• The Three Levels System of Intergovernmental Relations
  
  • The ‘Whole State’
  • The 'Federal State'
  • The 'Third Level'
  • The Main Functions of the Three Levels

The Three Levels System of Intergovernmental Relations

While the Bundesrat mainly embodies intergovernmentalism on the regional level, the practical operation of the federal system as a whole also requires that intergovernmental relations are conducted between all levels of government. This means that the Bundesrat, though the only intergovernmental organ embedded in the Basic Law, is not the only intergovernmental organ in German political practice.

Any attempt to pinpoint and categorise the components of the entire network of intergovernmental institutions, while necessary for the purpose of explanation, is a hazardous undertaking, because these components are all more or less always in communication with each other and are also often linked with each other by organisational mechanisms. Bearing in mind these limitations, three levels, or areas of relationships may be discerned:

• Firstly, there is the level of what is termed the ‘Whole State’ (Gesamtstaat) i.e. the level which comprises institutions in which both the federation and its component parts, the Länder, are represented on terms of equal status. This arrangement of equal status allows no room for majority decision-making. All decisions in this sphere must consequently be arrived at by accommodation and compromise, or must be limited by ‘agreement to disagree’. In addition, decisions taken in this sphere may also require approval in the federal or the Länder legislatures.
• Secondly, there is the level of the ‘Federal State’ (Bundesstaat) i.e. the constitutionally organised structure of interrelationships between the federation and Länder institutions, whose decisions are subject to majority voting rules. The subject-matter of all such decisions must be located within the field of federal competence, or must be subject to federal procedures (as in the case of the ‘Joint Tasks’ in which federal participation takes place in areas of competence originally exercised by the Länder, and in which the federation and the Länder cooperate by virtue of specific agreements).
• Thirdly, there is the level of horizontal coordination between the Länder themselves (i.e. excluding the federation) which in a strict sense is not part of the fields of relations between the federation and the Länder, but without which neither the decisions of the ‘Federal State’ nor those of the ‘Whole State’ could be properly prepared. On this level, the agendas can consist both of federal and Länder matters. In both fields, decisions must be unanimous and they may also require approval in either the federal or the Länder legislatures. This area is commonly known as the ‘Third Level’.

It would go far beyond the limits of this chapter to describe in detail all the intergovernmental networks encapsulated in these three groups, so the following merely seeks to identify the central institutions working within each of them. [ A fuller account of these networks is given in Uwe Leonardy, ‘The Working Relationships between Bund and Länder in the Federal Republic of Germany’, in C. Jeffery, P. Savigear (eds), German Federalism Today , Leicester University Press, Leicester (1991).]

The ‘Whole State’

At the level of the 'Whole State’, the ‘peak’ institution is the Conference of the Heads of Governments of the Federation and the Länder. These are Conferences held between the Federal Chancellor and the Minister-Presidents/Governing Mayors of the Länder in a more or less regular sequence of roughly every four months. Their legal basis is set out in the Standing Orders of the Federal Government. [ § 31.] They are preceded and prepared by Conferences of the Head of the Chancellor's Office with his colleagues in the Cabinet Offices of the Länder.

In addition, a second sub-group of coordinative institutions comprises the top-level machineries of the political parties, among them in particular the institutionalised Conferences of Party Leaders in the Bundestag and the Länder Legislatures, which are partly assisted by permanent staffs. Also, the party executive committees or presidiums at the federal level, assisted by the party headquarters, play a prominent role in the handling of Federation-Länder business.

The third sub-group of institutions in the field of the ‘Whole State’ is concerned more specifically with inter-parliamentary coordination. It is represented in the Conference of Parliamentary Presidents of the Federation and the Länder and its more frequently convened nucleus, the Conference of Presidents of Länder Legislatures. Its meetings are also prepared by senior officials, the clerks or ‘directors’ of the parliaments.

The 'Federal State'

At the level of the ‘Federal State’ the Bundesrat is, of course, at the centre of the structure. As pointed out already, all of its plenary business is prepared by a system of numerous, highly efficient select committees, which sit every third week and submit their recommendations to the plenary session which follows two weeks after the end of the committee week. The preparation of their meetings, minute-taking and the drafting of their recommendations to the plenary are the main tasks of the Secretariat of the Bundesrat. This is headed by a Director, who assists the President of the Bundesrat in preparing for and presiding over the plenary session held on every third Friday.

The Permanent Advisory Council, composed of the Plenipotentiaries of the Länder, formally advises the President. However, as he rarely ever participates in the weekly meetings of the Council (being preoccupied by his primary function as a Minister-President or one of the Mayors of the City-States) the Council in practice manages the political business of the Bundesrat together with the Director. It also has the important function of receiving regular information on Federal Cabinet meetings conveyed to it by the Minister of State in the Chancellor's Office in charge of the relations between the Federation and the Länder.

In cases of conflict between the Bundesrat and the Bundestag, the Committee of Mediation comes into play. This constitutional organ (Art. 77/2 of the Basic Law) consists of sixteen representatives of the Bundesrat (one for each of the Länder) and the same number of members of the Bundestag. In order to make compromise possible on its recommendations, its Bundesrat members (all of cabinet rank) are not subject to instructions from their Länder Cabinets as they are in the Bundesrat itself. To ensure the passage of the compromises worked out by the Committee, it also has the power to rule in its recommendations that the Bundestag and Bundesrat can only vote on the whole package of recommendations and thus cannot reject specific parts of the compromise package. [ Standing Orders of the Committee of Mediation; in: Handbuch des Bundesrates (see note 3), pp. 154 et seq.]

Within this network of bodies in and around the Bundesrat, the Missions of the Länder to the Federation act, in effect, as the ‘spiders in the web’ for their respective Länder, and in this respect they can justifiably be termed as the nucleus of the working relationships between the Federation and the Länder. In most cases their civil servants staff the Bundesrat committees for their respective Land. In addition, the Missions also serve as the overall liaison institutions between Land and federal ministries and between each other. Furthermore, they report back to their Land capitals on all important or otherwise specifically relevant political and committee business in the Bundestag. For this purpose their civil servants have the constitutionally guaranteed right of access to all Bundestag plenary sessions and committee meetings (Art. 43 of the Basic Law).

The 'Third Level'

On the ‘Third Level’ of horizontal cooperation among the Länder themselves, the Conference of Minister-Presidents is the highest ranking of the institutions. It meets formally once a year, but convenes in practice almost monthly and always before the Conferences of the Länder Heads of Government with the Chancellor. The chair alternates between the Länder and the Conferences are prepared by meetings of the Heads of the Länder Cabinet Off ices.

One step below this level are the conferences of equivalent ministries from different Länder whose departmental responsibilities cover the same area of policy (e.g. interior affairs, justice and so on). These are staffed and prepared partly by the Bundesrat committee secretariats and partly (as e.g. in the case of the Conference of Ministers of Housing) by organisational units of their own, which may be attached to one of the Missions of the Länder. The Permanent Conference of Ministers of Education and Science is assisted by a secretariat of its own outside the Bundesrat structure and its surrounding institutions.

The Main Functions of the Three Levels

This then is, very roughly sketched, the institutional structure of intergovernmental relations in the three levels of the German federal system. The functions of these three levels are, in summary:

• mutual consultation and cooperation in all fields, but in particular in overlapping fields of competence on the level of the ‘Whole State’
• coordination and preparation of voting, and finally voting itself, on legislation on the level of the ‘Federal State’ and
• coordination not just in the preparation of legislation but also (and sometimes primarily) on matters of administration on the ‘Third Level’.

In evaluating these functions, the traditional categories of ‘vertical and ‘horizontal’ intergovernmental relations are inadequate for an accurate description of the German system. Rather, the analogy of a triangle would be more appropriate. A vertical line from the apex of the triangle to the base-line would depict the ‘Whole State’, the triangle as a whole the ‘Federal State’, and the horizontal base-line the coordination between the Länder on the ‘Third Level’.