Pursuant to Article 23(2) of the Basic Law, the Bundestag, like the Bundesrat, participates in matters concerning the European Union (EU). The parliamentary participatory rights of the Bundestag are governed by the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union, also known as the Cooperation Act, and in the Act on the Exercise by the Bundestag and by the Bundesrat of their Responsibility for Integration in Matters concerning the European Union, also known by the shorter title Responsibility for Integration Act. The Bundestag exercises its rights of participation and oversight with regard to measures for the stabilisation of the euro on the basis of the European Stabilisation Mechanism Financing Act (ESM Financing Act).
Participation in federal decision-making and responsibility for integration
Section 1(1) of the Cooperation Act specifies that the Bundestag is to participate in the decision-making processes of the Federation in matters concerning the EU. Active parliamentary monitoring of government activity serves on the one hand to lend sufficient democratic legitimcy to decision-making processes in the EU framework. On the other hand, it serves to offset the loss of sovereign competence resulting from the conferral of powers on the EU. The Bundestag also oversees the Federal Government in its actions within the European Union. In the past, the Federal Constitutional Court has repeatedly emphasised the special responsibility of the Bundestag in EU matters. According to the Court’s rulings, the Bundestag must permanently exercise responsibility in a sustainable manner for the development of European integration.
Notification rights of the Bundestag in matters concerning the EU
So that the Bundestag can exercise its rights of participation and scrutiny and discharge its responsibility for integration, the Federal Government must notify it comprehensively, as early as possible, continuously and, as a rule, in writing of matters concerning the European Union (Article 23(2) of the Basic Law, taken in conjunction with section 3 of the Cooperation Act). In particular, the notification covers the Federal Government’s decision-making process and the preparation and course of discussions within the EU institutions. The Bundestag must be informed in sufficiently good time to form an opinion on the subject matter of forthcoming meetings and on the position of the Federal Government and to be able to influence the negotiating line and voting decisions of the Federal Government. Moreover, the Federal Government must keep the Bundestag continuously updated on additional European plans and deliberations during the course of the discussions.
Right of the Bundestag to deliver an opinion to the Federal Government
One of the key instruments of parliamentary participation in matters concerning the EU is the right of the Bundestag to deliver an opinion under Article 23(2) and (3) of the Basic Law, taken in conjunction with section 8 of the Cooperation Act. This right enables Parliament to exert political influence on the position to be adopted by the Federal Government in the Council. If the Bundestag delivers an opinion, the Federal Government must use that opinion as a basis for its negotiations in the EU framework. It must keep the Bundestag continuously informed about the progress of the negotiations and especially about the consideration given to its opinion.
If the Bundestag has adopted a parliamentary opinion on a legislative act of the EU, such as a draft directive or regulation, the Federal Government must make this clear to the governments of the other EU Member States in the Council and, where possible, obtain a postponement of the decision if one of the main interests expressed in the opinion cannot be asserted (requirement of prior parliamentary approval). The Federal Government must inform the Bundestag thereof without delay and try to reach agreement with the Bundestag before the Council takes its final decision. The Federal Government may, however, diverge from the Bundestag opinion for good reasons of foreign or integration policy and approve the motion in the Council. Following the adoption of the Council decision, the Federal Government notifies the Bundestag in writing without delay of the adoption or non-adoption of the proposals set out in the parliamentary opinion.
Participatory rights under the Responsibility for Integration Act
The Responsibility for Integration Act, adopted in September 2009, prescribes that certain amendments to the contractual foundations of the EU and extensions to its spheres of competence require the prior approval of the Bundestag and Bundesrat. If EU decision-making procedures are changed, for example if unanimity is replaced by majority decisions in particular areas, the Bundestag may express its opposition direct to the European Council. In the subsequent EU deliberations on the matter, the Federal Government cannot approve a proposal or abstain from voting on it unless the Bundestag and Bundesrat have previously adopted a law to that effect.
Parliamentary rights with regard to subsidiarity and proportionality checks
Under the subsidiarity principle, the EU can only act if the goals it pursues cannot be satisfactorily achieved by Member States but can only be achieved, or can be better achieved, at Union level. Under Protocol No 2 to the Treaty of Lisbon, national parliaments have the right, within eight weeks from the date of transmission of a draft legislative act, to present a reasoned opinion stating why they consider that the draft in question does not comply with the principles of subsidiarity and proprtionality (subsidiarity complaint). If a certain fraction of the national parliaments express reservations about the consistency of the draft with the subsidiarity principle, the European Commission must review the proposal and indicate what it intends to do next, giving reasons. After a legislative act of the EU has entered into force, national parliaments may bring a subsidiarity infringement action before the European Court of Justice.
The parliaments of all Member States, including the Bundestag, participate in the online platform IPEX (Interparliamentary EU Information Exchange), which was set up to enable national parliaments to exchange information among themselves and with the European Parliament on the presentation of opinions and the lodging of subsidiarity complaints.
Other participatory rights and options of the Bundestag in matters concerning the EU
Over and above the aforementioned participatory options, the Bundestag also takes part in measures designed to stabilise the euro and in reviews of such measures in accordance with the provisions of the ESM Financing Act. It may also present an opinion direct to the European Commission at any time on EU matters and engage in discussions on its positions with the European Parliament and with the parliaments of the other Member States.
Other opportunities for parliamentary participation in matters concerning the EU include talks held by Members of the Bundestag with European Commissioners or with other representatives of EU institutions in the framework of committee meetings or delegation trips to Brussels, parliamentary interpellations and plenary debates relating to European politics and various other formal and informal consultation and fact-finding processes, such as colloquia, hearings and coordination processes between parliamentary groups and their sister parties in the European Parliament.