voting procedures in the bundesrat
TRANSCRIPT
VOTING PROCEDURES IN THE BUNDESRAT«Immigration Act (Zuwanderungsgesetz) case»
A cura di:Dottori Arianna, La Posta Eleonora, Decimo Georgia e
Pantusa Anna Lisa
OUTLINE
The Bundesrat and its voting rules
Casus BelliConstitutional Court’s
decisionDissenting opinionsConclusion
POLITICS OF GERMANY
The permanent consitutional bodies of the federal system:
Bundestag, Bundesrat, the federal President, the federal Government and the federal consitutional Court
BUNDESRATComposition: Art.51(1) BL «The Bundesrat shall consist of
members of the Land governments, which appoint and recall them. Other members of those governments may serve as alternates».
Functions: Art.50 BL «The Länder shall participate
through the Bundesrat in the legislation and administration of the Federation and in matters concerning the European Union».
Distribution of votes: Art.51(2) BL «Each Land shall have at least
three votes[…]»
BUNDESRAT
MembersOnly cabinet members
from the Federal StatesDual functionThe mandateSpeaking rights in the
Bundestag incompatibility
The President and the PresidiumAnnual rotationBudget
VOTING RULES IN THE BUNDESRAT Each federal state casts its votes EN
BLOC art.51(3) «Each Land may appoint as many members as it has votes. The votes of each Land may be cast only as a unit and only by Members present or their alternates.» (principle of uniform vote casting)
The vote-caster (the“Stimmfuhrer” -voting leader- of a Land casts a vote -block vote-)
Instructions from the government in the Federal State
Absolute majority art. 52(3) Voting: Show of hands
WHAT HAPPENED?
In 2002 the Bundestag accepted the draft of the Immigration Act proposed by the Federal Government
The legislative decision was then forwarded to the Bundesrat for consent
LAND OF BRANDENBURG
The Land of Brandenburg was at time governed by a “grand” coalition: SPD + CDU
Coalition agreement: in order to ensure the uniformity of the vote, any controversy between Land rapresentatives about how to vote in the Bundesrat would result in an abstention
ONE LAND, TWO DIFFERENT POSITIONS
Manfred Stolpe (SPD) was Brandenburg Prime Minister in the Bundersrat and also holder of the block vote. He was in favour of the Act
Minister, Jörg Schönbohm (CDU) made it clear that he would vote “no”
THE 774° BUNDESRAT SESSION
Interior Minister Schönbohm voted against the Act
The President invoking art. 51.3(2) GG declared that Brandenburg had not voted unanimouslySo asked the Stimmfuhrer (Stolpe) how the Land would vote
Brandenburg Prime Minister Stolpe voted “yes”
The President, taking the vote of Prime Minister Stolpe as the consensus vote of Brandenburg, declared that the Land had cast an affirmative vote
FINAL RESULT
With Brandenburg’s “yes” Immigration Act was approved by the Bundesrat with the absolute majority
The president’s decision was harshly criticized by other Länder and considered as unconstitutional, so that the case was brought up to the Federal Constitutional Court
HOW DID THE CASE GET TO THE FEDERAL CONSTITUTIONAL COURT?Six Lander took the question (was the act passed
in accordance with the formal provisions of the Constitution?) to the Federal Constitutional Court
Challenge to article 51.3 of the Basic Law Main Features and organization of the Court:
16 judges elected by the two Federal legislative
bodies (Bundestag and Bundesrat) two Senate composed by 8 judges
WHAT DID THE COURT DECIDE?The court delivered its decision on 18 December
2002Decision: the Act had been passed in a way that
was formally incompatible with the ConstitutionDecision taken by the Second Senate of the Court
by majorityPrevious case on 19.12.1949: the vote of a Land
was not cast uniformly. This case was not examined in court at the time. This case actually would have favoured the coming about of the Immigration Act
THE COURT’S ARGUMENTS
Main argument: the votes of Brandenburg were invalid because of the disagreement between the representatives. This disagreement had not been overcome in the course of the following events. As a result, there had not been the sufficient number of “yes” votes necessary to pass the act.
Two steps of the Court
THE REASONING OF THE DISSENTING JUDGES (I)
Das Staatsrecht des Deutschen Reiches (Laband, 19th century): the German Lander themselves, not the authorized persons they send to this organ, are members of the Bundesrat unanimity of the votes as a theoretical necessityVoting rounds:I. The Land had not yet cast its voteII. The Land is entitled to correct its conduct, as all
decisions come into force at the end of the session (para. 31.1 Standing orders of the Bundesrat)
THE REASONING OF THE DISSENTING JUDGES (II)
Art. 51.3(2) GG• The votes can only be cast as a block vote legal
impossibility for disputed votes• Physical attandance of any voting representative
If any violation of both provisions occur, the votes do not exist from a legal point of view
THE REASONING OF THE DISSENTING JUDGES (III)
The role of the Bundesrat’s President is to investigate the true will of the Landby addressing the Prime Minister Stolpe as being
the only one having the political power to resolve the situation
«As the Prime Minister of the Land Brandenburg I hereby vote YES», meaning for all four individual representatives.
… AND ITS WEAKNESSES
Reintroduction of hierarchical structures within the Land
Differing votes ignoredDenying the equality of
the Land’s representatives
CONCLUSION
The formal incompatibility of the Act with the Constitution was right, as Brandensburg’s representatives did not vote unanimously neither in the first nor in the second voting round all four votes of Brandensburg are invalid.BUT… Party representativeness VS federal representativeness (De
Petris)? Art. 50 GG: “The Länder shall participate through the
Bundesrat in the legislation and administration of the Federation (…)”
Art. 51.2 GG: “Each Land shall have at least three votes(…)”