Year XXVI, 1984, Number 1 - Page 51



In any discussion on institutional reform of the Community one of the most important and sensitive aspects is the future of the Council. It is through the Council that the governments of the Member States participate in the Community’s decision-making process, and it is the composition, procedures and powers of the Council that determine the degree of autonomy of Community policies from national governments and the ability of the Community to do more than settle for overdue compromise based on the lowest common denominator of national interests. In short, the whole concept of national sovereignty is in question here, and the effectiveness of any reform of the Community will depend on how this is dealt with.
The European Parliament’s Committee on Institutional Affairs, preparing the proposal for a new Treaty on European Union, examined many options ranging from proposals[2] for a «Chamber of States» elected by national parliaments to proposals aimed at reinforcing the current structure and powers of the Council. Finally it opted for proposals that would make only a few changes to the existing system, hoping that these would be small enough to be politically realistic yet important enough to represent a significant improvement. In doing so it adopted an institutional model that is not far removed from that of the Bundesrat in the Federal Republic of Germany, a model that must have been in the minds of many Members of the Committee when they discussed it.
The Bundesrat bears a striking resemblance in its composition, working methods and procedures to the Council, even as it exists at present. The purpose of this article is to examine these similarities[3] and identify the differences that allow the FRG to operate as an effective federal system, while the Community is bogged down in some of the worst features of intergovernmentalism; and to assess whether the changes proposed by the European Parliament would be sufficient to achieve a lasting improvement.
The Bundesrat: structure and procedures.
Under the FRG constitution (Basic Law) the Land (State) governments[4] are not only responsible for their own areas of competence (education, police, etc.), but also for the implementation and execution of federal laws. For this reason, and also because the fathers of the constitution hoped to avoid the emergence of a strong, central government, the Bundesrat was recreated as an organ through which Länder governments «participate in federal legislation and administration» (Article 50 Basic Law). It is not a proper second chamber, and not part of «the Parliament» divided into two chambers as in most bicameral parliamentary systems. However, it is an organ of the federation, the members of which are Land Ministers, and not an organ of the Länder. Therefore it is not used for coordinating Land policies, which is done through standing conferences of Länder ministers (eg. the conference of culture ministers which has a standing secretariat as large as that of the Bundesrat). In the European Community, the Council is also supposed to be a Community institution, acting within a fixed legal framework. However, the two functions of deciding on common policies in some areas and coordinating separate policies in others are not separated: the Council does both. The only formally distinct «standing conference» to coordinate national policies is the Conference of Foreign Ministers dealing with European Political Cooperation, and their separation is due to entirely different reasons.[5]
Just like the Council, the Bundesrat is composed of ministers representing their government. Similarly, voting takes place by a weighted majority: five votes for large Länder,  four for medium size, and three for small. These votes must be cast as a block. In theory, these votes correspond to the number of seats each Land has in the Bundesrat, but in practice they can be cast by a single minister. Often, therefore, only one minister (the relevant one, according to the subject under discussion) is present. Any minister of a Land government may represent his/her Land in the Bundesrat though no more than an equivalent number to the number of votes available to the Land can sit at anyone time as members: any surplus number are deemed to be assistants.
The Bundesrat sits about 15 times a year – every three weeks – normally for one day (Friday). Heavy agendas are dealt with quickly. They are prepared by a meeting of Land officials on the Wednesday before each sitting, who note on which points there is general agreement and which need further discussion. Only the latter are discussed during the sitting. (This is very similar to the COREPER - Council system of the EC with its A points and B points). In the plenary, only one person from each Land (the relevant minister)speaks, and usually only those from Länder concerned with a problem (e.g. Berlin is not likely to speak on steel). Debates are therefore short and to the point. They are open to the public (although secret sessions are possible, there have only been two since 1949), but rarely televised. «Question time» to the federal government exists in theory, but has only been used six times since 1949. Decisions in the Bundesrat are not taken by simple majority of votes cast but by a majority of votes possible. Most of its practices date from the old Bundesrat established in 1871.
There are no political groups in the Bundesrat. Members sit and act according to their Land just as in the EC Council they sit and act according to national interests. Länder with different political complexions often vote together. Saarland (CDU, FDP) and Nord-Rhein-Westphalen (SPD) for instance, often vote together in defence of the steel industry, or Bremen (SPD) and Niedersachsen (CDU) on shipbuilding. Only on very important political questions do party lines emerge[6], and these are complicated by the fact that different coalitions exist in different Länder, and Land parties are anyway not always in agreement with their corresponding Federal parties. In this way, the Bundesrat genuinely represents regional rather than party interests, unlike the Chamber of States in many other federal systems. This again makes the Bundesrat comparable to the Council, in which party or ideological divisions rarely arise: national interests are the main feature.[7]
The Bundesrat has 14 specialised Committees. Each one has 11 members – one for each Land, which can have the consequence that the political majority is different from the plenary. Although Land Ministers or Prime Ministers may sit on the Committees, they can send officials to replace them. This results in Committees being used for detailed scrutiny by staff of Land ministries in the same way as Council working parties and COREPER scrutinise Commission proposals. Länder bureaucracies have, through this and other mechanisms, become increasingly involved in the preparation and implementation of federal laws.[8]
The Bundesrat’s own staff is very small (120 in 1981 compared to 100 in 1949!), as research work and preparation is carried out by the staff of the relevant ministry in each Land. Only in foreign affairs do the Bundesrat staff play a major preparatory role, as the Länder have no ministries responsible for this area.
Another parallel with the Council is that Bundesrat members may attend and speak at Bundesrat plenary and committee meetings and Bundesrat members may address questions to them.
From the above, it can be seen that in its form the Bundesrat corresponds remarkably to the Council. Let us now turn to examine its powers and responsibilities.
The Bundesrat: powers and responsabilities.
The Bundesrat has two main tasks: participation in the federal legislative process (including budgetary matters and ratification of Treaties) and supervision of the executive. In the former, it is in a different ball game to the Council of Ministers of the EC in that it shares power with the Bundestag, which usually has the final say, whereas the Council only effectively shares power with the Parliament on budgetary matters. In the latter, we can again find some striking similarities. Let us examine each task in detail.
The Federal German legislative process is as follows: all bills go to the Bundesrat before they are introduced into the Bundestag. At this stage, the Bundesrat may state its position in the form of a resolution which is passed on to the Bundestag. After the Bundestag has adopted its position, the bill comes back to the Bundesrat for a second reading. Here the power of the Bundesrat varies according to two categories of bill: (i) Bills concerning taxes, international Treaties or affecting the Länder directly require the consent of the Bundesrat, that is, it has a right of veto and a bill will fall if it is not accepted by both Houses. (ii) For all other laws, the Bundesrat can only make objections which can be over-ruled by the Bundestag by a majority of its members. If the objection is made by a two-thirds majority in the Bundesrat, then a two-thirds majority is equally necessary in the Bundestag. The Basic Law, on occasion interpreted by the Constitutional Court,[9] defines which bills come under each category. Since 1969, about 55 percent of all bills required Bundesrat consent.[10]
When the opinions of the Bundestag and Bundesrat differ, either side may invoke a meeting of a Conciliation Committee (Vermittlungsausschuss). This is composed of 22 members: one from each state from the Bundesrat side and an equal number from the Bundestag: just like the current European procedure. Chairmanship rotates every three months between the Bundestag and Bundesrat. Whatever the particular majorities, the Conciliation Committee has to negotiate compromises acceptable both to the Bundestag and the Bundesrat, if legislation under the first of the two categories mentioned above is to be adopted.
The meetings of the Conciliation Committee are strictly confidential and no reports of its proceedings are published. It is felt that this is the key to the success of the Committee, which in an overwhelming majority of cases[11] reaches a compromise acceptable to both Houses. The fact that its members are usually experienced politicians is also important. Nevertheless, it is often necessary for a bill to go back to the Conciliation Committee two or three times before it is acceptable to both Houses, and there is no time limit on the work of the Committee.
The role of the Bundesrat in supervising the executive branch stems from the fact that federal law is usually applied and administered by the Länder, just as Community law is applied by the Member States. Article 80 of the Basic Law specifies that for most statutory instruments, the federal government may act only with the consent of the Bundesrat. Furthermore, the government often tends to rely on advice from Bundesrat committees as it has no direct experience in administering certain sectors. Although one would hesitate to push the analogy too far, there is clearly a parallel here with the numerous articles in the Community treaties requiring Council approval for what is basically an executive measure, and those which allow the Commission to act only with the approval of the Council, or indeed the procedure that allows the Council to step in when it disagrees (cf. management committee procedures). It is not unprecedented that governments can only act in their executive capacities under very strict control of one branch or another of the legislature. This does not as such turn this branch into a joint executive, but it does have important consequences as to the balance of power between the different elements – and therefore the different interests – in the system. The Community system permits a very strong control over executive matters by the Council – and therefore national governments – but the difference is essentially one of degree (though nevertheless important).
Lessons for the Community.
From the above comparison, both of form and of content, of the Bundesrat’s role in the governmental system of the FRG with that of the Council in the EC, one can dismiss a number of factors frequently cited as the cause of paralysis in Community decision-taking, and suggest that only two or  three changes in the Community’s institutional system would suffice to transform it into something similar to the German model, and thus into an effective decision-taking system.
Factors often cited as a cause of paralysis include the fact that the Council is composed of ministers representing the government of their state; the highly-developed involvement of national civil servants; the obligation to cast votes as a block; and the fact that ministers present constantly change according to the subject under discussion. The Bundesrat example shows that none of these are in themselves obstacles to decision-taking (though they may be criticized for other reasons).
The two or three changes that would be necessary are: (i) majority voting in the Council on all matters within given time limits; (ii) the sharing of legislative (including ratification and budgetary) power with the Parliament («co-decision»); and, though arguably to a lesser extent, (iii) the strengthening of the Commission’s executive autonomy.
Of course, these purely institutional changes in themselves would not be enough to transform the Community into a classic federal state. For this a large increase in its competences, finances and the range of its activities would be necessary. Indeed, the Parliament’s proposals for a new Treaty concentrate as much on these aspects as on the purely institutional matters. However, our concern here is simply with the decision-taking procedures, (the effectiveness of which is arguably a pre-condition for enlarging competences anyway).
Majority voting for all matters in the Council would be perhaps the most important step forward in allowing the Community to work more effectively. The stifling effect of the practice of unanimity has been described in countless articles. Majority voting need not be by a simple majority, as the Bundesrat requirement for an absolute majority shows. In the Community case, a different level of majority might be desired for different subject matters.
Concerning the Community’s legislative process, it would suffice that the assent of the European Parliament be required to adopt Community legislation for the Community to be in a similar constitutional position to that which prevails in the FRG for the first of the two categories of bills (those for which the assent of both the Bundesrat and the Bundestag in necessary). The existing conciliation procedure would in this way be given teeth (lacking at present) as it is up to one side – the Council – to declare it closed and adopt the final position) and applied to all areas.
The procedure used in the FRG for the second category of laws mentioned (those in which the Bundesrat can merely oblige the Bundestag to take a second decision by a higher majority), whilst not without parallel to the Community procedure regarding the non-obligatory part of the budget, would be a far more sweeping change to Community legislative procedure.
The strengthening of the Commission’s executive autonomy would be the third change that would help place the Community in a comparable situation to the FRG. Like the German Federal Government, the Commission is responsible to the «lower» chamber, though it can only be dismissed by a two-thirds majority. Its appointment, however, is not subject to the approval of the European Parliament. It is appointed by the Member States, collectively, and in practice by each one individually as far as their own members are concerned. Clearly, a procedure involving a designation of a genuine collective team and subject to the approval of Parliament would strengthen both the Commission’s independence and its political accountability. This is, however, possibly only of secondary importance to the effect that majority voting and co-decision would have on the Commission: it would be much freer to manoeuvre and to rely on majorities, no longer having to tailor its proposals to the lowest common denominator acceptable to national governments. Similarly, a greater autonomy in deciding on implementing regulations without the constant and detailed reference to Council which characterizes current procedures would certainly be a benefit, but need not go too far, as shown by the above mentioned German provisions[12] for the Federal Government to act in such matters only with the approval of the Bundesrat.
The argument that these three measures – majority voting, co-decision and, to a lesser degree, a strengthening of the executive – would suffice to transform the Community’s decision-taking procedures can be illustrated by considering what the German situation would be if Community procedures applied in these matters. Let us imagine that the final decision on all legislation in the FRG were taken by the Bundesrat, with the Bundestag only being able to give its «opinion»; that there was no time-limit to discussions, and the Länder governments had a “gentleman’s agreement” to take decisions in the Bundesrat only by a unanimous vote. In such a situation, the Federal Government would immediately become the prisoner of the Länder governments – all the more so if it was appointed by them – and be able to act only at the speed of the most reticent Land. Power would have reverted, de facto, to the Land governments even in those areas subject to Federal jurisdiction. Elections to the Bundestag would offer the voter little chance to influence policy. The FRG would not be the important power it is to-day, but a collection of squabbling States.
The European Parliament’s proposals.
Has the European Parliament’s proposal for a new draft Treaty made provision for changing the Community structure along the lines that an analysis of the Bundesrat model would indicate as being necessary?
On the basis of the two or three changes suggested above as being sufficient to transform the Community into a model comparable in its effectiveness to that of the FRG, it can be seen that all three are included in the Parliament’s proposals. Indeed they are the essence of its proposals, as the other institutional changes suggested are of smaller significance.
First, majority voting within time limits is laid down. Although Member States would be allowed for a transitional period to postpone voting by invoking a vital national interest, this would cease after ten years, with the exception of political and diplomatic aspects of foreign policy. The provision for time limits would effectively preclude the possibility of Member States again reaching a “gentleman’s agreement” not to put a matter to a vote when a Member State has reservations.
Second, co-decision is required for the adoption of legislation. The details of the procedure differ somewhat from those of the Bundesrat-Bundestag procedure for laws requiring the assent of the Bundesrat, but the essential characteristics are the same: the assent, or at least, non-opposition, of both houses and the provision of a conciliation committee to negotiate compromises. Where conciliation fails, however, procedures differ substantially: in the FRG system the conciliation process continues until a compromise is reached acceptable to both sides. In Parliament’s draft Treaty a second reading is foreseen in which Parliament may approve the text as adopted by Council or, by absolute majority, adopt amendments to it proposed by the Commission. This text can then be rejected by Council by a qualified majority. This complex set of provisions implies that either Council and Parliament finally agree (in which case we still have co-decision) or else that a text on which Parliament and the Commission agree can be adopted if supported by a minority in Council large enough to prevent it rejecting the text by a qualified majority. In this last case we no longer have real co-decision, but it is surrounded by sufficient safeguards, and at the end of a long enough procedure, to be regarded as exceptional.
Thirdly, the autonomy of the Commission as the executive body is strengthened. It is specified that implementing regulations and decisions shall be determined by the Commission and merely notified to Council and Parliament. We have seen above that this is not strictly necessary, as the operation of Article 80.2. of the FRG Basic Law shows, though it is certainly desirable to eliminate some of the excesses of current Community procedure in this respect. More important are the proposals for the appointment of a new Commission. Its normal term of office would be for five years and a new one would be appointed after each European election by a procedure involving the designation of its President by the European Council, his/her constitution of a team and programme, and a vote of confidence by the Parliament allowing it to take office. Such a procedure would link the formation of a new Commission to the European elections and require it to secure a Parliamentary majority to take office. The role of “Head of State”, in designating the President of the Commission, is played here by the European Council. The President of the Commission has considerable freedom to choose his collaborators and allocate portfolios. The procedure differs from that of the FRG in that the vote takes place on the whole team and programme, whereas in the FRG it is only on the chancellor. This would not be substantially different in that the German chancellor must have already made some tacit agreement on his team and programme if he is to secure his vote of confidence. A more substantial difference is the fact that unlike the Bundestag, the Parliament would not be able to vote for its own candidate if it rejects the one put forward by the “Head of State”.[13] This reflects a desire to guarantee a role for the Member States directly, through the European Council, and is an important, though not crucial, difference from the FRG system.
In the main then, Parliament’s proposals for a new Treaty seem to incorporate the three essential changes necessary to allow a European Union to act as an effective, democratic, quasi-federal, decision-taking system. The other institutional changes proposed by the Parliament (designation of a permanent minister to lead each national delegation in Council, designation of Members of the Court of Justice half each by the Parliament and the Council, specification of the task of the European Council, etc.), whilst not without significance, are of secondary importance. Of course, Parliament’s proposals are as much, if not more, about increasing the competences, finances and activities of the Community as they are about improving its decision-taking capacity. Nevertheless, we can assert as regards the latter that, in basing its proposals on the model of the Bundesrat, Parliament is on the right track.
Richard Corbett

[1] The article assumes a knowledge of Community institutions on the part of the reader.
[2] Draft Treaty establishing a European Union, adopted by the European Parliament on 14 February 1984 (O.J. C 77).
[3] The author is indebted to the Bundesrat officials he met on the occasion of a study visit of EP officials in 1981, who provided useful information and explanations. In particular he would like to thank Dr. Ziller, Director of the Bundesrat, Mr. Raderschall, Head of the Bundesrat’s liaison office with the European Parliament, and Dr. Dietlein, Clerk of the Conciliation Committee.
[4] K. von Beyme in The political system of the FRG, Farnborough, Gower, 1982, page 159 notes that when the Basic Law was created «no central power in Germany existed» and «the two existing powers in the country, the Allied Powers and the governments of the Länder», both sought to establish a decentralized system «unimpaired by a central government».
[5] The separation is in any case becoming blurred, e.g. the Solemn Declaration adopted at the Stuttgart Summit on 19 June 1983 referring to «The Council and its Members» for all matters.
[6] See also the analysis in Gerhard Leibholz and Dieter Hesselberger: «Bundesrat und Parteiensystem» in Der Bundesrat als Verlassungsorgan und politische Kraft, Neue Darmstädter VerLag, 1974.
[7] They do arise sometimes, however (e.g. Vredeling directive).
[8] To the extent that some observers consider Bundesrat votes as merely the official sanction given to compromises worked out elsewhere. See J. Frowein, «Bemerkungen zu den Beziehungen des Bundesrates zu Bundestag, Bundesregierung und Bundespräsident» in Der Bundesrat, cit.
[9] See notably the Court’s ruling in 1974, B Verf GE37, 383.
[10] K. von Beyme, op. cit., p. 163.
[11] In less than 10% of all cases was no final agreement worked out (ibid., p. 164).
[12] Basic Law, Article 80.2.
[13] This is possible in the FRG as a last resort, if the candidate put forward has not received an absolute majority. However, if the Bundestag’s own candidate does not himself obtain an absolute majority, the Head of State is not forced to accept him but can call for new elections (Article 63, Basic Law).

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