Constitutional ProvisionsRelated to Intergovernmental Transfers
Intergovernmental transfers in Germany flowboth from the Federal government to the Länder, and among the Länder. These transfers fall into twobroad categories: specific grants, and equalizationtransfers.
Specific grants flow from the Federalgovernment to the Länder for projects under the‘jointtasks’ category, forreimbursement of Länderfor federally mandated expenditures, and for specificprojects related to the creation of uniformity of living conditions. Thesepayments are made in accordance with Articles 91a and 104a. These are dealtwith in details in section C below.
Equalization transfers consist of twoelements.11 First, there is an interstate revenue pool into which richerLänder pay and fromwhich poorer Länderdraw according to specified criteria and a setformula. The criteria are set, under Article 104a, as the necessity to avertdisturbance of overall economic equilibrium, to equalize economic capacity, orto promote economic growth. Second, there are federal supplementarypayments made to the poorer Länder based on a fixedpercentage of the VAT(Article 106(3),(4); Article107).
3. Constitutional or OtherSpending Power Provisions
The constitutional allocation of expenditureresponsibilities to the federal government is explicit, but limited. The Federal government is permitted to spend in certainareas of Länderjurisdiction.12 The Federal government may participate in the areas of the‘jointtasks’ provided thatthis participation is relevant to the community as a whole and thatsuch participation is necessary to improve livingcondition.(Article 91a(1)) As well, where the Länder are obliged to expend funds tomeet the requirements of a federal law, the Federal government is obliged toprovide compensation.(Article 104a(2))
There are, however, legal limits on the powerof the federal government to spend in areas of Land jurisdiction.13 First,specific projects to be undertaken under the ‘joint tasks’ provision must be defined indetail in federal law. Such legislation must gain the consent of a majority ofvotes in the Bundesrat. Second, any transfer payments authorized under Article104a also require the Bundesrat’s consent.
4. Politics and LegalDynamics- Including the Role of Law and Role of Politics in the Decision-MakingProcesses
The German federal constitutional systemattempts to achieve a balance between diversity and unity by utilising afederal structure, but with the societal goal of uniform living conditionsacross the federation.
The achievement of a common standard ofliving throughout the country has been a stated goal in the Federal Republic ofGermany since federation.14 Indeed, the achievement of‘uniformity of livingconditions’ was aprinciple entrenched in the Basic Law until 1994. It was considered a guidingtenet of the West German state that, although it was organised federally, allinstitutions should be oriented toward uniformity.15 The primary impetus behindthis philosophy was the belief that the general population, regardless of theirterritorial position, had essentially undifferentiated demands and expectationsin regard to social conditions. Uniformity became a powerful norm permeatingall relationships between, and actions of, both orders of government. Thiscontrasts sharply with the traditional greater emphasis in the United Statesupon state autonomy and individual initiative as higher values.
Adjustments in the balance between theachievement of uniform living conditions and the maintenance of a federalsystem are accomplished by means of constitutional amendment, intergovernmentalrelations, and judicial review. Amendment of the German constitution requiresonly special majorities in the two houses of the federal parliament; it must benoted, however, that because the Bundesrat is composed of ex officio delegates of the Landgovernments, this process in effect entails agreement of a special majority ofthe Land governments. This process has proved relatively flexible, allowing 46amendments during the first 50 years of the federation. These amendments haveincluded the strengthening of the Bund’s legislative and financial rolesin the period 1967-9, and the reunification of Germany in 1990.
In the aftermath of reunification in 1990there was a felt need to further adjust the constitutional basis of thefederation. The western Länder believed that the addition ofthe economically-dependent eastern Länder and the ongoingprocess of European Union (EU) integration put them indanger of losing ground to the federal government.16 The Constitutional ReformAct of 1994 was the answer to these concerns. Among the changes were thestrengthening of the Bundesrat’s role in German policy-making in relation to the EU, the placingof a greater onus on the federal government to justify its use of itsconcurrent and framework legislative powers, additionsto the administrative powers of the Länder, and expansion of the areasover which the Bundesrat has veto powers.17 While the effects of thesechanges are complex, it appears that the position of the Länder, especially inregard to their institutional privileges asrepresented by the Bundesrat, was further enhanced.18
While Germany has been relatively successfulin using incremental constitutional amendment as a means of adjustment in thefederation, however, the particular characteristics of the German distributionof powers necessitate intensive and ongoing coordination among orders ofgovernment. Thus, an extensive system of intergovernmental relations is aprominent feature of the German political decision-makingprocesses.
Intergovernmental relations occur in thecontext of a tension between parliamentary government and federalism. Duringperiods when there are differing party majorities in the Bundestag andBundesrat, the second chamber sometimes acts as an alternative opposition.Parallels are sometimes drawn with the U.S. pattern of ‘divided government’. This can complicate theprocesses of intergovernmental relations.
Role of Law in theDecision-Making Process
The two processes noted in the previoussection have played a large role in the resolution of issues affecting both theoverall federal system and the fiscal arrangements within that system. Theseinclude the processes of incremental constitutional amendment, and thenon-constitutional processes of adjusting of responsibilities according to theprinciple of concurrency and the intricate bargaining processes ofintergovernmental relations. The courts have also played a role in theevolution of German federalism.
Political life in Germany takes place to ahigh degree within, or with significant reference to, a legal framework. Thereis a tendency to attempt to frame actions within legal norms, to justifypolitical actions with reference to constitutional or legal bases, and to seekto achieve binding conflict resolution via legal means. The decisions of theFederal Constitutional Court should be understood in this context.
The Federal Constitutional Court has provideda general support for federalism via the promulgation of the principle offederal comity.19 This principle, advanced inone of the Court’searliest decisions, was held to create, for the Federal government in its relations with the Länder, and for the Länder in relations with each otherand with the Federal government, a constitutional duty to cooperate sincerely in reaching common understandings. The principlecovers not only the substance but also the>20 The effect is to obligepolitical actors to conduct political negotiations in a way which does notviolate or weaken the federal nature of the German system ofgovernance.
Given the wide area of concurrency in thedivision of powers, the Court has been important as a protector of Landjurisdiction; i.e., had the Court adopted a broad interpretation of federal power, the competences of the Länder would have been seriouslycompromised. The Court has chosen, however, to stress the importance of Articles 70 and 83 of theConstitution, which provide the residual power to the Länder and provide for Länder administration of federal law,respectively.21 While the Court has sometimes been generous to the Federalgovernment in cases concerning economic matters, even in this area theinterpretation has been sufficiently narrow to protect Landprivileges.
In general, thepattern of decision-making by the Court seems to indicate a desire to maintaina balance in the federal system, but with a tendency to protect the position ofthe Länder.
The Federal Constitutional Court has a broadpower to consider referred cases.22 The so-called ‘abstract review ofnorms’ allows theCourt to determine if a norm of federal or Land law is in conformity with theBasic Law, and whether Land law is in conformity with federal law. Referencescan be directly initiated by the federal government, a Land government, or byrequest of one third of the members of the Bundestag, without reference to aconcrete case(Article 93).
It is not necessary for the issue in questionto directly affect the party requesting the adjudication. Thus, it isrelatively easy for governments to seek a judicial opinion on legislativeprovisions to which they object, even if the issue is not strictly a federalone. While this ease of access can be abused by governments or politicalparties for partisan purposes, this has not been seen as a major problem in theGerman system.
Appointments to theCourts
The federal principle in Germany extends tothe selection of judges for the Federal Constitutional Court. One-half of thesixteen judges are selected by the Bundestag, and the other half by theBundesrat. In each case, there is a requirement for a two-thirds majority voteto confirm a selection.
In practice, a special judicial selectioncommittee of the Bundestag, composed of elite members of the political partiesin proportion to their strength in the chamber, makes the Bundestag’s selections. TheBundesrat’s judiciarycommittee makes nominations to a plenary session of the Bundesrat. As Landdelegations to the Bundesrat must vote on instructions, the Land governmentsretain a direct influence on the selections.
A procedure similar to that for the FederalConstitutional Court is used to select judges for all other federalcourts.
Role of Politics in theDecision-Making Process
As noted, the peculiarities of thedistribution of powers in the German system necessitates extensiveintergovernmental coordination. This system of intergovernmental relations maybe conceived of as having three levels.23 The first is the level ofthe ‘wholestate’ (Gesamstaat). This level comprisesinstitutions in which both the Federal government (Bund) and the Länder are represented on terms ofequal status. Decisions at this level must be made unanimously, via a processof accommodation and compromise; thus, discussions mayend with only an agreement to disagree. The function of this level is toprovide consultation and cooperation in all fields, but in particular inoverlapping fields of competence.
The top institution in this category is theConference of the Heads of Government of theFederation and the Länder. Meetings of this group occur about every four months.Agreements reached among Heads of Government may require the further approval of Federal or Landlegislatures.
The second level of intergovernmentalrelations are those of the ‘federal state’ (Bundesstaat).This level comprises the constitutionally organised structure ofinterrelationships between the Federal and Land institutions. Decisions at thislevel are subject to simple or special majority decision-making rules. Thesubject matter of decisions made at this level must fall within the federallegislative field or, as in the case of ‘joint tasks’, be subject to federalprocedures. The function of this level is to provide coordination andpreparation for voting on legislation.
The Bundesrat is the key institution at thislevel. Its plenary sessions occur every third week, but committee work leadingto these sessions is ongoing. An entire network of bodies supports the work ofthe Bundesrat, ranging from permanent advisorycouncils, to missions of the Länder staffed by Land civil servants. Thelatter provide a conduit for information flow between orders ofgovernment.
While decision-making via majority voting isthe constitutionally-mandated rule in the Bundesrat,there has developed an institutional culture which puts a premium on consensus.There is extreme reluctance on the part of the Länder to pass legislation over theserious objections of even a single Land.24 There is thus a norm ofnegotiation to find a unanimously acceptable compromise, even if this meansthat agreement can only be achieved on the basis of the lowest commondenominator. While such a norm may have questionable policy consequences, itconforms to the general culture of federal comity.
The ‘thirdlevel’ ofintergovernmental relations consists of cooperation among the Länder, excluding the federalgovernment. This level consists of institutions in which the Länder are represented on terms ofequal status. Decisions must be unanimous, and may require the approval of the federal or Land legislatures. Mattersdiscussed may fall within either or both of Federal and Land areas oflegislative jurisdiction. The function of this level is to provide coordinationnot only in the preparation of legislation but also on processes ofadministration.
The highest ranking institution at this levelis the Conference of Minister-Presidents of the Länder. The Conference convenesformally once per year, but informally almost monthly. Parallel meetings amongministers and officials with the same area offunctional responsibility (i.e., health, justice, etc.) areongoing.
Even this brief account should make it clearthat intergovernmental relations are a prominent feature of the German systemof governance. Political decision-making routinely entails complex processes ofintergovernmental bargaining and compromise.
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