitutional Commission notwithstanding, there remain other areas in which the need—and the pressure—for reform to the federal system is considered by many observers to be great. These concerns, among others, territorial reform, the financial constitution and the continuing challenges of European integration. These, and other reform imperatives, are the subject of further discussion in a later chapter in this volume.[12] But the continuing reform imperative allows an interim conclusion, which is strongly borne out in the contributions in particular to the "Issues" section in this volume: there is no reason to acquiesce in the illusion that German federalism is as well protected in the future as the eternity clause in Article 79/3 of the Basic Law, safeguarding its against formal constitutional amendment, seems to promise.

It will have to go on meeting challenges from both within and outside its own constitutional and political environment just as much as any other federal system. German federalism's problem is that the sheer scale of the challenge posed by unification—both within Germany and at the European level—is rather greater than most other federal systems have had to, or are likely to, face. The question which remains is whether the institutional framework of German federalism set out here is capable of meeting and absorbing this unprecedented challenge.

The remainder of this collection seeks to provide some answers.

10   BVerfGE 1, 299 (315). Back

11   Report: Bundestage-Druchsache 12/6000 and Bundesrats-Drucksache 800/93, Bericht der Gemeinsamen Verfassungskommission (also edited as a brochure by Deutscher Bundestag, in Zur Sache No. 5/93). Back

12   Uwe Leonardy, "German Federalism Towards 2000: To Be Reformed of Deformed?", forthcoming in Jeffery (1998). Back