Judicial Safeguarding of the Federal System

The ‘Eternity Clause’

The federal structure of the German state is protected against (over-)dilution or even abolition by a constitutional provision which is considered to be the highest-ranking in the Basic Law: amendments to the Basic Law ‘affecting the division of the Federation into Länder’ and ‘the participation on principle of the Länder in legislation’ (as well as the principles of democracy and of human rights protection) are ‘inadmissible’ under Art. 79/3.

Federal Comity

The second outstanding legal protection of the federal system is implied in the principle of federal comity or loyalty (Bundestreue). This refers to the basic obligation by which all components of the federation are bound together. The Federal Constitutional Court applied the principle in one of its earliest decisions [ BVerfGE 1, 299 (315).] and thus made it a legal standard, obliging both the Federation and the Länder to conduct their affairs in a manner ‘friendly to the idea of federation’ (bundesfreundliches Verhalten). The principle covers the entire fields not only of federal-Länder but also of Länder-Länder relations and it governs not only the substance but also the style of conduct. One of its constitutionally most relevant expressions was the dictum of the Court that ‘a federal state can exist only if the federation and the Länder in their relations to each other take into account that the standards under which they make use of formally existing competences are governed by mutual consideration’. [ On federal ‘comity’, see further in Philip Blair and Peter Cullen, ‘Federalism, Legalism and Political Reality: The Record of the Federal Constitutional Court’, in C. Jeffery (ed), Recasting German Federalism , op.cit.] The effects of the principle are not, therefore, restricted to the legal sphere. In addition and, perhaps, even more so, they refer to political conduct in negotiations undertaken under the compulsion to arrive at solutions which do not violate or weaken the federal concept as such. The lines from here to the observance of subsidiarity as well as of solidarity (‘bündisches Einstehen füreinander’ in the terms of the German Constitutional Court) would appear to be obvious. The fact that these lines are, nevertheless, always at risk of being disregarded does not make the principle as such redundant. On the contrary, it emphasises its necessity.

The Selection of Federal Judges

The third and institutionally organised safeguard of federalism in Germany is embodied in the fact that the Länder, through the Bundesrat, have a strong share in the powers of appointment of federal justices. According to Art. 94 of the Basic Law, half of the in total sixteen justices of the Federal Constitutional Court are to be elected by the Bundestag ‘and half by the Bundesrat’. The Federal Cabinet does not have a formal say in this although, however, informal political contacts concerning the selection process do, of course, precede the plenary session in which the election takes place whenever it is the Bundesrat's turn to fill a vacancy, for which it needs a two-thirds majority. A procedure similar to the selection of Constitutional Judges applies for the appointment of justices on the benches of all other Federal Courts. All are subject to selection by a Joint Committee equally composed of members of the Bundestag and representatives of the Länder (though for these positions two-thirds majorities are not required in that committee, unlike the case of the special procedures in both chambers which govern the election of Constitutional Justices).

© Friedrich Ebert Stiftung | technical support | net edition fes-library | Juli 1999

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