EnglishThe Long Road, Part II - The German Legislative Process
In our last article, we used the Whistleblower Directive to shed light on the European legislative process. As explained, a directive is a standard that must first be converted into national law by the member states. Therefore, in this part of the two-part series, the German legislative procedure will be explained in more detail.
Distribution of competences
The basic principles of the legislative process are determined by the Basic Law. In Germany, laws can be enacted either by the federal government or by the states. In principle, only the Länder are authorized to legislate. However, the Basic Law recognizes exceptions. The Basic Law grants the federal government exclusive powers, which means that only the federal government may enact laws for certain areas of life, or competing powers. Competing legislation means that the Länder may only act if the Federation has not exercised its right to legislate.
Frequently, matters requiring regulation touch on several competences. In such cases, either the federal government or the state must be responsible for their entire legislative process. However, minor encroachments on foreign competences are permissible if these only concern the preparation or implementation of a regulation. Lawyers then speak of annex competence.
The draft of the Whistleblower Protection Act concerns, for example, labor law, business law and criminal law. The federal government has legislative competence in all these areas. It is therefore responsible for enacting the Whistleblower Protection Act.
Right of initiative
The federal legislative process takes place between three state institutions: the Bundestag, the Bundesrat and the federal government. Unlike at the European level, each of these so-called bodies may make proposals for new laws. In practice, however, the drafts for laws often come from the federal government, as it has a very competent technical substructure in the form of the ministries.
The draft for a whistleblower protection law, for example, comes from the Federal Ministry of Justice. If such a bill originates from the Federal Government, it must first forward the draft to the Bundesrat. The Bundesrat may then comment on the draft.
This is the phase in which the draft Whistleblower Protection Act is currently in. Typically, affected professional groups also comment after the publication of a draft law, for the Whistleblower Protection Act, for example, the German Lawyers' Association. The deadline for comments from the states and associations is 11.05.2022.
Reconciliations
The Bundestag then votes on the bill. As a rule, a bill is passed by a majority of the members of parliament voting on it. In special cases, however, a special quorum must be met. For example, if the Basic Law is to be amended, two-thirds of all members of parliament must vote in favor.
If the Bundestag adopts a proposal, the Bundesrat must be involved. This consists of deputies selected by the government of each federal state. In special cases, the Bundesrat must approve a legislative proposal. This procedure is therefore called the approval procedure. The draft of a whistleblower protection law also involves such a procedure.
In most cases, however, the Bundesrat can only object to a law passed by the Bundestag within two weeks. The Bundestag can in turn overrule this objection. Instead of approving or rejecting a bill, the Bundesrat can also convene the Mediation Committee. This consists of members of the Bundestag and Bundesrat and is intended to reach agreement between the various institutions.
Execution
Finally, the law must be executed and promulgated. The Federal President is responsible for this. He must sign the law after it has been passed. In the event of non-compliance with the legislative procedure or obvious violations of the Basic Law, he may refuse to execute the law. The law is then published in the Federal Law Gazette. However, the website of the German Bundestag offers an online archive in which all parliamentary steps of a proposed law can be traced in advance.
A law enters into force at the end of the legislative process. It is only from this point that it takes effect. The Basic Law provides that the laws themselves shall determine the date on which they enter into force. In the absence of such a provision, it takes effect two weeks after publication in the Federal Law Gazette.
Conclusion
The German legislative procedure is very similar to that of the European Union in terms of its process and the actors involved. Instead of the institutional triangle of Commission, Parliament and Council of Ministers, the Federal Government, Bundestag and Bundesrat now interact. In contrast to the European level, however, all three institutions have a right of initiative in Germany. The draft whistleblower protection law has not yet reached the hot phase of voting. Above all, approval by the Bundesrat represents a decisive hurdle, because the constellations of the state governments differ from the traffic light coalition governing the federal government.
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