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Federalism in Germany is made of the states of Germany and the federal government. The central government, the states, and the German municipalities have different tasks and partially competing regions of responsibilities ruled by a complex system of checks and balances.
German federalism dates back to the founding of the Holy Roman Empire in the Middle Ages, to the reforms that came with the Peace of Westphalia and to the constitution of the German Empire from 1871. [1]
Following German unification, German federalism came into conflict with German nationalism. Nationalists argued for power to be concentrated in the central government in Berlin, but were resisted by monarchs and their governments in the various German states outside the Kingdom of Prussia, with the Kingdom of Bavaria in particular keen to defend the rights afforded to it in the Imperial constitution.
After the end of World War II, the federal nature of Germany was restored, after having been effectively abolished under the Nazis. The current German constitution, adopted in 1949, protects Germany's federal nature in the so-called eternity clause.
Since re-unification in 1990, the Federal Republic has consisted of sixteen states: the ten states of the Federal Republic before re-unification ("West Germany"), the five new states of the former East Germany, and Berlin.
The Basic Law for the Federal Republic of Germany divides authority between the federal government and the states (German: "Länder"), with the general principle governing relations articulated in Article 30: "Except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the Länder." [2] Thus, the federal government can exercise authority only in those areas specified in the Basic Law. The states are represented at the federal level through the Bundesrat, which has a role similar to the upper house in a true bicameral parliament.
The Basic Law divides the federal and state governments' legislative responsibilities into exclusive federal powers (Articles 71 and 73), competing powers (Articles 72, 74), deviation powers (Article 72), and exclusive state powers (Article 70). The exclusive legislative jurisdiction of the federal government includes defense, foreign affairs, immigration, citizenship, communications, and currency standards, whereas the states have exclusive jurisdiction on the police (excluding federal police), most of education, the press, freedom of assembly, public housing, prisons and media affairs, among others. [3] Even in cases where the states have exclusive jurisdiction, they sometimes choose to work with each other and come to a basic agreement with the other states, which is then passed by the sixteen state parliaments and thereby enshrined into law nationwide. This is done in order to avoid legal patchworks. An example of this is the states' online gambling regulations. [4]
In the areas of nature conservation, university degrees, and university admission, among others, state legislation can deviate from (i.e. amend or replace) federal legislation. [3]
The federal and state governments share concurrent powers in several areas, including, but not limited to, business law, civil law, [3] welfare, taxation, consumer protection, public holidays, and public health. In many concurrent powers, however, state legislation only remains in effect as long as there is no federal legislation that contradicts its contents, [3] though the passage of such federal legislation may be subject to additional legal requirements, as stipulated by Article 72, Section 2 of the Basic Law. [2]
The areas of shared responsibility for the states and the federal government were enlarged by an amendment to the Basic Law in 1969 (Articles 91a and 91b), which calls for joint action in areas of broad social concern such as higher education, regional economic development, and agricultural reform.
International relations, including international treaties, are primarily the responsibility of the federal level but, as in other federations, the constituent states have limited powers in this area. As provided in Article 23, Article 24, and Article 32 of the Basic Law, the states (Länder) have the right to representation at the federal level (i.e. through the Bundesrat) in matters of international relations that affect them, including the transfer of sovereignty to international organizations and, with the consent of the federal government, have limited powers to conclude international treaties. [5]
Some older treaties between German states and other countries also remain in effect. The Bavarian–Austrian Salt Treaty of 1829 (German : Konvention zwischen Bayern und Österreich über die beiderseitigen Salinenverhältnisse vom 18. März 1829), for instance, is the oldest European treaty still in effect. [6] 1957 the government of Bavaria used a revision of the treaty to actively claim the states' rights against the will and claims of the federal government. [6]
The Bundestag (meaning Federal Diet) is Germany's federal parliament and the de facto lower house of the federal legislature, and the Bundesrat (Federal Council), which represents the states at the federal level, is the de facto upper house. The entirety of the Bundestag is elected in a single federal election, which is typically held every four years, unlike the Bundesrat, which is composed of the sixteen state governments and therefore prone to change in its composition frequently, as the various states hold elections at different times with little to no coordination. As a result, the federal governing coalition (which requires a majority in only the lower house, i.e. the Bundestag in order to be able to govern, like in most other parliamentary systems) rarely has a stable majority in the upper house, i.e. the Bundesrat, and is therefore required to compromise with opposition parties in order to pass legislation that requires the Bundesrat's approval.
The Bundestag is typically the dominant body in ordinary federal lawmaking, but the Bundesrat's explicit consent (an absolute majority of members voting in favour) is required for every approval law, i.e. bills that affect state finances or administrational duties in some way, [7] which makes up roughly 40% of all federal legislation, [8] otherwise the bill is effectively vetoed and this veto cannot be overridden by the Bundestag. The Bundesrat also has the ability to veto every other type of legislation, so-called objection laws, by an absolute majority and two-thirds majority of all members, though this veto can be overridden by an absolute majority of all members and a two-thirds majority of voting members representing at least of half of all members in the Bundestag, respectively. [7]
A two-thirds majority of all members in the Bundestag and a two-thirds majority of all voting members (representing at least half of members) in the Bundesrat is required for any constitutional amendment. [7]
In a rotating fashion, Federal Constitutional Court judges are elected by a two-thirds majority vote by the Bundestag and the Bundesrat. [9] By a majority vote, judges of other federal courts (e.g. Federal Court of Justice) are elected simultaneously by both the federation and the states with each having half of the voting power. [10]
The president of Germany, a largely symbolic position given Germany's parliamentary system but nonetheless the official head of state, is also elected by both the federal parliament and state legislatures coequally (see: Federal Convention (Germany)).
The makeup of the Bundesrat and therefore the representation of the states at the federal level is fundamentally different from the upper houses of some other federal systems, such as the Swiss Council of States or the United States Senate. In those countries, upper house legislators are elected separately and are therefore independent from their respective state governments. In contrast, the members of the Bundesrat are merely delegates of state governments and invariably vote and propose laws as instructed by their respective governments, meaning the states exert direct influence over federal politics.
Since Germany is a member of the European Union, some of the powers the federal government constitutionally possesses are, in practice, exercised by EU institutions, namely by the European Parliament, the European Commission, the European Council, and the European Court of Justice. The EU policy areas, shared or exclusive, include, but are not limited to, monetary policy (Germany being a member of the Eurozone), environment, agriculture, foreign policy, internal market, customs union, and consumer protection. However, all of these powers were freely delegated to the EU by Germany (unlike in a federation where power is inherent and does not require delegation) and Germany remains sovereign and maintains the right to leave the union, therefore, the EU is not part of German federalism. Germany also maintains a large degree of control over EU policy through the European Council and its MEPs in the European Parliament.
The Bundestag is the German federal parliament. It is the only federal representative body that is directly elected by the German people, comparable to the House of Commons of the United Kingdom. The Bundestag was established by Title III of the Basic Law for the Federal Republic of Germany in 1949 as one of the legislative bodies of Germany and thus it is the historical successor to the earlier Reichstag.
Germany is a democratic and federal parliamentary republic, where federal legislative power is vested in the Bundestag and the Bundesrat.
The president of Germany, officially titled the Federal President of the Federal Republic of Germany, is the head of state of Germany.
The Basic Law for the Federal Republic of Germany is the constitution of the Federal Republic of Germany.
A federation is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a federal government (federalism). In a federation, the self-governing status of the component states, as well as the division of power between them and the central government, is constitutionally entrenched and may not be altered by a unilateral decision, neither by the component states nor the federal political body.
The German Bundesrat is a legislative body that represents the sixteen Länder of Germany at the federal level. The Bundesrat meets at the former Prussian House of Lords in Berlin. Its second seat is located in the former West German capital of Bonn.
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions, thus changing the frame of government without altering the existing text of the document.
Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution. The Oxford English Dictionary defines subsidiarity as "the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level". The concept is applicable in the fields of government, political science, neuropsychology, cybernetics, management and in military command. The OED adds that the term "subsidiarity" in English follows the early German usage of "Subsidiarität". More distantly, it is derived from the Latin verb subsidio, and the related noun subsidium.
The Reichsrat of the Weimar Republic was the de facto upper house of Germany's parliament; the lower house was the popularly elected Reichstag. The Reichsrat's members were appointed by the German state governments to represent their interests in the legislation and administration of the nation at the federal level. Its powers were relatively limited, making it considerably weaker than its predecessor, the Bundesrat of the German Empire (1871–1918). It could introduce legislation for the Reichstag to consider and veto laws that it passed, but the vetoes could be overridden. The Reichsrat also played a role in administering and implementing Reich laws.
The institutions of the European Union are the seven principal decision-making bodies of the European Union and the Euratom. They are, as listed in Article 13 of the Treaty on European Union:
The Federal Cabinet, or according to the German Basic Law, the Federal Government, is the chief executive body of the Federal Republic of Germany. It consists of the Federal Chancellor and cabinet ministers. The fundamentals of the cabinet's organisation, as well as the method of its election and appointment, along with the procedure for its dismissal, are set down in articles 62 through 69 of the Basic Law for the Federal Republic of Germany (Grundgesetz).
The Constitution of the German Empire was the basic law of the German Empire of 1871–1918, from 16 April 1871, coming into effect on 4 May 1871. German historians often refer to it as Bismarck's imperial constitution, in German the Bismarcksche Reichsverfassung (BRV).
The national parliaments of the European Union are those legislatures responsible for each member state of the European Union (EU). They have a certain degree of institutionalised influence which was expanded under the Treaty of Lisbon to include greater ability to scrutinise proposed European Union law.
The chancellor of Germany, officially the federal chancellor of the Federal Republic of Germany, is the head of the federal government of Germany, and the commander-in-chief of the German Armed Forces during wartime. The chancellor is the chief executive of the Federal Cabinet and heads the executive branch. The chancellor is elected by the Bundestag on the proposal of the federal president and without debate.
The ratification of the Treaty of Lisbon was officially completed by all member states of the European Union on 13 November 2009 when the Czech Republic deposited its instrument of ratification with the Italian government. The Lisbon Treaty came into force on the first day of the month following the deposition of the last instrument of ratification with the government of Italy, which was 1 December 2009.
The state of defence is the constitutional state of emergency in Germany if the country is "under attack by armed force or imminently threatened with such an attack". Established by a constitutional amendment in 1968 during the Cold War, this state of emergency gives the Federal Government extraordinary powers in wartime. It is laid down in Title Xa of the German Constitution. As of present, Germany has never been in the state of defence.
The Federal Constitutional Court is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law of Germany. Since its inception with the beginning of the post-World War II republic, the court has been located in the city of Karlsruhe, which is also the seat of the Federal Court of Justice.
The Joint Committee is, together with the Federal Convention, one of two non–steady constitutional bodies in the political and federal institutional system of the Federal Republic of Germany. It is designed as an emergency parliament in the case of a State of Defence. It consists of 48 members of which two thirds are members of the Bundestag and one third are members of the Bundesrat, the latter representing the governments of the states of Germany (Länder). It was established in 1968 by an amendment of the Basic Law. Ever since then, the Bundestag and the Bundesrat have elected members to serve on the committee. However, since a state of defence has never been declared, the Joint Committee has never convened as of 2024.
The federalism commission is a German commission composed of members of the upper and lower houses. It has existed three times in German history;
The Bundesrat was the highest legislative body in the German Empire (1871–1918). Its members were appointed by the governments of Germany's constituent states to represent their interests in the German parliament. The popularly elected Reichstag was the lower house. The Constitution of the German Empire required that both the Bundesrat and the Reichstag approve laws before they came into force. The Bundesrat was responsible for the enactment of the laws, administrative regulations and the judicial resolution of disputes between constituent states. Its approval was required for declarations of war and, with certain limitations, the conclusion of state treaties.
