german immigration act case

1. VOTING PROCEDURES IN THE BUNDESRAT
«Immigration Act (Zuwanderungsgesetz) case»
A cura di:
Dottori Arianna, La Posta Eleonora, Decimo
Georgia e Pantusa Anna Lisa

2. OUTLINE
 The Bundesrat and its
voting rules
 Casus Belli
 Constitutional Court’s
decision
 Dissenting opinions
 Conclusion

3. POLITICS OF GERMANY
The permanent consitutional bodies of the federal
system:
Bundestag, Bundesrat, the federal President, the federal
Government and the federal consitutional Court

4. BUNDESRAT
Composition:
 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[…]»

5. BUNDESRAT
Members
 Only cabinet members
from the Federal States
 Dual function
 The mandate
 Speaking rights in the
Bundestag
 incompatibility
The President and the
Presidium
 Annual rotation
 Budget

6. 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“Stimmführer” -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

7. 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

8. 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

9. 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”

10. 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
unanimously
So asked the Stimmführer
(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

11. 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

12. 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

13. WHAT DID THE COURT DECIDE?
 The court delivered its decision on 18 December
2002
 Decision: the Act had been passed in a way that
was formally incompatible with the Constitution
 Decision taken by the Second Senate of the Court
by majority
 Previous 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

14. 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

15. 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 necessity
Voting rounds:
I. The Land had not yet cast its vote
II. 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)

16. 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

17. THE REASONING OF THE DISSENTING
JUDGES (III)
The role of the Bundesrat’s President is to
investigate the true will of the Land
by 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.

18. … AND ITS WEAKNESSES
 Reintroduction of
hierarchical structures
within the Land
 Differing votes ignored
 Denying the equality of
the Land’s
representatives

19. 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(…)”

20. THANKS FOR YOUR
ATTENTION!