Germany: Overlapping Powers and Political Entanglements

Germany: Overlapping Powers and Political Entanglements JUTTA KRAMER The Federal Republic of Germany was founded in 1949, four years after Germany’s defeat in World War II, after the Western Allies gave the prime ministers of the constituent states, or Länder, the task of drafting a new constitution with a federal character. Their goal was to prevent a strong central state from arising in Germany again. The resulting federal system is characterized by interconnections and overlapping powers between the central government and the constituent units. Current challenges to Germany’s federal structure include whether or not the system as it stands provides for an adequate constitutional relationship between the federation and the states; whether or not it sufficiently fulfils democratic requirements; and most importantly at present, whether or not the system is capable not only of carrying, but also of surviving the burdens of German unification with its political, economic and constitutional consequences. The constitution of the Federal Republic of Germany, called the Basic Law, was drafted and passed by the Parliamentary Council in 1948 and 1949. The Basic Law re-established a federal system and distinguished between three different types of public authorities: the federation, the states, and the Federal Republic of Germany as a whole. In connection with the conundrum of whether or not a successor to the international treaties and obligations of the former German empire existed and who it might have been, the Federal Constitutional Court stated that there was no common frame for such a single successor known as the ‘Federal Republic of Germany’, but only two entities: the federation and the states. When the court made this decision, the ongoing debate on the nature of the German federal system came to an end. Like the majority of fede-rations, Germany consists of a two-order regime. Despite the dual character of the German federal system, the constitutional relations among and between these two orders form a triplet: namely, relations within the federation, between the federation and states, and inter-state relations. Consequently, the federation as well as each single constituent state has its own constitutional jurisdiction, exercised internally as the constitution-making power. Externally, each has the power to establish and maintain inter-governmental relations with the federation and the constituent states. The only mechanism of cohesion of the three constitutional dimensions is the so called “homogeneity clause” which directs the constitutional order in the Länder to conform to the principles of the democratic and social state and the rule of law as defined in the Basic Law. Apart from that one clause, the three constitutional areas co-exist completely separately from one another. As in any genuine federal form of government, there is not one single working relationship between the federation and the states in the German system, but a multi-faceted network of such relationships, both formal and informal, bilateral and multilateral, individual and collective. The Federal Council, or Bundesrat, as Germany’s second house of the federation, is at the centre of the federal structure in Germany. In constitutional terms and in working practice, it is the legislative organ representing the states within a federal framework and it also participates in federal administration. The immediate level of coordination is that of horizontal cooperation among the states themselves on the basis of intergovernmental relations. In this three-dimensional constitutional framework the federation has primacy over the constituent states, as is reflected in its title as the “upper state”. It is also responsible for protecting and preserving the federal constitution. Nevertheless the constituent states are “states” in the full meaning of the word, enjoying their own original constitutional power, exercising independently their own functions and competencies, and administering their tasks as an inherent constitution-based domain. Therefore, except as otherwise provided or permitted by the Basic Law, the relationships between the federation and the states, as well as between the states, are governed by the principles of parity and equality. Every state – in spite of its size, number of inhabitants, economic strength, and financial capacity – has an equal federal status under the constitution. The federal systems in Germany and in the United States both show a clear tendency to uniformity and centralisation. But there are three undeniable differences. First, in Germany the development of unitary federalism was driven by the most powerful political organs of the federal government, the popularly-elected first chamber, the Bundestag, and the second chamber, the Bundesrat. They have granted themselves concurrent legislative competencies by amending the constitution when they have had the required two-thirds majority of both houses. Second, in political reality the most effective division of powers is practised by the two different administrations at the federal as well as the state level, thus displaying aspects of executive federalism. That means in practise that the federal government has acquired the largest share of concurrent competencies as the main legislator in Germany, while the Länder as the executors not only of their own laws, but also of the bulk of the federal legislation, function essentially as administrative bodies. Third, with joint tasks and joint taxes belonging to both the federal and the state governments, there is a great deal of overlapping powers, political entanglements, and consensus-seeking procedures–a characteristic of cooperative federalism. However, the system of cooperative federalism has proved to be not only crippling on a practical level, but also problematic from a democratic point of view. If everyone is made to be responsible for everything, the result is that nobody becomes responsible for anything. For this reason, there has been much discussion about instituting reforms to produce greater transparency with regard to decision making and responsibility, and about permitting more competition between the federal government and the Länder. However, Germany is still far from having a system of competitive federalism. After 45 years of the East-West political division of Germany due to Cold War conflict, the reunification of Germany took place in 1990. The German Democratic Republic (GDR) joined the territory covered by the Basic Law (Grundgesetz) after the GDR collapsed politically and economically. In the process of reunification, the country decided that in order to restore previous states as the basis for any implementation of a federal system, one should for the time being return to the traditional structures in East Germany, creating “the new Länder”, while leaving the reform of the federal structure to a later date. It seems certain that the federation will have to offer massive subsidies for quite some time to the newly incorporated East German states. While this problem has long been recognized, it nevertheless poses a considerable threat to the development of the federal system in the next few years. This situation could introduce a prolonged period of centralisation in German federalism such as happened in the years following the foundation of the Federal Republic until the financial reforms of 1966 to 1969.