A con­sti­tu­tion­al body with­in a fed­er­al sys­tem

Foto: Rednerpult im Plenarsaal

© Bundesrat

The division of power is the basic idea underlying Germany’s democratic and federal constitution.

As they go about fulfilling their respective remits, the Federation and the Länder work within a checks-and-balances system but also cooperate and show consideration for each other’s concerns. There is one important difference between the German form of federalism and other federative systems in the underlying structure of responsibilities and the practical implementation of this cooperation: the individual federal state governments participate directly in the decisions taken by the national state, i.e. the Federation. This is done through the Bundesrat.

The Bundesrat has three central functions within this system, which provides for division of power and combined fulfilment of the tasks incumbent on the state:

  • It defends the interests of the Länder vis-à-vis the Federation and, indirectly, vis-à-vis the European Union.
  • It ensures that the political and administrative experience of the Länder is incorporated in the Federation's legislation and administration and in European Union affairs.
  • Like the other constitutional organs of the Federation, the Bundesrat also bears its share of overall responsibility for the Federal Republic of Germany.

Federalism

The term "federalism" is derived from the Latin word "foedus", which can be translated as "alliance" and "contract". Federalism thus means the creation of a federal state and acting together within such a structure. This can occur through an alliance (federal state), or the union of several states (individual member states) to form one national state (federation) where the individual member states still retain the quality of states, at least to a certain extent.

In the Constitution, the essence of this fundamental principle is even declared to be inviolable and irrevocable. Article 79, Sub-section 3 of the Basic Law states:

Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

In 1949 the Parliamentary Council opted in favour of the federative principle as the basis for organising the state. There was a clear reason for this choice: in addition to the classical division of power between the legislative, the executive and the judiciary (horizontal division of power), federalism also implies a further division of political power between the federation and the federal states (vertical division). This dual division of power acts as an effective means to prevent any abuse of power.

Advantages and disadvantages of a federal state compared with a unitary state

Advantages of a federal state compared with a unitary state

Distribution of power

In a federation, the classical horizontal division of the powers of state (legislative - executive - judicial) is complemented by a vertical division of power between the state as a whole and the individual member states. Distribution of power ensures that there are checks and balances, helping to prevent abuse of power.

More democracy

Subdivision into smaller political units makes state action clearer and more comprehensible, which helps to foster active participation and co-determination. Furthermore, each citizen has two opportunities to exercise the most fundamental democratic right, namely the right to vote; in a federation, elections are held both for the national parliament and for the parliaments of the individual member states.

Leadership opportunities

Political parties have more opportunities to hold power and competition between parties is encouraged, as they can exercise political responsibility in the individual member states even if they are in the minority nationally. This gives parties an opportunity to test and prove their capacity for leadership by offering them a chance to demonstrate how they perform once elected.

Proximity to tasks

In a federation, public bodies are closer to regional problems than in a unitary state. There are no remote, forgotten provinces.

Citizen-oriented action

Citizens enjoy more rapid access to the public authorities. It is easier for them to contact politicians and the public authorities than in a unitary state with a remote and anonymous centre.

Competition

The states that make up a federation are always competing with one another, which gives them greater vitality. Exchange of experience fosters progress and helps to avoid undesirable developments at the national level.

Balance

Mutual control, reciprocal consideration and the need to seek compromises prevent or at least hamper extreme positions. Federalism has a balancing and thus a stabilising effect.

Diversity

When a country is divided into federal states or Länder, many economic, political and cultural centres develop. This provides a more favourable environment to preserve and develop specific regional, historical, economic and cultural features. This diversity can lead to more freedom.

Disadvantages of a federal state compared with a unitary state

Lack of uniformity

The federal states’ autonomy necessarily means there are differences between the states. Diversity is the opposite of uniformity. This can result in some difficulties, for instance, for school children if a family moves from one federal state to another.

Complicated

As decisions are taken in many different centres in the Federal Republic, and power is shared between the Federation and the Länder, it is essential that the various tiers of government co-operate and show consideration for each other. The various bodies that hold power exercise mutual oversight and function in a checks-and-balances system. This interweaving of responsibility is complex and sometimes hard for citizens to understand.

Time-consuming

The parliaments, governments and administrations in the Federation and the federal states have to wait for initiatives, decisions or consent from each other and engage in lengthy negotiations in order to arrive at joint solutions. This can be a time-consuming process.

Costly

Running individual parliaments, governments and administrations in the Federation and the Länder is considered, on the whole, to be more expensive than maintaining the corresponding bodies in a unitary state. It is debatable whether this is indeed a valid assumption, because Länder institutions could not simply be closed down in a unitary state, but would have to be replaced in some form. Federal institutions would certainly have to be expanded and mammoth centralised bodies might not ultimately prove to be cheaper.

The Bundesrat as the link between the Federation and the federal states

In addition to functioning as a counterweight to the Bundestag and the Federal Government, the Bundesrat also acts as a link between the Federation and the federal states. The Bundesrat represents both the state as a whole (the Federation) and the constituent federal states (the 16 Länder).

On one hand, the Bundesrat is the federative constitutional organ in the Federation through which the Länder as member states can play a direct part as the Federation develops its position in particular policy areas. As a result the Bundesrat ensures the federal states can participate, within the framework laid out in the constitution, in formulating the political objectives of the national state as a whole.

On the other hand, the Federation can draw on the political and administrative experience of the Länder through the Bundesrat. It also enables the Federation to extend the impact of policy measures to the territories of the federal states - with the Bundesrat’s consent, of course. This is done through bills, ordinances and general administrative provisions, as well as indirectly through European Union legislation.

The Bundesrat as the defender of the federal states' interests

In all states with a federal system of government a natural tension exists between the state as a whole and the constituent member states. The Federation and the federal states strive to assert their own position and to strengthen it as much as possible, and are always keen to make full use of their rights and perhaps also to acquire broader rights.

In this context the Bundestag and the Federal Government are the "central bodies", and the Basic Law establishes the Bundesrat as a "federal constitutional organ" functioning as a counterweight to these bodies. The Bundesrat’s key role is to defend the interests of the Länder at the central government level, but at the same time it must seek to ensure these are in keeping with the needs of the state as a whole.

In this sense the "interests of the federal states" means issues that in essence can only be handled in legislative terms through consent bills, in other words, bills where the Bundesrat holds an absolute right of veto:

  • Bills affecting the division of political tasks between the Federation and the federal states i.e. provisions pertaining to legislative, administrative and jurisdictional competence nationally and vis-à-vis the European Union.
  • The apportionment of tax revenue between the Federation and the federal states.
  • Stipulation of the administrative procedure to be applied by state authorities in enforcing federal laws.

Responsibility for federal policy

The Basic Law does not limit the Bundesrat to simply representing Länder interests.

Instead the Bundesrat shares responsibility for overall federal policy. This becomes clear if we consider that the Bundesrat also considers objection bills, in other words, precisely those bills that do not fundamentally affect the interests of the federal states. In addition, in the case of consent bills, the Bundesrat may refuse to agree to the specific provisions that mean the bill requires Bundesrat consent, but that is not all; the Bundesrat also has the right to scrutinise the bill in its entirety. This principle has been confirmed on a number of occasions by the Constitutional Court. It means the Bundesrat may also reject a bill as a response to provisions within this legislation for which its consent is not directly prescribed.

The Bundesrat's responsibility for the state as a whole is also manifested in its far-reaching right to receive information from the Federal Government, its involvement in determining a state of defence and its status as a "reserve of legality" in legislative emergencies. These functions demonstrate that the Bundesrat has a much wider role than merely protecting regional interests.

Glossary