The Bundesrat: Federal Council and Länder Representation
The Bundesrat (Federal Council) is the constitutional organ through which the sixteen Länder participate in federal legislation and administration. Regulated by Articles 50–53 of the Grundgesetz, the Bundesrat is a permanent constituent body of the federal legislature, distinct from the Bundestag, composed not of elected representatives but of members of the Land governments. It embodies the federal principle in the German constitutional order, ensuring that the Länder have a direct voice in federal lawmaking and European affairs.
Composition and Membership
The Bundesrat comprises members of the Land governments that appoint and recall them (Article 51(1) GG). Each Land has between three and six votes depending on its population: up to two million inhabitants — three votes; two to six million — four votes; six to seven million — five votes; over seven million — six votes. This allocation gives smaller Länder a proportionally greater voice than their population would warrant, balancing the federal principle against the democratic principle. Votes must be cast as a bloc by each Land delegation, reflecting the Land government’s unified position. Abstention counts as a no-vote. The Bundesrat currently has 69 voting members. The President of the Bundesrat is elected annually by rotation among the Länder, serving as the deputy of the Federal President (Article 57 GG) and convening the plenary sessions.
Legislative Functions
The Bundesrat’s legislative role varies depending on the type of statute. Objection statutes (Einspruchsgesetze) require only a simple majority of the Bundesrat to reject a bill passed by the Bundestag, but the Bundestag may override the objection with a two-thirds majority. Consent statutes (Zustimmungsgesetze) require the Bundesrat’s express approval, giving it an absolute veto. Approximately 35 to 50 per cent of federal legislation requires Bundesrat consent, including statutes affecting Land finances, administrative procedures, territorial boundaries, and constitutional amendments. The distinction between consent and objection statutes has been a recurring source of constitutional litigation, with the Federal Constitutional Court generally favouring a broad interpretation of the consent requirement in its Mitbestimmungsgesetz and Altenpflegegesetz decisions.
The Mediation Committee
When the Bundesrat rejects a bill, a Mediation Committee (Vermittlungsausschuss) composed of 16 Bundestag members and 16 Bundesrat members is convened to negotiate a compromise under Article 77(2) GG. The Committee may propose amendments that are then voted on by both chambers. If the Committee fails to reach agreement or if its proposal is rejected, the bill fails in the case of consent statutes. For objection statutes, the Bundesrat may still object, subject to override by the Bundestag. The Mediation Committee is the central institutional mechanism for resolving legislative conflicts between the federal and Land levels, functioning as a permanent conference committee in the German bicameral system.
Role in EU Affairs
Article 23 GG and the Act on Cooperation between the Federation and the Länder in EU Affairs (EUZBLG) give the Bundesrat substantial influence over German positions in European Union decision-making. When EU legislative proposals affect the legislative competences, administrative procedures, or financial interests of the Länder, the federal government must obtain the Bundesrat’s opinion and give it decisive weight in the Council of Ministers. The Integrationsverantwortung doctrine developed by the Federal Constitutional Court in the Lisbon decision requires the Bundesrat to participate in decisions concerning the transfer of sovereign powers to the EU, ensuring that Land interests are protected in the integration process.
Administrative Oversight
The Bundesrat oversees the federal executive through its participation in federal administration. Under Article 84 GG, statutes requiring Länder administration of federal laws must obtain Bundesrat consent. The Bundesrat also participates in the promulgation of legal regulations (Rechtsverordnungen) that require its approval, and it must consent to general administrative regulations issued by the federal government. The Bundesrat elects half of the judges of the Federal Constitutional Court and participates in the election of other federal judges.
Constitutional Position
The Bundesrat is not a second chamber in the classical parliamentary sense. It is a continuous constitutional organ with permanent membership, lacking the power of self-dissolution and not subject to dissolution by any other body. Its members are bound by instructions from their Land governments, distinguishing it from the free mandate enjoyed by Bundestag members. This structure ensures that Länder interests are represented authentically rather than through party-political mediation, though in practice the Bundesrat’s deliberations are often influenced by party-political considerations, particularly when the federal government and the majority of Land governments are controlled by different political coalitions.