Strasbourg, 1 March/1er mars 2006 CDL(2006)011 Or. Bil. Study No. 335/2005 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) COMMISSION EUROPEENNE POUR LA DEMOCRATIE PAR LE DROIT (COMMISSION DE VENISE) THE ROLE OF THE SECOND CHAMBER IN EUROPEAN STATES LE ROLE DE LA DEUXIEME CHAMBRE DANS LES ETATS EUROPEENS CONTRIBUTIONS BY VENICE COMMISSION MEMBERS CONTRIBUTIONS DES MEMBRES DE LA COMMISSION DE VENISE This document will not be distributed at the meeting. Please bring this copy. Ce document ne sera pas distribué en réunion. Prière de vous munir de cet exemplaire. CDL(2006)011 - 2 - TABLE OF CONTENTS TABLE DES MATIERES Page THE SECOND CHAMBERS OF PARLIAMENT, by Christoph Grabenwarter, Constitutional Court, Vienna, Substitute Member, Austria......................................................................................3 LE SENAT DE BELGIQUE, par Jean-Claude Scholsem, Université de Liège, Membre, Belgique ..............................................................................................................................................7 ROLE OF THE SECOND HOUSE OF THE PARLIAMENTARY ASSEMBLY OF BOSNIA AND HERZEGOVINA, by Cazim Sadikovic, University of Sarajevo, Member, Bosnia and Herzegovina......................................................................................................................................12 THE ROLE OF THE SECOND CHAMBER IN THE CZECH REPUBLIC: THE SENATE OF THE PARLIAMENT OF THE CZECH REPUBLIC, by Eliska Wagnerova, Constitutional Court, Brno, Member, Czech Republic...........................................................................................16 CONTRIBUTION DE LA FRANCE, par Olivier Dutheillet de Lamothe, Conseil constitutionnel, Paris, Membre, France...........................................................................................22 THE SECOND CHAMBER IN GERMANY: THE BUNDESRAT, by Georg Nolte, Member, Germany and Thomas Meerpohl, University of Munich ...............................................................26 THE ITALIAN SENATE, by Sergio Bartole, University of Trieste, Substitute Member, Italy 31 THE ROLE OF THE SECOND CHAMBER IN THE BICAMERAL SYSTEM: THE NETHERLANDS, by Pieter van Dijk, Council of State, The Hague, Member, The Netherlands ...........................................................................................................................................................35 THE ROLE OF THE SECOND CHAMBER (SENATE) IN POLAND’S POLITICAL SYSTEM, by Hanna Suchocka, Embassy of Poland to the Holy See, Member, Poland .............38 THE FEDERATION COUNCIL OF THE FEDERAL ASSEMBLY (RUSSIAN FEDERATION), by Marat Baglay, Constitutional Court, Moscow, Member, Russian Federation ...........................................................................................................................................................42 THE SPANISH SENATE, by Ángel Sánchez Navarro, University Complutense, Madrid, Substitute Member, Spain................................................................................................................45 LE ROLE DE LA DEUXIEME CHAMBRE EN SUISSE, par Giorgio Malinverni, Université de Genève, Membre, Suisse.............................................................................................................49 INTRODUCTION OF A TWO-CHAMBER PARLIAMENTARY STRUCTURE IN UKRAINE, by Olga Kravchenko, Constitutional Court, Kyiv, Ukraine ......................................54 THE SECOND CHAMBER OF THE UNITED KINGDOM’S PARLIAMENT: THE HOUSE OF LORDS, by Jeffrey Jowell, University College, London, Member, United Kingdom ..........56 - 3 - CDL(2006)011 THE SECOND CHAMBERS OF PARLIAMENT, by Christoph Grabenwarter, Constitutional Court, Vienna, Substitute Member, Austria I. Introduction Austria is a federal State composed of nine Laender (Laender). They are represented at federal level by the second chamber of the Austrian Parliament, the Federal Council (Bundesrat). II. Composition Each Land is represented by a certain number of members. This number is determined by the Federal President after each census, which is taken every ten years. The Land with the largest number of citizens has twelve seats, each of the other Laender as many members as corresponds to the ratio of the number of its citizens to that of the most populous Land, the minimum of seats being three. The Federal Council thus has no permanently fixed number of members. Currently it is composed of 62 members. In exercising their mandate the members of the Federal Council are free from outside influences. Like the members of the first chamber (National Council – Nationalrat), they hold what is called a “free mandate”. They cannot be recalled by their provincial Diet (Landtag, provincial legislature) before the end of that Diet’s legislative period. III. Election of Members The members of the Federal Council and their alternates are elected by the Diets on the basis of proportional representation. At least one seat must be given to the party having the second largest number of seats in the Diet or, if two or more parties hold an identical number of seats, to the party that won the second largest number of votes in the last provincial election. The members of the Federal Council need not belong to the Diet which delegates them; they must however be eligible for that Diet. The term of office is the same as that of the provincial legislature, i.e. 5 to 6 years, depending on the Land. The Diets elect a substitute member for each member delegated by them to the Federal Council. This substitute becomes the member’s ex lege successor upon the member’s seat becoming vacant, by his resignation, death or for any other reason. IV. Sessions The Federal Council is permanently in session. Membership of its members is partially renewed at different times on the basis of the returns of the elections to the provincial Diets. Accordingly, the legislative activities of the Federal Council are not broken down into session or legislative periods. Chairmanship in the Federal Council changes every six months in the alphabetical order of the names of the Laender. In each case, the Federal Council is chaired by the delegate placed first on the list of members of the largest party representing the Diet of the Land entitled to CDL(2006)011 - 4 - chairmanship. Following disputed statements of a member due to take the chair in the second half of 2005 this rule was slightly changed. Now the Diet may decide that the Federal Council is chaired by a different representative of that Land holding a seat of the same party. The person chairing the deliberations is President of the Federal Council. Every six months, the Council elects from among its members two Vice-Presidents, at least two secretaries and two whips, who, together with the President himself, form the Presidium of the Federal Council. Like the National Council, the Federal Council has standing committees entrusted with preliminary deliberations on the subject matters before the Council. Members of the Federal Council that belong to the same political party may join forces to form a parliamentary group, the minimum number required for recognition being five members. Members not belonging to the same political party may form a parliamentary group only with the approval of the Federal Council. The President and the Vice-Presidents of the Federal Council as well as the chairmen of the parliamentary groups form the Conference of Presidents of the Federal Council, which assists the Presidents in an advisory capacity. The President convokes the session of the Federal Council after consultations with the Conference of Presidents. On demand of a qualified minority of the members of the Federal Council or on demand of the Federal Government however, the President is obliged to convoke a session. Members of the Federal Government are authorised to take part in any of the Federal Council’s deliberations along with their committees. They have the right to be heard in the Federal Council whenever they request it. The heads of government of the Länder have the right to take part in Federal Council debates. They have at their request the right to be heard each time with regard to issues relating to their Land. V. The Competencies of the Federal Council 1. Legislative initiative The Federal Council has the right to introduce the proposal of a bill in the National Council. However, such proposals are very rare in practice. 2. Legislative procedure In general, the position of the Federal Council is not very strong. It may postpone the promulgation of a bill for a few weeks. However, it may, leaving aside a few exceptions, not hinder the adoption of laws on federal level. It does however not have a right of amendment. Every enactment of the National Council shall without delay be conveyed to the Federal Council. In the standard case the Federal Council must convey an objection to the National Council in writing within eight weeks of the enactments arrival. If the National Council in the presence of at least half its members once more repeats its original vote, this shall be authenticated and published. If the Federal Council resolves not to raise any objection or if no reasoned objection is raised within the deadline of eight weeks , the enactment shall be authenticated and published. - 5 - CDL(2006)011 The Federal Council has no claim to participation in certain matters relating to budgetary or financial affairs such as the Federal finance law or the disposal of Federal property. Constitutional laws (or constitutional