1. Position on government draft legislation
The Federal Government introduces the great majority of bills in Germany. The Bundesrat has the "first say" in the parliamentary processing of executive bills, as the Basis Law states that the Federal Government is required to submit its drafts directly to the Bundesrat for comment.
The Bundesrat is entitled to present its opinion within a six-week deadline and in specific cases it has three or nine weeks to comment. The Bundesrat makes use of this right in almost all cases. The review and discussion of legislative proposals submitted by the Government are two of the Bundesrat's primary functions. The experience of the federal states in the implementation of laws, almost all of which are implemented by them, is incorporated into federal legislation in this "first reading". In this context, the executive officials of the state governments conduct an intensive dialogue with the executive officials of the Federation. The Bundesrat's checks-and-balance function in the federal system of government is clearly manifested here.
In its committees the Bundesrat assesses bills from every possible standpoint, i.e. in terms of constitutionality, technical expertise, finances and political factors. Quite often, amendments, additions or alternatives are proposed. In many cases the result of the review is "no objection". It rarely happens that a bill that has been totally rejected by the Bundesrat is still submitted to the Bundestag by the Federal Government.
At this stage the Bundesrat's assessment of a bill is not binding on the Federal Government or the Bundestag. However, this initial assessment is an important indication as to what the second assessment and the Bundesrat's final word will be in the "second reading". These assessments cannot be ignored. The Federal Government formulates its view in a "counter-statement". The bill, the Bundesrat's initial statement and the Government's counter-statement are then submitted to the Bundestag.
2. Convening the Mediation Committee
All bills adopted by the Bundestag must be forwarded to the Bundesrat by the President of the Bundestag.
In the second "reading" initiated by the forwarding of the bill, Bundesrat committee meetings are held to determine whether or not the results of the first "review" have been taken into account and whether or not the Bundestag has introduced other amendments. If the Bundesrat decision is based on a Bundesrat draft bill, there is only this "second reading", although the term is then of course a misnomer. If the Bundesrat is not in agreement with the version of a bill passed by the Bundestag, it can approach the Mediation Committee within a period of three weeks. In its submission to the Committee, which must be adopted in the plenary with an absolute majority, the Bundesrat normally includes specific proposals for amendment, along with comprehensive justification.
3. Decisions on consent bills
Consent bills, which have a special bearing on Länder interests, cannot become law unless the Bundesrat gives its express approval.
If the Bundesrat votes definitively against a consent bill it cannot become law. The Bundestag cannot override the Bundesrat's rejection. The Bundestag and the Federal Government may merely apply to the Mediation Committee in an attempt to reach a compromise. This means that for consent bills the Bundestag and the Bundesrat must be in agreement before legislation can be enacted. Specific clauses in the Basic Law stipulate which bills require Bundesrat consent. These can be divided into three categories:
- Bills that amend the constitution. They require Bundesrat approval based on a two-thirds majority.
- Bills affecting the Länder's budgetary revenue. These primarily include bills relating to taxes in which Länder or local authorities are involved, e.g. income tax, value-added tax and motor-vehicle tax.
- Bills that affect the administrative jurisdiction of the Länder.
The last group is particularly important in quantitative terms, because, even if a bill contains only one provision that affects the administrative jurisdiction of the Länder, the entire bill has to be approved by the Bundesrat. This holds, for example, when federal law prescribes certain jurisdictional arrangements, forms, time limits, administrative fees, types of document delivery or new authorities and public agencies for Länder authorities. Due to these individual clauses, even bills that do not affect "Länder interests" in general, such as international agreements or defence issues, may have to be approved in their entirety.
The constitutional rank and importance of the Bundesrat mainly stem from its ability to veto this type of legislation. This right gives the Bundesrat a great deal of influence on the legislative process, as in practice about one half of federal legislation consists of "consent bills" requiring Bundesrat approval. Thus, for fifty per cent of bills, the Bundestag cannot legislate on its own, but must consider the Bundesrat's position in its decisions. Conversely the Bundesrat cannot act on its own in this sphere either - particularly as voting "No" simply prevents new developments but does not allow the Bundesrat to play an active part in shaping policy in a particular area.
4. Involvement in objection bills
The Bundesrat is also involved in the legislative process for bills where its consent is not required. These are known as objection bills.
Here the Bundesrat's role is limited to forcefully admonishing the Bundestag. If the Bundesrat files an objection within two weeks of the conclusion of mediation proceedings, the Bundestag must subject the bill to another reading. If the Bundestag does not share the Bundesrat's reservations, it can override the objection (adopted with an absolute majority in the Bundesrat) with an absolute majority of its own (known as the chancellor's majority). If the Bundesrat's objection was based on a two-thirds majority, a corresponding two-thirds majority of votes cast in the Bundestag is required to override it (this majority must also represent a majority of the Bundestag's members). If the objection is overridden, the bill in question may be signed and promulgated despite the Bundesrat's disapproval. However if the Bundestag cannot muster the majority needed to reject the objection: the bill cannot be adopted, as is also the case if the Bundesrat refuses to approve a consent bill.
5. Bundesrat draft legislation
The Bundesrat has the right to introduce bills into the Bundestag.
The bills are sent to the Federal Government for comment. The Federal Government is required to forward the bill within six weeks - in special cases, within three or nine weeks - to the Bundestag.
The Bundestag handles these bills according to the same procedure as draft bills from the Federal Government or draft legislation drawn up in the Bundestag itself. The Bundestag is free to decide as it sees fits and can therefore also refuse to adopt the draft. If the Bundestag rejects the bills, it is not possible to convene the Mediation Committee in an attempt to reach a settlement. The Bundesrat adopts relatively few legislative initiatives, partly perhaps because the overall procedure does not work in the Bundesrat's favour. However the Bundesrat has been successful in introducing initiatives to improve legal, customer and consumer protection. For example, the Bundesrat initiated legislation on: the purchaser's right of revocation for hire-purchase transactions, the ban on choice of forum agreements, the mandatory form requirement for purchase of real estate to protect the buyer and more stringent state monitoring of old people's homes to protect residents there. The Bundesrat also initiated measures to combat abuse of asylum law and to combat organised crime, and has made proposals on provision to cover the financial risks associated with the need for long-term nursing care.
The number of draft bills initiated by the Bundesrat has increased over the last few years. The parliamentary tool of resolutions is used increasingly frequently as a political complement to the right of initiative. These requests are generally addressed to the Federal Government to draw its attention to problems that have not yet been adequately resolved.
6. Statutory instruments
The German Highway Code, which affects almost everyone in the country, was adopted not by the Bundestag but by the Federal Minister of Transport with the Bundesrat's consent. It is an example of federal "administration", with Bundesrat participation.
Statutory instruments are generally binding provisions to implement bills. Bundesrat consent is prescribed for most statutory instruments issued by the Federal Government and individual Federal ministers. The Bundesrat is kept very busy examining this legislation, with the Bundestag being involved only in very exceptional cases. Most of the work is done in the committees. In the public plenary sessions these provisions, which are generally of limited political significance, take up less time. The Bundesrat's right of consent means that it can determine the content of statutory instruments on an equal footing with the other bodies involved. In practice consent is often granted "subject to the proviso" that certain points must be amended. It is not possible to convene the Mediation Committee to address conflicts concerning statutory instruments.
7. Consent to general administrative provisions
Just like statutory instruments, numerous general administrative proposals depend on Bundesrat consent if these provisions, addressed to the administrative authorities, affect the competences of the federal states.
For example, Bundesrat consent was required for the "Fines Schedule" for traffic offences and the "Points Schedule" for suspension of driving licences.
8. Deliberations on European Union legislation
As the process of integration in the European Union continues, national legislation is increasingly being influenced by regulations approved in Brussels. The relevant decision-making body is the Council of Ministers, in which each EU Member State is represented by a government member.
Pursuant to Article 23, Subsection 2 of the Basic Law, the Bundestag and the Länder (through the Bundesrat) participate in affairs of the European Union. For this reason, the Federal Government is charged with providing the Bundestag and the Bundesrat with comprehensive information on all European Union activities at the earliest possible date.
The Bundesrat, represented in urgent cases by the Chamber of European Affairs, gives its opinion on the drafts of European Union regulations and directives submitted to it. This assessment entails comprehensive deliberations in its committees. If this European legislation affects matters which fall within the internal jurisdiction of the Federation, the Federal Government must give "due consideration" to the Bundesrat's opinion in its decisions in Brussels. If such legislation primarily affects state (Länder) legislative jurisdiction, the structure of Länder authorities or their administrative procedures, then the Bundesrat's assessment must be taken into account as "the decisive opinion". In other words, in such cases the Bundesrat basically has the last word in determining the German position within the EU Council of Ministers. In this context, the Bundesrat is charged with "complying with the Federation's responsibility as a nation". This refers to jurisdiction in the policy areas of integration, foreign affairs and security. If the Bundesrat's opinion conflicts with that of the Federal Government, and if no agreement can be reached, then the Bundesrat's opinion is decisive, provided it is based on a decision taken with a two-thirds majority. The Bundesrat has a limited right to take the final decision on issues that could lead to increased expenditure or decreased revenue for the Federation. In such cases the Federal Government's consent to the German position as defined by the Bundesrat is required. If EU legislation mainly affects exclusive state legislative jurisdiction, a Land minister nominated by the Bundesrat should even be head of the German delegation and cast its votes in the Council of Ministers in Brussels. The Bundesrat is thus not only involved in shaping policy within Germany but also takes direct decisions with a view to protecting the Federal Republic of Germany's rights as a European Union member state.
9. Participation in foreign affairs
Pursuant to Article 32, Sub-section 1 of the Basic Law, the Federation is responsible for maintaining international relations with other countries. This provision does not assign this responsibility to any particular constitutional body; thus it excludes neither the Bundesrat nor the Bundestag as relevant federal organs.
Nevertheless, the Basic Law views foreign policy as a key area of the Federal Government's activities, in which it is empowered to take far-reaching decisions, even on fundamental matters that may concern the state's continued existence, independently of the legislative bodies. However, in accordance with Article 59, Sub-section 2 of the Basic Law, international treaties that regulate the Federation's relations with other nations or relate to matters of federal legislation require the "consent or participation of the appropriate legislative bodies in the form of a federal law".
In terms of the Bundesrat's rights, this means that a treaty law (a so-called "ratification law") requires Bundesrat consent when the adoption of a domestic law with similar content would, according to the Basic Law, likewise require the consent of the Bundesrat. If the Bundesrat denies approval of such an international agreement, the agreement cannot come into force. For example, the evolution of the European Communities into the European Union, through the Treaty of Maastricht, required the Bundesrat's approval. Other types of agreements subject to the Bundesrat's approval include agreements on emergency aid, official and legal assistance, tax laws, pension laws, protection of capital investments and environmental protection. If the Basic Law does not require Bundesrat consent for national implementation of the content of an international treaty, the treaty law must still be forwarded to the Bundesrat, but here the Bundesrat only has a right of objection (in the second "reading"). In such cases, the Bundestag can override the Bundesrat's objections, thus opening the way for treaty ratification. The Bundesrat's involvement in foreign affairs is also expressed in the Bundesrat's contacts with other countries through its committees, the Bundesrat President and individual members and in particular through official visits by delegations.
10. Right to be informed by the Federal Government
Article 53, third sentence of the Basic Law stipulates that the Bundesrat "shall be kept informed by the Federal Government with regard to the conduct of its affairs".
This obligation to provide information applies to all government business, and thus encompasses not only draft legislation and administrative projects but also, for example, information concerning the general political situation, foreign and defence policy. The Federal Government must provide this information to the Bundesrat of its own accord, promptly and in full on an ongoing basis. Furthermore, the Bundesrat also has a right to "summon" any member of the Federal Government to its plenary and committee meetings and to put questions to them. The members of the Federal Government are conversely also entitled to attend all meetings of the Bundesrat and its committees and have the right to speak at any time in these meetings. However, the Bundesrat only rarely makes use of its formal right to question members of the government in its plenary sessions. The Bundesrat does not use the Bundestag's system of what are known as major and minor interpellations, nor is there an explicit "Question Time" in the Bundesrat.
11. Other functions
The Basic Law assigns numerous other tasks and competences to the Bundesrat.
For example, the Bundestag and the Bundesrat each elect half of the members of the Federal Constitutional Court (Supreme Court). A two-thirds majority is required for these elections. The Bundesrat can also lodge complaints of unconstitutionality and can testify in cases before the Federal Constitutional Court. The Bundesrat also appoints representatives to the governing board of the Federal Employment Office and to various other public bodies. The Bundesrat has the right to propose the candidates for numerous public offices, or its consent is required for such appointments. Candidates for the posts of Federal Public Prosecutor, in both the Federal Supreme Court and other courts, and the Presidents of the Land Central Banks may only be proposed to the Federal President with Bundesrat consent.
The Federal Minister of Finance must give the Bundestag and Bundesrat an annual account of revenues and expenditure, so that the Federal Government can be "discharged".
Should the Federal Chancellor no longer enjoy the confidence of the Bundestag, without the Bundestag however being dissolved, the Federal Government may enact bills with the consent of the Bundesrat via a rather complicated procedure. In this kind of legislative emergency, as described in Article 81 of the Basic Law, the Bundesrat is a "reserve of legality" for the Bundestag, which would otherwise be unable to act.
The Bundesrat also fulfils a checks-and-balances function when it comes to the provisions enumerated in the Basic Law on federal monitoring of the states, internal emergencies and natural catastrophes. The Bundestag may only determine that there is an external emergency, i.e. the state of defence, with Bundesrat consent. In that case the special provisions on the state of defence apply, as provided for in the Basic Law in Articles 115 a to 115 k.