FEDERALISM REFORM I: THE REFORM OF DUAL FEDERALISM AND POLITIKVERFLECHTUNG?
The main thrust of the proposed amendments concerned two goals: “strengthening the legislation of the federation and Länder through a clearer distinction of their legislative competences and eliminating framework legislation”; and “reducing mutual blockades by the Bundestag and Bundesrat through a re-designation of federal legislation requiring the consent of the Bundesrat.”24
Re-distributing and Distinguishing Legislative Competences and Eliminating Framework Legislation
EXCLUSIVE AND CONCURRENT POWERS.
In the section above discussing the division of legislative powers, it was noted that the federal government had exclusive, concurrent, and framework legislative powers under Articles 71, 72, and 75, respectively. One of the reform goals was to redistribute these powers in such a way as to give the Länder additional responsibilities and therefore strengthen the role and status, or “constitutional space, ” of the Land parliaments, that is, the “middle level”; however, another goal was to provide a clearer distinction between federal and Land competences. This meant that in addition to granting the Länder parliaments more powers, other powers were granted the federal government. Thus, several powers were added to the exclusive powers of the federation under Article 73: the protection of German cultural artifacts from transfers abroad, the defense by federal police against international terrorism under certain conditions, the control of weapons and explosives, the care of those injured or affected by war, and the manufacture and use of nuclear energy for peaceful purposes and protection against dangers from nuclear accidents.As also noted in the section on “the division of legislative powers, ” many of the powers assumed by the federation have come from the concurrent powers contained in Articles 72 and 74.
Article 72, paragraph 1, states that the Länder have the right to legislate so long as and insofar as the federation has not made use of its legislative authority; paragraph 2 gives the federation legislative powers that are essential (erforderlich) in promoting equivalent living conditions in the federation or in protecting legal and economic unity in the general interest of the federation.25 This second paragraph was changed so that the federation no longer has the right to pass legislation under its general concurrent powers; rather, it retains the competence to pass “essential legislation” in ten areas only (see Article 74, paragraph 1, items 4, 7, 11, 13, 15, 19a, 20, 22, 25, and 26). In sixteen areas it has concurrent powers without having to meet the “essential” condition. A new paragraph 3 of Article 72 states that in six other areas (listed also in Article 74, paragraph 1, items 28–33) the Länder have the right to deviate (abweichen) from federal laws covering these topics and that these laws go into effect at the earliest six months after passage, unless the Bundesrat has agreed to a different timetable. It should be noted that the tendency of the federation to pass concurrent legislation on the grounds that there was a “need” and, after 1994, that it was “essential” according to Article 72, paragraph 2, was limited even before the reform of federalism of 2006 was passed as the result of decisions of the Federal Constitutional Court that narrowed considerably the meaning of “essential.”26As was seen above, Article 74 has been amended by the addition of several items. In the first item on the list of concurrent legislation that deals with a series of legal issues, punishment for crimes was given to the Länder. In the items that follow, the regulation of assembly and the regulation of nursing homes and homes for the elderly and disabled were removed as a federal concurrent power, while powers dealing with weapons and explosives and the care of those injured or affected by war were also removed from concurrent legislation and added to the exclusive powers of the federation.
Several other items were revised, and seven new items were added after item 26, so that there are now thirty-three areas listed under concurrent legislation.Article 74a, added to the Basic Law in 1971, proved to be particularly contentious. It gave the federation concurrent powers over the salaries and benefits of all public employees, with the purpose of ending the competition among the Länder for public employees, including professors, school teachers, and police, as well as administrative employees. It was cited for decades as an example of the Länder voluntarily giving up core legislative competences to the federation. Article 74a was deleted in the 2006 reform of federalism, and provisions concerning the status and duties of civil servants (Beamten) of the Länder, local governments, and other public corporations, as well as judges, were transferred to the concurrent powers of Article 74 as item 27. Salaries and benefits for all public employees in the Länder and local governments, however, are now the responsibility of the Länder.27
In the cases where the Länder may deviate from federal legislation passed in accordance with federal concurrent powers, the federal law is not to go into effect for six months. This not only allows the Länder time to consider to what extent, if any, they wish to deviate from the federal legislation; it also prevents a kind of legislative “ping-pong” between federal and Land laws. On the other hand, a two-thirds majority of the Bundesrat can allow the federal law to go into effect immediately.28
FRAMEWORK POWERS. Before the 2006 reform, the third source of federal powers was Article 75, which provided for federal framework legislation. Over the years complaints multiplied that Article 75 was one of the many causes of the decline of the role of the Länder parliaments. Federal elements were supposed to be allowed only when it was “essential, ” but this was interpreted rather broadly until the Federal Constitutional Court ruled in two cases in 2004 (Junior Professor Decision) and 2005 (Student Fees Decision) that the interpretations by the federal lawmakers were indeed too broad.29 The authority of the federal government in these cases had been taken from “general principles of higher education, ” one of six areas for which it could pass framework legislation.
Article 75 had long been a target of reformers, so it was not surprising that it was eliminated by the 2006 reform of federalism. Of the remaining areas, the right to regulate cultural artifacts was transferred to the federal government’s exclusive powers in Article 73, while the status and duties of Land and local civil servants, hunting, nature conservation and landscape management, land distribution, land-use planning, water resource management, and admission and graduation requirements in higher education have been added to the federal concurrent powers.30
SUMMARY OF CHANGES IN LEGISLATIVE COMPETENCES. In his analysis of legislative changes, Karl-Michael Reineck noted that in the past it was clear that legislative competences lay mostly with the federation. It had important exclusive powers and had used its concurrent powers to the full extent. It also had significant framework legislative powers that it was interpreting broadly. With the federalism reform of 2006, the Länder received additional law-making authority over a number of environmental matters31 and in areas such as punishment for crimes, higher-education law (except for admission and graduation requirements and with the right of deviation) and financing for higher education,32 retirement and nursing homes, store-closing hours,33 restaurants (especially regarding smoking),34 the promotion of public housing, and the salaries and benefits for judges and public employees at the Land and local levels. Federal framework legislation no longer limits the room for legislative maneuver by the Länder in selected important areas, and they have the right to deviate from federal legislation in a number of areas. On the other hand, formidable legislative competences remain with the federation, and the reform of federalism did not change the fact that the reality of legislative competences is almost the opposite of what Article 70, paragraph 1, suggests.35