The most important factors were the insertion in 1993 of a “Europe Article” (Art. 23) into the Basic Law, the Act on the Exercise by the Bundestag and by the Bundesrat of their Responsibility for Integration in Matters concerning the European Union (IntVG), and the new Act on Cooperation between the Federation and the Länder in European Union Affairs (EUZBLG) of 2009.
The Federal Constitutional Court’s “Lisbon decision”
The passing of the IntVG and the EUZBLG in 2009 implemented the content of the Federal Constitutional Court’s “Lisbon decision” on the participation of the Bundestag and the Bundesrat. Further details on this cooperation can be found in the Federation-Länder Agreement of 15 June 2010. In specific terms these norms spell out the Federal Government’s obligation to inform the Länder and their right to participate.
Duty to provide information
The Federal Government informs the Bundesrat fully, as a rule in writing, about all EU proposals. Moreover, the Bundesrat receives a copy of the Federal Government reports to the Bundestag.
This information is complemented by the forwarding to the Bundesrat of reports by the German Permanent Representation to the EU and of Federal Government early-warning reports.
Länder participation in German EU policy varies as follows, depending on the extent to which their interests or responsibilities are involved:
participation in consultations aimed at determining Germany’s negotiating position, if the Bundesrat would have to be involved in a corresponding domestic-policy measure or if the Länder would be competent nationally;
participation by Länder representatives in negotiations, if essential Länder interests are involved;
transfer of negotiating powers to Länder representatives in the case of EU proposals which affect exclusive Länder legislative powers (i.e. education, cultural affairs, radio and television).
Moreover, Bundesrat positions must as a matter of principle be taken into consideration by the Federal Government. The Bundesrat’s views must be given the greatest possible respect if the issue in question is an EU project that primarily concerns matters for which the Länder have exclusive legislative powers or that affect the structure of Land authorities or Land administrative procedures.
Impact of the Lisbon Treaty
The Lisbon Treaty for the first time gives national parliaments, and thus also the Bundesrat, direct powers of participation in EU affairs. The EU has numerous obligations to directly inform national parliaments.
However, the most important new power is the ability to register a “subsidiarity objection” with the EU
bodies before certain legal acts are passed. National parliaments can subsequently bring subsidiarity proceedings before the European Court of Justice.