The Bundesrat’s constitutional status and significance derive primarily from its rights of co-decision in the case of consent bills. These bills can only come into being if the Bundesrat and Bundestag are in agreement. Should the Bundesrat take a definitive decision to reject a consent bill, the bill in question cannot be adopted.
The Basic Law stipulates explicitly and definitively which bills require Bundesrat consent. In essence this legislation can be divided into three groups:
- Bills amending the constitution.
In this case a two-thirds majority (46 votes) is required in the Bundesrat for approval of the bill (Article 79, Sub-section 2, Basic Law).
- Bills that impinge in a particular manner on the finances of the federal states.
On the revenue side, this category comprises all bills relating to taxes for which all or part of the revenue accrues to the federal states or local authorities (Article 105, Sub-section 3, Basic Law): examples include income tax, value-added tax, and trade 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 (Article 104a, Sub-section 4, Basic Law).
- Bills whose enforcement impinges on the organisational and administrative jurisdiction of the federal states.
The federal states are entitled to adopt their own federal state legislation, deviating from federation provisions on the establishment of authorities and on administrative procedures. Bundesrat consent is thus only necessary if a federal bill exceptionally regulates such matters without any scope for the federal states to deviate from these provisions, due to a particular need for uniform national regulation of such subject-matter (Article 84, Sub-section 1, Basic Law).
Taking decisions on consent bills
© Bundesrat | 2004
The underlying assumption in the Basic Law is that bills generally do not require Bundesrat consent. Bills that expressly require Bundesrat consent are stipulated clearly in the Basic Law. All bills that do not fall into one of the categories of subject-matter enumerated in these provisions are therefore classified as objection bills. The Bundesrat has less influence on this legislation than on consent bills. The Bundesrat may express its disagreement with a bill by entering an objection to the bill. The Bundesrat’s objection can be overturned by the Bundestag.
If the Bundesrat’s decision to enter an objection is adopted with an absolute majority (majority of members), the objection may only be overturned by an absolute majority in the Bundestag (majority of members = Chancellor’s majority). Two-thirds of the votes cast in the Bundestag or at least the votes of half of all members are required to overturn a Bundesrat objection that is submitted on the basis of a two-thirds majority in the Bundesrat.
Participating in addressing objektion bills
© Bundesrat | 2004
Splitting legislation and disputes on the consent status of bills
A bill may only be accepted or rejected in its entirety; it is not possible to reject just part of a bill. However, in some cases, if Bundesrat consent is actually only required for certain specific provisions, it is constitutionally admissible for the Bundestag to split a bill into separate pieces of legislation: a bill that requires Bundesrat consent and a bill that does not require Bundesrat consent. The Bundesrat can, if need be, submit an objection to the bill that does not require consent, although this objection can be overturned by the Bundestag. The Federal Constitutional Court has authorised division of bills in this manner at the legislator’s discretion. The Bundesrat takes the view that these discretionary powers should no longer apply if the subject-matter in question makes it essential for the provisions to be encompassed within one single piece of legislation.
If there is any dispute as to whether Bundesrat consent is necessary, in the first instance the Federal President decides when promulgating legislation whether a particular bill is a consent bill. However, a definitive, legally binding decision can only be taken by the Federal Constitutional Court.