Germany in the European Union

Introduction

Germany was a founder member of the European Union (EU). Article 23 of the German Constitution (Basic Law) empowers the German Bundestag to participate in the EU’s legislative processes

The German Constitution and the European Union

The Article 23 of the German Constitution, related to the European Union, specifies the following:

(1) To realize a unified Europe, Germany participates in the development of the European Union which is bound to democratic, rule of law, social, and federal principles as well as the principle of subsidiarity and provides a protection of fundamental rights essentially equivalent to that of this Constitution. The federation can, for this purpose and with the consent of the Senate [Bundesrat], delegate sovereign powers. Article 79 II & III is applicable for the foundation of the European Union as well as for changes in its contractual bases and comparable regulations by which the content of this Constitution is changed or amended or by which such changes or amendments are authorized.

(1a) The House of Representatives [Bundestag] and the Senate [Bundesrat] have the right to challenge violations of the principle of subsidiarity by legislative acts of the European Union before the Court of the European Union. The House of Representatives [Bundestag] is dutybound to do so upon the motion of one quarter of its members. By statute requiring the consent of the Senate [Bundesrat], regarding the exercise of rights of the House of Representatives [Bundestag] and the Senate [Bundesrat] under the contractual bases of the European Union, exceptions may be authorized to Article 42 II 1 and Article 52 III 1.

(2) The House of Representatives [Bundestag] and the States [Länder], by their representation in the Senate [Bundesrat], participate in matters of the European Union. The Government has to thoroughly inform House of Representatives [Bundestag] and Senate [Bundesrat] at the earliest possible time.

(3) The Government allows for statements of the House of Representatives [Bundestag] before it takes part in drafting European Union laws. The Government considers statements of the House of Representatives [Bundestag] during deliberations. Detail are regulated by federal statute.

(4) The Senate [Bundesrat] has to be included in the deliberations of the House of Representatives [Bundestag] insofar as it would have to participate in a domestic measure or insofar as the States [Länder] would be accountable domestically.

(5) Insofar as, in the area of exclusive legislative competence of the Federation, the interests of the States [Länder] are affected or insofar as, in all other cases, the Federation has legislative competence, the Government considers the statement of the Senate [Bundesrat]. If legislative competencies of the States [Länder], the installation of their agencies, or their procedures are centrally affected, the opinion of the Senate [Bundesrat] has to be considered as decisive for the Federation’s deliberation; the responsibility of the Federation for the whole state has to be maintained in the process. The consent of the Government is necessary in matters possibly resulting in higher expenses or lower revenues for the Federation.

(6) Where exclusive legislative competencies of the States [Länder] are centrally affected in the areas of school education, culture, or broadcasting, the exercise of the Federal Republic of Germany’s rights as member state of the European Union is delegated to a representative of the States [Länder] assigned by the Senate [Bundesrat]. These rights are exercised with participation of and in coordination with the Government; the responsibility of the Federation for the whole state has to be maintained in the process.

(7) Details of Paragraphs IV to VI are regulated by a statute requiring the consent of the Senate [Bundesrat].

European policy in the German Bundestag

The German Bundestag can become involved in the making of EU law by taking decisions which have to be taken into consideration by the German Federal Government when it is negotiating in the (European Union) Council.

The Bundestag’s primary means of influencing EU lawmaking is via the Federal Government. In addition, Parliament can contact the Commission direct and work together with other national parliaments and the European Parliament. Cooperation with the European Parliament, in particular, has intensified in recent years. For example, interparliamentary meetings and hearings are held at regular intervals, allowing the parliaments of the Member States to be involved in the legislative work of the European Parliament in the case of important EU proposals.

The committees of the European Parliament and the German Bundestag are able to hold joint meetings together, while the European committees of the EU’s national parliaments and Members of the European Parliament (MEPs) meet regularly under the auspices of the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC).

The German House of Representatives requires comprehensive information in order to participate in European Union affairs and to exercise its rights to scrutinise the work of the Federal Government. These rights are enshrined in Article 23 (2) and (3) of the Basic Law and fleshed out in the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union (EUZBBG), which was amended in September 2009. The Act requires the Federal Government to provide the Bundestag with comprehensive information at the earliest possible time. In particular, the government must transmit to the Bundestag all Commission proposals for EU regulations and directives, reports, communications, green and white papers, and proposals for Council decisions, and inform the Bundestag about plans and discussions concerning these drafts at European level.

At the centre of Parliament’s participation in European Union affairs is the examination of EU proposals by the Bundestag’s committees: proposals are discussed by a lead committee and usually also by other committees. As EU items undergo a constant process of amendment in the European legislative process, it is not uncommon for the committees to deliberate on them several times, from the initial referral of the original document until the final decision is taken on the draft by the Council and the European Parliament.

The deliberations in the House of Representatives can be concluded by the committee responsible for the EU item issuing a recommendation for a decision to the plenary. The plenary then adopts a decision (“opinion”) on the basis of the recommendation. An opinion can also be adopted by the Bundestag on the basis of a motion tabled by at least one parliamentary group. The Bundestag can deliver an opinion to the Federal Government on all EU proposals. Before the Federal Government takes action regarding EU projects under Section 3 of the EUZBBG, it must give the Bundestag the opportunity to deliver an opinion (Section 9 (1), first sentence, of the EUZBBG). If the House of Representatives delivers an opinion, the Federal Government must use it as the basis for its negotiations at European level (Section 9 (2), first sentence, of the EUZBBG). In the case of opinions relating to a legislative act, the Federal Government must invoke at European level the requirement of prior parliamentary approval if one of the main interests expressed in the decision of the Bundestag cannot be asserted (Section 9 (4), first sentence, of the EUZBBG). The Federal Government has the right to deviate from the Bundestag’s opinion if there are compelling reasons relating to foreign or integration policy for doing so.

In addition, the House of Representatives can, pursuant to Article 45 of the Basic Law, empower the Committee on the Affairs of the European Union to exercise its participatory rights vis-à-vis the Federal Government and the institutions of the European Union.

Provision of comprehensive information from the Federal Government to the Bundestag

The German Federal Government is obliged to notify the Bundestag comprehensively and at the earliest possible opportunity of developments in the European Union (Article 23[2] Basic Law in combination with Sections 3 and 4 of the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union).

The German Federal Government is, in particular, obliged to forward all Commission proposals for European Union regulations and directives to the Bundestag, inform the Bundestag about the plans for and deliberations on these pieces of draft legislation at the European level and explain its own standpoint in the negotiations as well as the positions of the other Member States. Subsequent documents that provide information about the further progress of the deliberations in the Council bodies are to be forwarded to the Bundestag in a similar fashion. Furthermore, within a period of five sitting days after an EU item has been transmitted to parliament, the German Federal Government must draw up a written explanatory report setting out the main impact of the EU proposal, its political significance, the German interest in the project, its compatibility with the principle of subsidiarity and other relevant issues. The departmental note is to be updated when the circumstances change significantly or there are major developments in the negotiations. It must also be supplemented with oral statements if this is requested by the committees concerned.

The (German) Responsibility for Integration Act

In the wake of the (German) Federal Constitutional Court’s judgment of 30 June 2009 on the ratification of the Treaty of Lisbon, the Bundestag received additional participatory and decision-making rights in EU affairs as a result of the Responsibility for Integration Act adopted in September 2009. Under this Act, the Federal Government can, in the case of specific EU proposals which fall within the scope of the Bundestag’s special responsibility for integration, only take final action in the Council on the basis of a law passed beforehand, or of a decision taken or instructions issued by the Bundestag.

The (German) Responsibility for Integration Act also contains provisions relating to the subsidiarity objection and action (Sections 11 and 12 of the Act). Under the principle of subsidiarity, the EU may act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level (Article 5 (3) of the Treaty on European Union). In accordance with Article 6 of the second protocol to the Treaty of Lisbon, the national parliaments can, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, state in reasoned opinions why they consider that the draft in question does not comply with the principle of subsidiarity. If a majority of the national parliaments conclude in their reasoned opinions that the draft is incompatible with the principle of subsidiarity, the draft may be rejected by the Union legislator (the Council and the European Parliament). Section 12 of the Responsibility for Integration Act in conjunction with Article 8 of the second protocol to the Treaty of Lisbon also gives the Bundestag the possibility of bringing a subsidiarity action before the European Court of Justice.

The German Permanent Representation in the European Union

The Permanent Representation of Germany to the European Union tries to communicate German interests in the European Union and to promote the European perspectives and iniciatives in Germany.

The German Permanent Representation has around 190 employees. It is headed by the Permanent Representative to the European Union. It divides into three main departments – politics, economics and finance – as well as a range of specialized divisions (Environment, Food, Research, Education, etc.) that together cover the whole range of European policy.