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Published online by Cambridge University Press: 06 March 2019
Even experienced scholars will have to think for quite a while when asked to remember whether a similar situation has ever occurred: A tiny constitutional provision in the organisational part of the Grundgesetz (GG – Basic Law), not exactly neglected by learned writers but definitely never seen as a source of major problems, became the starting point of one of the most emotional outbursts German politics has ever experienced. The said provision, Article 51.3(2) of the Basic Law, dealing with the voting procedure in the Bundesrat innocently says that the votes of one Land's representatives “can” (“können”) be cast only unanimously. In order to understand the causes for the earthquake that struck the German political and constitutional system in the 774th session of the Bundesrat on 22 March 2002 it is essential to shed light on the structure and the constitutional role of the Bundesrat.
1 The translation of the German word “können” influences the understanding of the provision. In German the meaning of this word is ambiguous. It may express either a prohibition or an impossibility of differing votes. The majority of the judges and the dissenters were not unanimous in their characterization of the meaning of this word.Google Scholar
2 According to Article 51.2 of the Basic Law each Land has at least three votes in the Bundesrat. Laender with more than two million inhabitants have four, Laender with more than seven million inhabitants, six votes. Article 51.3 of the Basic Law says that each Land may delegate as many representatives as it has votes. All in all there are 69 votes to be cast in the Bundesrat which means that 35 votes constitute a majority. The votes are distributed as follows: Baden-Württemberg (10.61 million inhabitants/6 votes); Bavaria 12.34/6; Berlin (3.39/4); Brandenburg (2.59/4); Bremen (0.66/3); Hamburg (1.73/3); Hesse (6.08/5); Mecklenburg-Western Pomerania (1.76/3); Lower Saxony 7.96/6); North Rhine-Westphalia (18.05/6); Rhineland-Palatinate (4.05/4); Saarland (1.07/3); Saxony 4.37/4); Saxony-Anhalt (2.57/4); Schleswig-Holstein (2.81/4); Thuringia (2.41/4); source: http://www.bundesrat.de/Englisch/Wissen/index.html.Google Scholar
3 The difference between Zustimmungsgesetze (acts to which the Bundesrat must also to agree) and Einspruchsgesetze (acts to which the Bundesrat may object, but which the Parliament may pass as an override) does not have any importance here. About that difference, see, Johannes Masing, in Das Bonner Grundgesetz Vol. 2, Art. 77 para. 47 et seq (Hermann v. Mangoldt / Friedrich Klein / Christian Starck eds., 4th ed.). About the difference these categories make for the legislative process, idem., Art. 78 para. 5 et. seq.Google Scholar
4 See, Scharpf, Fritz W., Optionen des Föderalismus in Deutschland und Europa, p. 65 et seq.; Fritz W. Scharpf, Die gefesselte Republik, Die Zeit 35/2002; Rudolf Wassermann, 2003 NJW p. 331.Google Scholar
5 BVerfGE 37, 363 (381). See also, Hans Peter Bull, in Alternativkommentar zum Grundgesetz Vol. 2, Art. 84 para. 26 (2nd ed. 1989); Peter Lerche, in Grundgesetz, Art. 84 para. 67 (Theodor Maunz / Günter Dürig et. alt.); Hans D. Jarras and Bodo Pieroth, Grundgesetz für die Bundesrepublik Deutschland, Art. 77 para. 4 (5th ed., 2000).Google Scholar
6 The question whether the Bundesrat is, in the perspective of the constitution, a second chamber of legislation is discussed by Korioth at Art. 51 para. 24. in v. Mangoldt / Klein / Starck, supra note 3.Google Scholar
7 The Social Democratic Party (SPD) and the party “Bündnis 90 / Die Grünen” lend their political colours for this denomination.Google Scholar
8 “Gesetz zur Steuerung und Begrenzung der Zuwanderung und zur Regelung des Aufenthalts und der Integration von Unionsbürgern und Ausländern” (Zuwanderungsgesetz); draft by the parliamentary parties of SPD und Buendnis 90/Die Grünen, 8t November 2001 (BT-Drcks. 14/7387; to be found under http://www.bundestag.de/).Google Scholar
9 See, Section 5.2.2 of this coalition agreement between the SPD and the CDU of Brandenburg (http://www.brandenburg.de/spd-fraktion/wir/koalitionsvertrag.htm (27 January 2003). But it has to be said that these contracts are of a political as opposed to a binding nature. Any violation does not have a legal effect on the violating act. See, Korioth at Art. 51 para. 24 in v. Mangoldt / Klein / Starck, supra note 3.Google Scholar
10 About the possibility that one of the representatives casts the votes for all representatives of one Land, see, the text infra at note 12.Google Scholar
11 Bauer, Hartmut, in Grundgesetz Vol. 2, Art. 51 para. 22 (Horst Dreier ed., 1999); Roman Herzog, in Handbuch des Staatsrechts Vol. II, § 46 para. 20 (Josef Isensee / Paul Kirchhof (2nd ed., 1998); Jürgen Jekewitz, in Alternativkommentar, Art. 51 para. 10, supra note 5; Korioth at Art. 51 para. 21, in v. Mangoldt / Klein / Starck, supra note 3; Theodor Maunz at Art. 51 para. 27, in Maunz / Dürig, supra note 5; Walter Krebs, in Grundgesetz-Kommentar Vol. 2, Art. 51 para. 13 (Ingo v. Münch / Phillip Kunig 5th ed., 2001); Jarras / Pieroth at Art. 51 para. 6, supra note 5; Gerhard Robbers, in GG, Art. 51 para. 15 (Michael Sachs ed., 3rd ed. 2003); Hans Schäfer, Der Bundesrat p. 53 (1955). Different opinions were developed by Das Bonner Grundgesetz Vol II., Art. 51 Note III 4 b (Hermann v. Mangoldt / Friedrich Klein eds., 2nd ed. 1966); Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland Vol. II, § 27 III 2 b (1980). Stern was followed by Dieter Blumenwitz, in Bonner Kommentar zum Grundgesetz, Art. 51 para. 26, 29 (Rudolf Dolzer / Klaus Vogel / Karin Graßhof eds., 1987).Google Scholar
12 It is essential to point out the fact that, though Minister/Prime Minister being the title for the capacity the acting persons have as a member of their Laender-government, in the sphere of the Bundesrat they all are “representatives” and not Ministers or Prime Ministers.Google Scholar
13 Protocol of the 774th session of the Bundesrat on 22 March 2002, p. 147 et seq. (to be found under http://www.parlamentsspiegel.de/).Google Scholar
14 See, Protocol (supra note 13), p. 171 et seq.Google Scholar
15 See, Section 29.1(2) of the standing order of the Bundesrat (German version http://www.bundesrat.de/Wissen/index.html). According to this provision one Land after the other is called to cast its vote.Google Scholar
16 In a seemingly similar situation in 1949, a Prime Minister (being also the President of the Bundesrat at that time) authoritatively decided about how “his Land” would vote after the representatives of that Land had not reached consensus. The other representatives remained silent and hereby seemed to agree to that decision of their Prime Minister. See, Protocol of the 10th session of the Bundesrat on 19 December 1949, p. 116.Google Scholar
17 About this competence of the Bundespraesident, see, Schlaich at § 49 para. 33 et seq, in Isensee / Kirchhof, supra note 11.Google Scholar
18 Decision of the Bundesverfassungsgericht (2 BvF 1/02), 18 December 2002 (www.bverfg.de). In the following text I refer to the decision by citing its paragraphs.Google Scholar
19 A few days after the conflict arose the first opinions were published in newspaper articles (Peter Lerche, Christian Pestalozza, Martin Morlok, in the Süddeutsche Zeitung, (25 March 2002)). The Frankfurter Allgemeine Zeitung of 25 March 2002 printed parts of the counselling opinion Josef Isensee had delivered to Minister Schoenbohm before the session of the Bundesrat about the constitutional implications of the coming situation. Apart from those articles dozens of interviews and readers’ opinions written by lawyers or non-lawyers were published in every German newspaper. Not surprisingly, the legal journals and their authors worked hard and quickly to publish articles about the constitutional question at the core of the conflict. It did not take long until a huge number of articles was published. See,e.g., Wolf-Rüdiger Schenke, 2002 NJW p. 1318; Carsten F. Soerensen, 2002 NJW Vol. 24, p. XII; Roland Fritz / Karl-Heinz Hohn, Ausländer- und Asylrecht (AuAS) – special edition on 19 April 2002; Claus-Peter Bienert, 2002 ThürVBl. p. 108; Florian Becker, 2002 NVwZ p. 569; Jörn Ipsen, 2002 DVBl. p. 653; Werner Hoppe, 2002 DVBl. p. 725; Dieter Dörr / Heinrich Wilms, 2002 ZRP p. 265; Rolf Gröschner, 2002 JZ p. 621; Albert v. Mutius / Jörg Pöße, 2002 LKV p. 345; Tobias Linke, 2002 Verwaltungsrundschau p. 229; Hartmut Bauer, 2002 RuP p. 70; Jürgen Jekewitz, 2002 RuP p. 83. The articles are compiled and commented in a book edited by the counsellor of the Federal Government. See, Abstimmungskonflikt im Bundesrat im Spiegel der Staatsrechtslehre (Hans Meyer ed., 2003). In this article I will cite the texts as they can be found in the book. After the deadline of the book the following articles were published: Rolf Lamprecht, 2002 NJW p. 2686; Peter Lerche, 2002 BayVBl p. 577; Christian Burkiczak, 2002 BayVBl p. 578; Thomas Starke, 2002 SächsVBl p. 232; Andreas Fischer-Lescano / Peter Spengler, 2002 KJ p. 337; Kerstin Odendahl, 2002 JuS p. 1049.Google Scholar
20 Para. 136 et seq. of the decision.Google Scholar
21 Para. 141 et seq. of the decision.Google Scholar
22 See, Gröschner at p. 84 (91) in Meyer, supra note 19.Google Scholar
23 Para. 136 of the decision. See, also, Herzog at § 46 para. 1, 3, supra note 11; Korioth, Art. 51 para. 2 in v. Mangoldt / Klein / Starck, supra note 3; Maunz at Art. 51 para. 5 in Maunz / Dürig supra note 5. A different approach is followed by Konrad Reuter, in Parlamentsrecht und Parlamentspraxis in der Bundesrepublik Deutschland, § 56 para. 5 (Hans-Peter Schneider / Wolfgang Zeh eds., 1989). He refers, inter alia, to the historical development of the Bundesrat.Google Scholar
24 See, e.g., Article 89.1 of the Brandenburg Constitution.Google Scholar
25 This does not mean that the directives would be invalid. But acting against the directive does not have any influence on the validity of the vote.Google Scholar
26 It mainly depends upon the constitutional law of the respective Land who has the authority to issue directives to the members of the Bundesrat and under which conditions. The Grundgesetz (GG – Basic Law) gives hints that it expects such a competence to exist on the level of the Laender, but it is not clear whether Federal Law demands the whole government to decide about such a question. See, Becker at p. 59 (62) in Meyer, supra note 19. Section 12 Abs. 1 lit. (d) of the standing order of the Government of Brandenburg (4 July 2000) says that decisions about how to vote in the Bundesrat have to be made by the whole government. But the government had not decided in that matter (See, Para. 144 of the decision). In any event, in subjects of eminent political importance (as is the case here, see, Schenke at p. 18 (27) in Meyer, supra note 19) the constitutional right of the Prime Minister to issue binding directives prevails (See, Article 89.1 of the Brandenburg Constitution).Google Scholar
27 See, Herzog at § 46 para. 2, supra note 11.Google Scholar
28 The concept of the voting leader has a long tradition (See, Gröschner at p. 84 (92) in Meyer, supra note 19).Google Scholar
29 But this is one of the main points the counsellor of the Federal Government in that case makes in his furious article commenting the literature published up to that point. Meyer at p. 146 (149 et seq.) in Meyer, supra note 19.Google Scholar
30 It becomes clear that the “ownership” of the votes does not necessarily predetermine the outcome of the constitutional question rooted in Article 51.3(2) of the Basic Law if one takes into account that one of the few writers claiming that the Laender should be considered members of the Bundesrat (Reuter, supra note 23) comes to the conclusion that the voting leader only announces the result of a previously formed consensus between the representatives of a Land (See, Reuter, Praxishandbuch Bundesrat, Art. 51 GG para. 62 (1991).Google Scholar
31 From what has been said before it should have become clear that it was not the Land Brandenburg but its representatives that did not vote unanimously. The discussion whether the votes belong to the Land or to the representatives is carried out by Meyer at p. 146 (149 et seq.) in Meyer, supra note 19. He claims the former and can point at several constitutional provisions that say “the votes of the Land“ (see p. 151). But these are reminiscences of an older Bundesrat-construction. See, the text infra at note 42.Google Scholar
32 Para. 143 et. seq. of the decision.Google Scholar
33 Para. 154 et seq. of the decision.Google Scholar
34 Para. 177 et seq. of the decision.Google Scholar
35 The misunderstanding, that it is the Land that has to cast its votes and not its representatives can be seen throughout the dissenting opinion. Hereby it becomes obvious that the dissenting opinion relies upon a highly questionable approach to the structure of the Bundesrat, saying that the majority denies the “right of the Land Brandenburg” to correct its dissenting vote from the first voting round (para. 155 of the decision). But if one talks of the Land, than there is only a short way to go to a reintroduction of hierarchical structures within the Land. And this is exactly what happens.Google Scholar
36 Para. 157 et seq. of the decision.Google Scholar
37 See, supra note 1.Google Scholar
38 Para. 158 of the decision.Google Scholar
39 Para. 158 of the decision. A similar case was constructed by Meyer at p. 146 (168 et seq.) in Meyer, supra note 19.Google Scholar
40 Para. 159 of the decision.Google Scholar
41 Article 6.2 of the Reichsverfassung 1870/71: “Every member of the Federation can send as many authorized persons to the Bundesrat as it has votes, but the whole of the votes can only be cast unanimously.”Google Scholar
42 Paul Laband, Das Staatsrecht des Deutschen Reiches Vol. I, p. 97 (5th ed., 1911).Google Scholar
43 See, Laband at p. 243, supra note 42.Google Scholar
44 All decisions come into force at the end of the session (See, § 32.1 of the standing orders of the Bundesrat). The dissenting judges show that in numerous cases the President of the Bundesrat has been asked to repeat a voting process. See, para. 164 of the decision.Google Scholar
45 Para. 169 of the decision.Google Scholar
46 Para. 145 of the decision.Google Scholar
47 See, Maunz, , Der Bundesrat als Verfassungsorgan und politische Kraft, in Bundesrat 193, 206 (1974).Google Scholar
48 According to Section 29.1(2) of the standing order of the Bundesrat the Land is to be called to cast its vote.Google Scholar
49 Para. 174 of the decision.Google Scholar
50 Para. 175 of the decision. Similarly, see, v. Mutius / Pöße at p. 96 (104) in Meyer, supra note 19.Google Scholar
51 This knowledge did not result from any background information, rumours or newspaper reading, as the dissenting judges imply, but from the clear and unequivocal announcement during the debate and from the “no” vote of the first voting round.Google Scholar
52 Para. 178 of the decision.Google Scholar
53 For the following, see, Becker at p. 59 (63 et seq.) in Meyer, supra note 19.Google Scholar
54 One has to assume that the conditions of Article 89.1 of the Brandenburg Constitution are met and that it does not matter that the Prime Minister deliberately violates the coalition agreement between the coalition parties, saying that in case of political dissent the representatives of the Bundesrat will abstain from voting (See, supra note 9). Furthermore, one has to assume that a directive (to vote “yes” or at least not to contradict someone else to do so) can be given implicitly by voting. This has to be doubted. See, Schenke at p. 18 (29) in Meyer, supra note 19.Google Scholar
55 See, Meyer at p. 146 (165 et seq.) in Meyer, supra note 19; supra note 26.Google Scholar
56 Apart from those scholars denying such a right to self execution in general (Norbert Achterberg at § 52 para. 20 in Isensee / Kirchhof, supra note 11; Martin Oldiges, Die Bundesregierung als Kollegium, p. 456 (1983); Schenke at p. 18 (24) in Meyer, supra note 19; Meinhard Schröder at Art. 65 para. 26) in v. Mangoldt / Klein / Starck, supra note 3. There are few making exceptions for those cases in which the Prime Minister would face serious parliamentary consequences for damage caused by a disobedient minister (See, Oldiges, ibid., p. 457). This cannot be assumed where the Prime Minister deliberately violates the contract between the parties supporting his government by issuing a directive.Google Scholar
57 Para. 168 et seq. of the decision.Google Scholar
58 Para. 178 et seq. of the decision.Google Scholar
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