The sixteen federal states participate through the Bundesrat in the Federation’s legislation and administration, as stipulated in the Basic Law. This also applies to European Union (EU) affairs. Before entering into force in Germany, EU Directives and Regulations first go through the parliamentary legislative process in the Bundesrat and the Bundestag.
Representation of the federal states in Germany
Each federal state in Germany is represented in the Bundesrat by members of its federal state government. The President of the Bundesrat is elected each year on 1st November from the ranks of the federal states’ heads of government.
As a function of their population size, each of the sixteen federal states delegates between three and six members to the Bundesrat. In total, the Bundesrat has 69 full members and thus 69 votes. The Basic Law requires each federal state to cast all its votes as one uniform vote to express the position agreed upon by the federal state as a whole.
As stated in Article 50 of the Basic Law, the Bundesrat must always be involved in discussing legislation that is to apply in Germany. That also holds true for transposition of EU provisions into national law. This ensures that the federal states’ interests are taken into account in German legislation.
The Basic Law stipulates the mechanisms for Bundesrat participation in the legislative process. A distinction is drawn between objection bills and consent bills, depending on the policy areas addressed in the legislation. Objection bills make up around 60% of all legislation adopted; the Bundesrat may lodge an objection to these bills but it can be overruled by the Bundestag. Consent bills (around 40% of all legislation) include, for example, bills that amend the constitution or impinge on the federal states’ finances and administration. Bundesrat consent is required for bills in this category.
Participation rights at European level
The right to participate at the European level is based primarily on Article 23, Basic Law, which places the Bundesrat and the Bundestag on an equal footing in addressing EU-related issues.
One important instrument in this participation is information provided by the Federal Government. It must inform the Bundesrat “comprehensively and at the earliest possible time” about all draft EU legislation that affects the interests of the federal states. In addition, the government must also inform the Bundesrat of its own initiatives or any statements it has made to European Union bodies and provide the relevant documentation to the Bundesrat.
Responding to draft European Union legislation
The Bundesrat is also actively involved in determining the German negotiating position when the federal states’ interests are affected by draft legislation. In determining its negotiating position, the Federal Government must give due consideration to the Bundesrat’s opinion when addressing legislative proposals that concern both the Federal Government’s legislative competence and the federal states’ interests.
If draft legislation affects the federal states’ legislative powers, the establishment of federal state authorities or their administrative procedures, the Federal Government will consider the Bundesrat’s views to constitute “the decisive opinion”. In this case, if there is any disagreement when determining the German negotiating stance, the Bundesrat’s position will ultimately hold sway. In addition, the Bundesrat can also submit its opinions directly to the European Commission.
The Bundesrat may also delegate representatives of the federal states to take part in negotiations between the Federal Government and the Council or the European Commission in policy areas where the federal states are competent at national level or if their interests are affected. If draft legislation falls within a policy area where the federal states hold exclusive legislative competence (for example, education or culture), the Bundesrat appoints a representative of the federal states to lead negotiations.
Scrutiny of subsidiarity
The subsidiarity principle is an important instrument in parliamentary oversight of the EU institutions. As stated in the Lisbon Treaty, national parliaments and parliamentary chambers are responsible for monitoring compliance with the subsidiarity principle. That principle stipulates that in policy areas where the European Union shares legislative competence with national parliaments, the European Union may only adopt legislation if the objectives pursued cannot be adequately achieved by the Member States acting nationally or at regional or local level.
If the Bundestag or Bundesrat concludes that the objectives pursued by proposed EU legislation could be achieved equally well or even better by national, regional or local institutions, they can submit a reasoned opinion (either independently or jointly) on non-compliance with the subsidiarity principle. This is a safeguard mechanism at the start of the legislative procedure.
The Bundesrat’s Committee on European Union Questions
The Committee on European Union Questions is the lead committee for examination of all draft legislation from the Council of the European Union and the European Commission that is relevant to the federal states. In its work, the Bundesrat’s EU Committee also draws on recommendations from the Bundesrat’s fifteen other specialist committees.
In the light of policy on the European Union and European integration, the Committee on European Union Questions examines issues such as whether draft legislation proposed by the European Commission complies with the subsidiarity principle and how much weight the Federal Government must accord to the Bundesrat’s opinion when determining its negotiating stance on specific legislative proposals.
The Chamber for European Affairs
The Chamber for European Affairs plays a special role, in a sense functioning as a “mini Bundesrat” that deals with urgent issues related to the European Union. The Basic Law states that decisions taken by the Chamber for European Affairs are considered to be Bundesrat decisions.
Each federal state has the same number of votes in the Chamber as in the plenary session, but sends only one representative to each meeting. The Chamber for European Affairs may meet at short notice outside the regular plenary session schedule and a written procedure may also be used to adopt a position without convening a meeting. This ensures that the Bundesrat can take decisions quickly, especially in response to urgent proposals from the European Union, as was recently the case with EU measures to mitigate the economic and social consequences of the coronavirus pandemic.
The Bundesrat also participates in the EU’s numerous interparliamentary bodies, which bring together members from national parliaments, second chambers and the European Parliament.
It is also a founding member of the Association of European Senates, which currently comprises sixteen second chambers of national parliaments. The Association primarily aims to foster relations between its members and to promote the bicameral system in parliamentary democracy.