Venice Commission - Report on Bicameralism

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Germany

1.Has the country always had a bicameral parliamentary (or congressional) system? If not, from when did the country adopt a bicameral system? Is there a public debate about keeping bicameralism or moving to a unicameral system? Why? What are the terms of the debate? What is the public perception of the usefulness and acceptability (legitimacy) of the second chamber?

All German constitutions since 1871 (Constitution of the German Empire of 1871; Weimar Constitution 1919, Basic Law 1949) were based on a bicameral parliamentary system. This was due to the specific history and the long-term formation of a Bund (Federation) out of different sovereign States. During the period of national socialism (1933-1945) the bicameral system still existed on paper as the Weimar Constitution was never formally repealed. Yet, in practice it was a unitary system. The Länder were degraded to administrative units. With the "Enabling Act" of March 1933, the second chamber, the “Reichsrat”, lost its importance, as laws could also be enacted by the Reich government alone. On 13 February 1934, the Reichsrat was dissolved. In the Basic Law bicameralism was restored and considered to be an essential element of German constitutionalism not even changeable by constitutional reform. Therefore, there is no debate about moving to a unicameral system. The public perception is that bicameralism is decisive for vertical separation of powers. What is criticized is the potential of the Bundesrat to block legislative acts and to be an instrument of party politics.

2.What is the population of the country? What is its size?

Population in 2023: 84,3 million, 357.000 km²

3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed

Germany is a federal State with a parliamentary system, where the federal legislative power is vested in the Bundestag, the parliament of Germany (Article 77 subsection 1 Basic Law) and the Bundesrat (Article 50 Basic Law), the representative body of the Länder. The Parliament elects the Chancellor. The highest representative of the country, the President (“Bundespräsident”) is elected by the Bundesversammlung, a special assembly composed of the members of Parliament and an equal number of members elected by the parliaments of the Länder (Article 54 subsection 3 Basic Law). The President has mostly representative functions and can only step in when the election of the chancellor fails and it is necessary to decide about having a minority government or dissolving the Bundestag.The general principles of the political system (republic, democracy, federalism, social State, rule of law) are enshrined in Article 20 and 28 Basic Law.

4.How many members are in the lower house?

The Bundestag is supposed to have 598 seats (§ 1 subsection 1 BWahlG). However, the current 20th Bundestag consists of 736 members and the previous 19th Bundestag had 709 members. The continuously growing number of members is caused by Germany’s electoral system allowing to have “overhang mandates” (“Überhangmandate”). However, the current parliament has passed a law in March 2023 aiming at reforming Germany’s electoral system and reducing the number of members to 630.

5.How many members has the second chamber?

The second chamber, the Bundesrat, has 69 members. The number of representatives of each Land depends on the respective number of inhabitants. Each Land has at least three, Länder with more than two million inhabitants have four, Länder with more than six million inhabitants have five and Länder with more than seven million inhabitants have six members (Article 51 subsection 2 Basic Law). The number of representatives allocated to each Land is a compromise between the principle of equality of the Länder and the representativeness of the Bundesrat, i.e. the necessity to take into account the different number of inhabitants (0,57 million in Bremen, 17,93 million in Nordrhein-Westfalen). The small difference between three and six representatives shows that the principle of equality of the Länder is considered to be more important than representativeness.

6.How are members of the second chamber selected? Please describe: a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber? b) territorial or other criteria; i) region/provinces/municipalities/others; ii) professional categories/ethnic/age/other; c) candidates’ independence from/affiliation with political parties; d) in case of indirect election, is there an imperative mandate or a similar practice?

A member of the Bundesrat has to be a member of the government of the respective Land (Article 51 subsection 1 Basic Law). Who is considered to be a member of the Land government, depends on the law of the respective Land. The head and ministers of the government of a Land, as well as the mayor and the senators of the city states (Bremen, Hamburg, and Berlin) count as members of government. In some Länder (Bavaria, Saxony, and Baden-Wuerttemberg) state secretaries and councils of states also qualify as members of government. There are no “general elections to the Bundesrat” and no electoral terms. Instead, the Bundesrat is a permanent body whose membership changes as a consequence of the elections at the level of the Land. Since voters determine the composition of the parliaments in their Land (and, as a consequence, the composition of the governments), they indirectly determine who will have a seat in the Bundesrat. Membership of the Bundesrat is based on a decision by the government of the Land in question. The membership ends automatically when a member is no longer in the government of the Land or when the government decides to recall the member. There are no other requirements for the election of the members of the Bundesrat.

7.Age. What is the age limit to elect and be elected or appointed to the second chamber? Does it coincide with the lower chamber? Are there other requirements for election than those for members of lower chambers?

There is no age limit to become a member of the second chamber. Concerning the Bundestag, the lower chamber of Parliament, the Constitution (Article 38 subsection 2 Basic Law) does not provide a specific age limit either. Thus, every German citizen who is 18 years old can be elected.

8.Gender. Are there any requirements to achieve gender parity between men and women in the composition of the second chamber or is there any gender quota system? If so, is there a similar requirement or gender quota system for the lower chamber?

There are no gender requirements to achieve gender parity between women and men in the second chamber as well as in the lower chamber. Since currently only 34,8 % of all members in the Bundestag are women, there are debates about increasing the percentage of women in the Bundestag, but there is no consensus among the political parties in which way this aim could be achieved. Demands range from a quota system to soft law measures as voluntary obligations by political parties. In the Bundesrat, there are currently (April 2023) 43 men (62%) and 26 women (38%).

9.Term of office or tenure. Duration? Does it coincide with lower chamber? Does the second chamber follow the continuity rule (members are not replaced all at once, new elections concern only part of the chamber at a time)? Can the second chamber be dissolved and if yes, who and how exercises its competences in the meantime? Please report any particularity.

The second chamber, the Bundesrat, is a permanent body. Thus, it follows the continuity rule. Its composition changes with every election in a Land (Landtagswahl). After every election in a Land the newly elected government appoints its representatives to the Bundesrat. As a consequence, the membership in the Bundesrat is based on the decisions of the governments of the Länder. If a member were to leave a government of a Land or that government decides to recall the member, the membership would end (Article 51subsection 1 Basic Law).

In contrast to the Bundestag, the Bundesrat cannot be dissolved.

In so far as the Bundestag is concerned, it does not have the right to dissolve itself but can be dissolved by the President in two scenarios: The election of the Federal Chancellor fails (Article 63 subsection 4 Basic law) or the vote of confidence fails (Article 68 Basic Law).

10.Congruence. Is it common for the second chamber to have a similar party composition (majority-minority) to that of the lower chamber?

The Bundesrat has the function of forming a counterweight to the Bundestag and to participate in the adoption of laws touching upon the interests of the Länder. Examples include the reduction of financial means to the Länder or regulations on the implementation of the laws which falls into the competence of the Länder. Due to the constant changing composition of the Bundesrat, as a rule, the party composition (majority-minority) differs in the Bundestag and in the Bundesrat.

For instance, during the coalition of the Social Democrats and the Liberal Democrats from 1969 to 1982, the Bundesrat consisted of a majority of Christian Democrats. They tried to block the laws the Social Democrats had voted for with their majority in the Bundestag. At that time, there were only three relevant political parties. In the last years, the political party landscape has been changing so that there is a variety of coalitions between different political parties, both on the level of the Länder and on the federal level. The coalition governments in the Länder can often not agree on how to vote in the Bundesrat. Since the representatives of one Land in the Bundesrat must vote en bloc for the Land, the coalition governments often agree to abstain in controversial questions. As the Bundesrat has to decide with the majority of all votes (currently 35 votes) according to Article 52 Section 3 Sentence 1 Basic Law an abstention counts as a negative vote. But still, laws are often blocked in the Bundesrat.

As only the Goverments of the Länder are represented in the Bundesrat and the Bundesrat does not mirror the composition of the parliaments of the Länder, those parties not involved in any government of the Länder are completely excluded from the work in the Bundesrat whereas they are represented in the Bundestag.

This results in a different party composition of the two bodies. While the right-wing party “AFD” for example has got 78 seats (10.6%) in the Bundestag, it is not represented in the Bundesrat at all.

11.Status. Are there differences between the legal status of members of the two chambers, and if so, what (e.g., immunity, conflict of interest)?

There are a few important differences between the legal status of the members of the two chambers. The members of the Bundesrat are not free how to vote, but have to cast their votes en bloc. Unlike the members of the Bundestag they do not have a “free mandate” because of their role as representatives of their Land; they are bound by instructions (Article 51 Subsection 3 Basic Law). Therefore, the provisions for the Bundesrat expressly differ between members of the Bundesrat (Article 51 subsection 1 sentence 1 Basic Law ) and their votes (Article 51 subsection 3 sentence 1 Basic Law ). Voting en bloc is significant for the Bundesrat since it decides with at least the majority of its votes (Article 51 subsection 3 sentence 1 Basic Law).

All Bundesrat members also have twofold roles: They are both members of the Bundesrat and hold an office in the government of the Land.

Members of the Bundestag, however, have a free mandate, meaning that they are independent (although there might be some form of “party discipline” in voting). They have specific status rights e.g. the right to form a parliamentary group. These rights are derived from Article 38 subsection 1 sentence 2 Basic Law.

Furthermore, they have the right to immunity and indemnity and the right of refusal to give evidence (Article 48 Basic Law), rights which are not accorded to the members of the Bundesrat as governmental representatives.

12.Rules of procedure. How are the rules governing the second chamber established? Are they different from the lower chamber’s and what are the most relevant differences? Are the internal regulations controlled by the constitutional judge?

The articles concerning the Bundesrat are articles 50-53 Basic Law; it is quite a concise regulation. Similar to the Bundestag, the Bundesrat meets monthly to public plenary sessions (Article 51 subsection 3 sentence 3 Basic Law) and organizes its works on the basis of committees.

The Bundesrat elects its president every year (Art. 52 subsection 1 Basic Law); the election takes place according to a fixed order determined by the number of inhabitants of the Länder. The President of the Bundesrat is responsible for convening the Bundesrat (Art. 52 subsection 2 Basic Law). The procedures concerning the Bundesrat are determined by the Geschäftsordnung des Bundesrates (GO BR) that the Bundesrat adopts itself (Art. 52 subsection 3 sentence 2 Basic Law).

The internal regulations can be controlled by the constitutional judge.

13.Powers/competences: Are the powers and competences the same in the two chambers (symmetrical bicameralism)? If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe: i) financial; ii) legislative; iii) oversight/control; iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc; v) interim powers (e. g. in case of dissolution of the first chamber). a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one; b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority? c) What kind of parliamentary initiative can the first and second chamber exercise? d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism); how many readings before the final decision? Does a mixed commission meet? e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first? f) Is the government responsible to the second chamber (when it is before the first one)? g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones? h) Does the second chamber have a specific role in emergency situations?

According to Article 50 Basic Law the Bundesrat participates in the legislative process, in the administration of the state and in matters concerning the European Union.

General remark: There are two types of laws, simple laws and “consent laws” (Zustimmungsgesetze). The latter touch upon the interests of the Länder. Therefore, the consent of the Bundesrat is a conditio sine qua non for their adoption. For other laws, the Bundesrat is involved, but can be outvoted. The details will be explained below.

i) financial

Laws on financial matters count as “Zustimmungsgesetze” (Articles 104a subsections 3 to Five, Article 106 subsections Three to Six and Article 107 subsection 1 Basic Law); the Bundesrat has to consent to them.

ii) legislative

The Bundesrat has to play an important role in the legislative process.

Firstly, the Bundesrat has the right to initiate new laws (Section 76 subsection 1 Basic law).

Secondly, the Bundesrat must participate in the legislative process, by either having a suspensory veto in the case of so called “Einspruchsgesetze”, which can be outvoted by the Bundestag, or by having an absolute veto by so called “Zustimmungsgesetze”.

The “Zustimmungsgesetze” are those law that necessarily require the consent of the Bundesrat. After the Bundestag passes a proposal for a law to the Bundesrat, it has three options: Consent to the bill, refuse consent or refuse consent and convene the Mediation Committee (“Vermittlungsausschuss”) according to Article 77 subsection 2 sentence 1 Basic Law. The Mediation Committee consists of 16 members of the Bundestag and 16 of the Bundesrat and has the function to facilitate finding compromises in the case of disagreements between the Bundestag and Bundesrat. If the Bundesrat simply refuses to consent, the Bundestag or a government of the Land can also call for the Mediation Committee according to Article 77 subsection 2 sentence 4 Basic Law. In practise, the Bundesrat is in a stronger position in the case of Zustimmungsgesetze since its consent is obligatory. Therefore, especially the Bundestag or the governments of the Länder will often be interested in involving the Mediation Committee, while the Bundesrat will not do it of its own motion.

The laws which count as “Zustimmungsgesetze” are expressly qualified as such in the Basic Law and can be found in various provisions in the Basic Law, while all other laws count as “Einspruchsgesetze”. With the years, the number of “Zustimmungsgesetze” has decreased, but the remaining “Zustimmungsgesetze” concern significant political areas, such as laws that change the constitution, laws that have an influence on the finances of the Länder and laws for where the implementation touches upon the organizational and administrative sovereignty of the Länder.

In the case of “Einspruchsgesetze” the Bundesrat can either do nothing, with the consequence that the law will come into force, or the Bundesrat can call the Mediation Committee within three weeks after the draft law has been presented to the Bundesrat (Article 77 subsection 2 sentence 1 Basic Law). Only after having called the Mediation Committee and under the condition that the Mediation Committee has not proposed an amendment, the Bundesrat can veto the law. (Article 77 Section 3 Sentence 1 Basic Law). This veto can, however, be outvoted by the Bundestag with the majority of the number of its members (Article 77 subsection 4 Sentence 1 Basic Law). If the Bundesrat vetoes the law in question with a two-third majority, the Bundestag must outvote the veto with a two-thirds majority (Article 77 subsection 4 sentence 2 Basic Law).

iii) oversight/control

The Bundesrat has no specific control rights. But it has the right to initiate specific procedures in front of the Bundesverfassungsgericht, especially procedures relevant for militant democracy (“wehrhafte Demokratie”) such as the forfeiture of basic rights (Article 18 Basic Law) or the procedure for prohibiting a political party (Article 21 Basic Law).

iv) other specific powers, in particular as regards constitutional reforms, confidence
motions, international treaties, etc.

The Bundesrat participates in matters concerning the European Union (Article 23 subsections 4-6 Basic Law). Details on the participation requirements are regulated in a specific law, “Gesetz über die Zusammenarbeit von Bund und Ländern in Angelegenheiten der Europäischen Union“(EUZBLG), which requires the consent of the Bundesrat (Article 23 subsection 7 Basic Law). This regulation was introduced as a consequence of Constitutional Court decisions demanding an involvement of the Länder in matters of the EU as otherwise federalism might become mute wherever decisions are made on the EU level. According to Article 52 subsection 3 a Basic Law for matters concerning the European Union the Bundesrat may establish a Chamber for European Affairs, whose decisions shall be considered decisions of the Bundesrat. For the time being, such a “Chamber for European Affairs” exists.

The Bundesrat also participates in the administration. First, it must consent to some delegated legislation (according to Article 80 subsection 2 Basic Law). The types of delegated legislation which require the consent of the Bundesrat are enlisted in Article 80 subsection 2 Basic Law. For instance, delegated legislation about the railroads of the Land, the postal service and telecommunication require the consent of the Bundesrat. This is necessary to create a parallelism between legislative regulations and regulations based on delegated legislation; the Bundesrat has to be involved in the same manner.
The consent requirement can, however, be excluded by law according to Article 80 subsection 2 Basic law.

Secondly, the Bundesrat must consent to some types of administrative regulations according to Articles 84 subsection 2, Article 85 subsection 2 sentence 1 Basic Law.

v) interim powers (e. g. in case of dissolution of the first chamber)

The Bundesrat is not involved in case of dissolution of the first chamber.

a) Distinguish issues which are not submitted at all to the second chamber/where the final
decision is taken by the first chamber/where the second chamber has a limited veto right
etc. Please address these questions the other way round if the second chamber has more
powers than the first one.

Concerning the so-called “Einspruchsgesetze”, the Bundesrat has limited power to prevent their adoption as described above. Its veto can be outvoted by the Bundestag.

b) Are there specific appointments that must be done solely by the second chamber? If so,
the appointment must be done by supermajority/qualified majority/simple majority/absolute majority?

According to Article 94 Subsection 1 Basic Law the Bundesrat elects half of the judges of the Constitutional Court. Further, the consent of the Bundesrat is needed for nominations for the broadcasting councils of Deutsche Welle and Deutschlandfunk as well as the advisory board at the Regulatory Authority for Telecommunications and Posts. Another important function is the consent to the nomination of the federal general prosecutor (Generalbundesanwalt) (§ 149 GVG – Judicial System Act).

c) What kind of parliamentary initiative can the first and second chamber exercise?

The Bundestag and Bundesrat as well as the federal government all have the right to propose draft laws (Article 76 subsection 1 Basic Law).

d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism): how many readings before the final decision? Does a mixed commission meet?

In case of a disagreement there is the possibility to request the “Vermittlungsausschuss” (Mediation Committee; for details see above).

e) To which chamber are draft laws and other drafts to be examined by Parliament or the
legislature submitted first?

It depends on who proposes the draft law (Article 76 subsection 1 Basic Law). Draft laws submitted by the federal government first have to be sent to the Bundesrat giving it the opportunity to comment (Article 76 subsection 2 sentence 1 Basic Law). When the Bundesrat proposes a draft law itself, it has to be forwarded to the Bundestag through the federal government which also gets the opportunity to comment (Article 76 subsection 3 sentence Basic Law).

f) Is the government responsible to the second chamber (when it is before the first one)?

No, the state government is only accountable to the Bundestag.

g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which
ones?

The relevant joint committee is the mediation committee “Vermittlungsauschuss” (Article 77 subsection 2 sentence 1 Basic Law). It can propose changes to draft laws, but not outside what has been debated in Parliament. It cannot make any decisions of its own.

h) Does the second chamber have a specific role in emergency situations?

In emergency situations, the Bundesrat, as well as the Bundestag, decide on the existence of a “state of defence” (“Verteidigungsfall”, Article 115a subsection 1 sentence 1 Basic Law) which results in an enlargement of the competences of the chancellor and the federal government. There are specific regulations as to the legislative process after the declaration of a state of defence where the Bundesrat remains involved.

Furthermore, according to Article 35 subsection 3 sentence 2 Basic Law the Bundesrat has specific control functions in case of a natural catastrophe or similar cases. If a natural disaster or accident endangers the territory of more than one Land, the Federal Government, insofar as is necessary to combat the danger, may instruct the Land governments to place police forces at the disposal of other Länder and may deploy units of the Federal Border Police or the Armed Forces to support the police. Yet, those measures taken by the Federal Government shall be rescinded at any time at the demand of the Bundesrat. The same mechanism functions in case of internal emergency (Article 91 subsection 2 sentence 2 Basic Law).

14.Is there a form of intergovernmental conference of regions in your country (conference of ministers or presidents of regions, Landers, states members of the federations)? Does it interact with the second chamber? How often does it meet? What is its specific relevance?

There is a so-called Ministerpräsidentenkonferenz (MPK). It is not a constitutional body, so its decisions are not binding and it is not involved in the legislative procedure. Its meetings occur four times per year and the chair changes once a year in October and is transferred to another Land.

There are also similar panels on the minister level: Agrarministerkonferenz (AMK), Arbeits- und Sozialministerkonferenz (ASMK), Bauministerkonferenz (ARGEBAU), Europaministerkonferenz (EMK), Finanzministerkonferenz (FMK), Gesundheitsministerkonferenz (GMK), Konferenz der Gleichstellungs- und Frauenminister der Länder (GFMK), Innenministerkonferenz (IMK), Integrationsministerkonferenz (IntMK), Jugend- und Familienministerkonferenz (JFMK), Justizministerkonferenz (JUMIKO), Kultusministerkonferenz (KMK), Raumentwicklungsministerkonferenz (RMK), Sportministerkonferenz (SMK), Umweltministerkonferenz (UMK), Verbraucherschutzministerkonferenz (VSMK), Verkehrsministerkonferenz (VMK), Wirtschaftsministerkonferenz (WMK). Those panels are not part of the legislative procedure either but are rather an expression of “cooperative federalism” and thus document the will of the Länder to cooperate.