Taylor Gunderson
The reforms made to the German Basic Law in 2006 are
considered by many to be “the biggest overhaul of the national constitution
since its creation in 1949” (1). The reforms made during this time were
extremely important because they aimed to untangle the problematic federalist
structure that had been put in place after WWII. When the Basic Law was
created, there was a great deal of emphasis put on checking central power, and
this led the drafters to allow the Bundesrat to veto “60% of all bills put
through the legislative branch” (1). This allowed state governments to block a
great deal of federal legislation. While at the time, this greatly limited the
ability of the executive branch to push legislation through, it quickly became
cumbersome. This structure slowed down legislation making and blocked key
proposals from being passed. Despite this, the federal government began to grow
and expand its influence, and the power of the Lander began to wane (3).
This
was upsetting to many Germans who felt that the Lander governments were being
encroached upon and losing the protection given to them in the Basic Law. Complaints
about this system began in the 1970s, and after years of criticism, a
commission was designed in 2003 to address potential reforms in regard to
German federalism (2). This commission aimed to “identify a set of measures for
breaking the impasse and delivering the kind of robust institutional framework
that would allow Germany to meet the political and policy challenges of the
twenty-first century” (3). This wasn't an easy task, and after months of
discussion, the reform commission fell apart without progress. Without reforms
soon, many worried that the federal system would continue to weaken and public
disenchantment with the system would strengthen (2).
Thankfully, in 2005, a coalition developed in the government
between the CDU/CSU and the SPD which returned federalism reforms to the table
(3). One of the first goals was “strengthening the legislation of the
federation and Lander through a clarification of their legislative powers and
eliminating framework legislation” (3). Framework powers were one of the main
issues being addressed by the reform movement because they allowed the federal
government to limit Lander legislative powers when considered necessary by
creating “frameworks” and allowing the Land parliaments to “fill in the details”
(4). Framework legislation has been expanding in use by the federation; thereby,
slowly eliminating Lander legislative powers. In the reforms passed in 2006,
framework legislation was completely eliminated as it was determined that “the
federal government was providing details and not merely frameworks for the Land
parliaments” (3). Although the Federal Constitutional Court had ruled in 2004
that the federation had been interpreting their framework powers too broadly, specifically
in the area of education, this did not stop their federal intrusion; therefore,
the reforms were forced to completely remove the provision allowing for this
altogether (3). This reform helped to create a fundamental change in the power
structure of the federal system in Germany by attempting to return legislative
powers to the individual Lander.
The reforms of 2006 also successfully addressed the issue of
the Budesrat having too strong of an absolute veto power. The Budesrat, also
called the Federal Council, is filled by representatives of the Lander governments
and not the Lander parliaments, and it disproportionately favors smaller Lander
(4). Because of this, the Budesrat played a heavy role in the powerfulness of the
Lander prime ministers (3). It can be assumed that this created hard
negotiation because the prime ministers would have been unlikely to willingly
give up their own power located in the Budesrat. The reforms were able to
remove the clause of the Basic Law which gave the Budesrat the veto power. In
exchange, new provisions were added which said that “federal laws may not
transfer tasks to local governments, which means that future transfers of tasks
will have to come from the Lander” (3). This provision attempted to compensate
for the loss of the veto by giving the Lander more constitutional
responsibility for their own localities.
Although the 2006 reforms were an overhaul and attempted to
fix many of the previous issues regarding federalism, they did not satisfy
everyone. Some thought the reforms weren't strong enough and wished that more
had been done while others did not approve of all the different reforms located
in the package. Still, the reforms made to the German Basic Law in 2006 were
steps forward. The Court had been unable to solve many of the issues fixed by
the reforms because they dealt so heavily on the very structure of federalism
in the country. Therefore, most of the reforms could have only been accomplished
the way they were: through constitutional reform.
1)“German States Agree to Reform of Federal
Constitution” DW. 2006. http://www.dw.de/german-states-agree-to-reform-of-federal-constitution/a-1926673
2) Gunlicks, Arthur B. “German Federalism
and Recent Reform Efforts” German
Federalism: Theory and Developments. German Law Journal. http://www.germanlawjournal.com/pdfs/Vol06No10/PDF_Vol_06_No_10_1283-1296_SI_Articles_Gunlicks.pdf
3) Moore, Carolyn. Jacoby, Wade. Gunlicks,
Arthur. “Introduction: German Federalism in Transition?” Print.
4) Wollmann, Hellmut. “The Recent Reform of
German Federalism through Constitutional Amendment.” http://www.uio.no/english/research/interfaculty-research-areas/democracy/news-and-events/events/conferences/2013/Programme/wollmann.-reform-of-german-federalism.-draft-dec.pdf
Because the German Basic Law was written before the reunification of East and West Germany, the original document was not intended for use for a unified Germany, and there were Article provisions for the process of rejoining the country. Article 23 was intended to allow for the accession of German territories into one country, and Article 146 allowed for an entirely new constitution. The Unification Treaty of 1990 created a package of amendments that created one Germany united under the same Basic Law that was written by the Allies after WWII.
ReplyDeleteThe preamble of the Basic Law was altered in order to contain language that was inclusive to all German citizens (1). This was an important altercation to the Basic Law because the preamble sets the tone for a constitution. By making amending the preamble to include the newly rejoined East and West Germany as one country, it sets the tone for the remainder of the constitution as one that takes into account the newly unified country. In this same amendment package, Article 146 was amended to include all German people (1).
These were important amendments to the German Basic Law because it signaled a new era for German law and politics. These small amendments were addressing the unity of the nation as a whole, which is important in constitutions because not only do they provide a roadmap for governing, but they can also provide a symbol of national pride. In the important move of reunifying the country, amending the constitution to become symbolically more inclusive is an important step in making this concrete change for the future of Germany.
(1). Society and the Constitution. "Constitution of the Federal Republic of Germany." http://www.bmi.bund.de/EN/Topics/Society-Constitution/Constitutional-Issues/constitutional-issues_node.html
ReplyDeleteKeiko Diaz-Pezua
ReplyDeleteIn 1994, sections of the German Basic Law which affected the distribution of powers were amended. These sections included Articles 72, 74, 75, and 93 (1). Article 72 grants the federation concurrent powers (2) and the second paragraph was amended to that such power can be claimed only if it is “essential” or “required” and not just the result of a perceived need (1). One of these “needs” was the establishment of “uniformity of living conditions” (1). This is a major amendment to the German Basic Law in that has to do with the sharing of powers and the balance of the federal and local governments working together. This is relevant because before World War I, there was a centralization of powers which allowed for the rise of a dictator. As the nation has grown and along with it complexities, there must be changes in when and how much power can be had and/or distributed.
As of October 1994 the federation can claim a federal preemption to be “essential” only in the general interest of preserving “equivalent living conditions” or to secure the legal and economic unity of the country. It was thought that the strong unitary pressures of “uniformity” of living conditions would be lessened somewhat by the term “equivalent,” of living conditions can vary from Land to Land. Additionally, under the new provision added to Article 93, the Land governments, Land parliaments, and the Bundesrat can take any disagreements over what is “essential” to the Federal Constitutional Court, which they could not do before the 1994 changes (1). This allows the two areas to come together and come up with an understanding and work together in order to try and solve the problems of the nation.
A third paragraph added to Article 72 would return power to the Lander if and when a “requirement” for a federal actions no longer exists. So far there are no examples of a power that has been returned. The responsibilities of the Lander which include the areas of culture, education, local government, and police, pale in significance to the concurrent powers of the federation (1). Many are still hoping for greater, more radical reform but the ability to amend the Basic Law in order for it to stay current and relevant is important.
(1) German Federalism and Recent Reform Efforts; http://www.germanlawjournal.com/pdfs/Vol06No10/PDF_Vol_06_No_10_1283-1296_SI_Articles_Gunlicks.pdf
(2) German Basic Law; http://www.fordham.edu/halsall/mod/CONST-DE.asp
Andrew KeatingNovember 23, 2014 at 1:11 PM
ReplyDeleteThe previous poster wrote on the 2006 reforms, which indeed could be considered one of the more important amendments to the German Basic Law. While these reforms were necessary and seemed to fix quite a few unexpected issues with the then-current federal structure, that is, the status of Länder within the larger state, it is also important to consider the status of Germany within the larger European Union. When Germany signed the treaty of Maastricht in 1992, it also introduced an amendment (article 23) to specify the guidelines for sharing powers with the European Community (which would later become the European Union) (1).
The writers of the original Basic Law could never have foreseen the creation of a European Union. Thus, it was important to set out the guidelines of what Germany’s participation would look like. While article 24 gives the Federal government the ability to “transfer sovereign powers to international organizations,” (2) and article 79 allows for “peace agreements” (treaties) to modify the Basic Law, these did little to ensure that the Länder would be respected in the new European Community/Union. As a federal state, it would obviously be important that the Länder would have continued sovereignty and input in decisions relating to the EU. This was the problem that article 23 set out to fix. Under article 23, the federal government must take the positions of the Bundesrat and the Länder into account when considering EU propositions that would affect the sovereignty of the Länder (2). Additionally, members both the Bundesrat and the Bundestag may levy a court challenge against any EU legislation that they consider to be in conflict with their rights or the provisions of the basic law.
(1) German Law Journal, Vol 10, No. 9, pg. 1232. http://germanlawjournal.com/pdfs/Vol10No09/PDF_Vol_10_No_09_1215-1256_Articles_JaschJasch.pdf
(2) German Basic Law