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(…)”

THANKS FOR YOUR ATTENTION!