Sven Reckewerth*

THE LEGISLATIVE BODIES OF THE FEDERAL REPUBLIC OF GERMANY

INTRODUCTION

The constitutional structure of the Federal Republic of Germany is characterised by the existence of two separate legislative bodies at the federal level, the Bundestag (Federal Parliament) and the Bundesrat (Federal Council). In academic and newspaper articles in English-speaking publications these two organs are frequently referred to as the "Upper House" (Bundesrnt) and "Lower House" (Bundestag) of Parliament. These usages are potentially misleading because they suggest that the (federal) parliament is divided into two chambers or houses, each constituting the political forum for a separate section of the German people. In reality, only the Bundestag constitutes the federal parliament', and it is a single-chamber organ to which delegates are elected representing the entire population'.

* Fellow in German Law, The British Institute of International and Comparative Law, London

1 In the German sense of the word, "parliament" (Parlament) has a narrower meaning than "legislature". It refers only to the legislative organ in which the people are represented (Bundestag). 2 Art. 38 (1) BL (BL = The German Basic Law of May 23th 1949, English translation in: FEDERAL REPUBLIC OF GERMANY, DOCUMENTS ON DEMOCRACY IN THE FEDERAL REPUBLIC OF GERMANY. ( 2nd edn., FRG Press and Information Office, Foreign Affairs Division): "The Members of the German Bundestag shall be elected... They shall be representatives of the whole people; ..." Art. 38 (2) BL: "Anybody who has reached the age of eighteen is entitled to vote; anybody of majority age is eligible for election." Consequently, the Bundesrat is not a second chamber of the federal parliament but a constitutional organ in its own right, and its function is quite different from that of a parliamentary chamber. The Bundesrat comprises of representatives of the Lander (State) governments at the federal level (not that of the people) and hence reflects the fact that Germany is a federal state. Therefore, the Bundesrat is the organ through which the Lander participate in the legislative process, and its members are not elected but appointed. This article intends to describe in some detail the nature of both the Bundestag and the Bundesrat and their respective functions in the process of enacting federal legislation.

1 THE BUNDESTAG

The position of the Bundestag as the parliament of the German people is the consequence of the principle of representative parliamentary democracy. This principle is entrenched in Art. 20 (2) of the Basic Law which states:

All public power emanates from the people. It shall be exercised by thef/!� people�o�/� through�roM�/! elections�c�o/M and�M� referendar�r�n� anda� �byy specific�p�C!/7C legislative, executive and judicial bodies.

This principle embodies the idea that the political will of the people is expressed by the parliament which constitutes the organ in which the people is represented. The Bundestag is the only federal constitutional body which derives its legitimacy from direct elections. As a result, it is the primary forum for political argument necessary for the shaping of the will of the people.3 The most important function of the Bundestag is the legislative function including budgetary powers. The Bundestag also has a controlling function in relation to the executive branch; for example, it is entitled to institute investigative committees. In addition, it has a creative function, as it creates further constitutional organs such as the Federal Government.

3 C. DEGENHART, STAATSRECHT I. (7th edn., Heidelberg 1991),p. 164.