German Constitutional Tribunal2 BvF 1/02

18 December 2002

IMMIGRATION ACT CASE

LEGISLATIVE BRANCH

• BUNDESTAG (Federal Parliament): its members are elected in federal elections and they are representatives of the whole people of Germany (Article 38.1 Basic Law)

• BUNDESRAT (Federal Council of the State): it represents the sixteen Länder of Germany at the national level

According to article 78 of the Basic Law the constitution requires legislative acts to be passed by both chambers

MEMBERS OF THE BUNDESRAT

not elected, but appointed (and recalled) by the state governments

they must be members of the state government themselves

each Land may appoint a number of delegates corresponding to its respective number of votes

THE VOTING PROCEDURE IN THE BUNDESRAT

• Article 51.3 Sentence 2 Basic Law states: “The vote of each Land may only be cast as a unit[…]”

1- There is no splitting of votes allowed within each state’s

group of representatives. 2-The widespread (but not obligatory) practice that the

representatives of a Land usually reach an informal agreement, appointing one “leading member” within each state’s group to cast the vote for the Land.

WHAT HAPPENED?1 March 2002: the “Immigration Act” was passed by the

Bundestag

22 March 2002: also the Bundesrat approved the “Immigration Act” with an unusual procedure

18 December 2002: the Federal Constitutional Court declared the

new “Immigration Act” void for formal reasons. It found that the Act did not receive a valid majority vote in the Bundesrat.

The Court did not have to deal with any questions related to the content of the Act. It discussed only the constitutionality of the legislative procedure.

POLITICAL FRAMEWORK• The Land Brandenburg was governed by a “grand

coalition” between the SPD and the CDU. Any controversy between them about how to vote in the Bundesrat would result in an abstension

• Rumours had come up that the Federal Government had tried to put pressure on Brandenburg’s Prime Minister Stolpe to ensure a “yes” in order to gain the majority of the states’ votes for the approval of the “Immigration Act”

• Jörg Schönbohm, Brandenburg’s Minister of the Interior and head of the Brandenburg CDU, publicly announced that the CDU would drop out of the coalition if Brandenburg voted “yes” for the Immigration Act.

GROUNDS-774th session of the Bundesrat-

Baden-Wurttemberg AbstentionBavaria NoBerlin YesBrandenburg- Alwin Ziel (Brandenburg): Yes!- Jörg Schönbohm (Brandenburg): No!- President Klaus Wowereit: I hereby state that the Land Brandenburg has not voted unanimously. I refer to Article 51 Paragraph 3 (2) of the Basic Law. It says that the votes of a Land can only be cast as a unit.I ask Prime Minister Stolpe how the Land Brandenburg votes.- Dr. h.c. Manfred Stolpe (Brandenburg): As Prime Minister of the LandBrandenburg, I hereby declare Yes.- (Jörg Schönbohm [Brandenburg]: You know my opinion, Mr President!)President Klaus Wowereit: With that I state that the Land Brandenburgvoted Yes.”

The Brandenburg “yes” permitted to reach the majority of

affirmative votes necessary to allow the “Immigration act” to

pass in the Bundesrat.

…However

Brandenburg had not voted uniformly contrary to the provision of Article

51.3(2) of the Basic Law.

According to Article 93.1 No. 2 Basic Law any Land government can appeal to the Federal Constitutional Court in the event of doubts

regarding the formal or substantial compatibility of Federal law with the constitution

Six Länder brought the “Immigration Act”

before the Federal Constitutional Court, asking the nullification of the Act because

of its formal incompatibility with the procedural provisions of the constitution

PREVIOUS CASE19 December 1949: contradictory votes of two Ministers of the Land North-Rhine Westphalia during the 10th session of the Bundesrat.

→ the then Prime Minister of North-Rhine Westphalia (also President of the Bundesrat)

cast the vote for the Landhowever

the non-uniformity was unintentional, had not been announced in advance and was

surmountable

RULINGof the Federal Constitutional Court:

(18 December 2002)

The “Immigration Act” is void because of its incompatibility with

Article 78* of the Basic Law.

* Article 78 legislative acts have to be passed by both chambers: the Bundestag and the Bundesrat

THE COURT’S REASONING

Two steps:

1. the determination that the Land Brandenburg had voted “Yes” was erroneous

2. since there was no agreement of the Land Brandenburg to the Act, the necessary majority wasn’t reached and the approval of the Act was erroneous too

Reasons why Land Brandenburg vote should not have been counted as a “Yes”:

a) the vote was invalid because it was not cast uniformly

↓ In accordance to article 51.3 No. 2 Basic Law, the votes

of a Land are to be cast uniformly

b) such non-uniformity was not eliminated by the further course of the ballot

WHY?

…Because

1. the President of the Bundesrat had no right to enquire of Prime Minister Stolpe

since such an enquiry took leave from the form of calling on

by Länder (selected with the voting procedure)

the right to enquire ceases to apply if a uniform land will does not exist and cannot be expected to come into being during the ballot

2. the Prime Minister of a Land has no right to overrule the casting of the votes of the other Members of the Land

3. even if we presume the right to enquire of the President of the Bundesrat, the enquiry should have been addressed in a neutral way: calling again the Land Brandenburg, or at least addressing the question also to Minister Schönbohm

↓For all these reasons, the Court found

Land Brandenburg vote invalid and

hence the “Immigration Act” void

THE DISSENTING OPINION of Judges Osterloh and Lübbe-Wolff

1. The contradictory voting of the Land Brandenburg, not only was invalid, but did not constitute an act of voting at all

↓the Land Brandenburg still had its right to

vote

2. In any case, the Land had the right to correct its voting

3. Even though not addressed directly, Minister Schönbohm did have the opportunity to answer to the call for votes

↓the only vote cast after the enquiry is the

“Yes” given by the Prime Minister Stolpe

THE DISSENTING OPINION (2)

REFERENCES:

• German Constitutional Tribunal, 2 BvF 1/02, December 18, 2002

• M. Rosenfeld, A. Sajò (ed. by), Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford, 2012, ch. 27

• N. Arndt, R. Nickel, Federalism Revisited: Constitutional Court Strikes Down New Immigration Act For Formal Reasons, German Law Journal, 2003, Vol. 04 No. 02, pag. 71-89

• F. Becker, The Decision of the German Constitutional Court on the Immigration Act, German Law Journal, 2003, Vol. 04 No. 02, pag. 91-106

THANK YOU FOR YOUR ATTENTION

Marta Dafano & Gloria Resemini