Abstracts 3/2004 englisch

Franz, Thorsten: The Future of Germany’s Federal State: Constitutional Guidelines for a Change of The System.
Some traditional arguments in favour of a federal state no longer justify the present system in Germany. Its high costs and slow reaction to change, as well as continued European integration could substantiate the call for abandoning the federal system in favour of a centralised state. In contrast to widespread opinion, the constitution does not stand in the way of a centralised state. The so-called eternity clause (Article 79 GG) protects the federal state only against the legislature (pouvoir constitué). The constitutional power of the people (pouvoir constituant), as recognised in the reserve clause (Article 146 GG), is, however, neither restricted by the eternity clause nor linked to the federal system, so that it would be possible to abolish federalism. (ZParl, vol. 35, issue 3, pp. 409 – 427)

Broschek, Jörg: “Collaborative Federalism” in Canada: A New Era in Intergovernmental Relations?
Since the mid-1990s a new form of federalism, labeled “collaborative”, appears to have evolved in Canada. It can be traced back to several far-reaching events and developments such as the defeat of the Charlottetown Accord in 1992, the general election of 1993, and the political implications of bad economic performance alongside increasing public debts and deficits in the early 1990s. Considering recent developments in historical context, the state of intergovernmental relations is currently inconsistent. Although there has been some moderate improvement, a centrifugal dynamic still prevails. Instead of committing themselves to a real cooperative approach that reflects both policy interdependence and division of power, political elites on both levels of government prefer playing the game of credit claiming and blame avoidance. Accordingly, “collaboration” is not a new era, but another transition period in Canadian federalism. (ZParl, vol. 35, issue 3, pp. 428 – 448)

Lorenz, Astrid: Stable Constitutions? Constitutional Reforms in Democracies.
Since changes to existing democratic constitutions are not often examined on the basis of a multi-case comparison, their stable regulating function is often overemphasized. Several hypotheses, widely held among scholars, are tested with the empirical data of constitutional reforms in 24 Northern American and European democracies in the period between 1993 and 2002. The findings show (1) that constitutional changes, including far reaching ones, are not at all infrequent, (2) that there is no statistical correlation between constitutional rigidity and amendment rates, and (3) that older constitutions are not shorter and less likely to be amended than modern ones. These somewhat surprising results indicate a deep gap of knowledge about constitutional politics in modern Western democracies. Their constitutional development might best be explained by an historically- and economically-based neo-institutionalism, exemplified by negotiations among socially embedded rational actors. This view should be examined in further research. (ZParl, vol. 35, issue 3, pp. 448 – 468)

Mohr, Jörg: The Constitutional Minority Right in Parliamentary Investigations of the Bundestag. The Ruling of the Federal Constitutional Court from April 8, 2002.
According to Article 44 of the Basic Law, the Bundestag must establish an investigative committee on the motion of one quarter of its members. In dispute was whether this minority right also takes effect in the actual proceedings of the investigative committee. In its April 8, 2002 decision, the Federal Constitutional Court concluded that Article 44 of the Basic Law extends to all proof establishing activities during the proceedings of an investigative committee. The court deduced this right to participate in the proceedings from the minority’s right to have an investigative committee set up. However, this right extends not only to the parliamentary minority which demanded the establishment of the committee but also to any minority which potentially could have demanded it. By including such potential minorities, the court widened the minority right guaranteed by Article 44 of the Basic Law and, thus, changed the inherent character of parliamentary investigations. (ZParl, vol. 35, issue 3, pp. 468 – 486)

Algermissen, Markus: The Right to Receive Files as an Instrument of Parliamentary Information and Control. The Ruling of the Federal Constitutional Court of March 30, 2004.
The Court decided that the Government of Schleswig-Holstein could not refuse to submit certain files which a committee of the State legislature had demanded. The court confirmed its earlier ruling about the so-called core area of executive responsibility, and specified that parliamentary control is limited to completed matters. Even then the parliamentary right to obtain information is not without restrictions. It is necessary to balance parliamentary and governmental interests in view of the circumstances of each individual case. The court laid down guidelines: (1) The more the information required from the government pertains to the final governmental decision, the more important are freedom and openness of the decision-making process. (2) The more a parliamentary request for information relates to the inner core of the governmental process, the more crucial the parliamentary interest for this information has to be. (3) The parliamentary right to obtain information is particularly strong in cases of disclosure of unlawful activities of the government. (ZParl, vol. 35, issue 3, pp. 487 – 496)

Platter, Julia: The Use of Referenda in Budget Relevant Issues. New Court Rulings.
All states of the Federal Republic of Germany have implemented in their constitutions (other than the federal Basic Law) procedures for popularly initiated legislation (initiative, referendum) having equal legal standing to parliamentary legislation. However, initiatives and referenda stand under reservation of the budget, according to the states’ constitutions. So far, most State Constitutional Courts have, consequently, dismissed all initiatives which seemed to interfere with the budget, even if these initiatives did not concern the budget itself. In contrast to these rulings, the Saxony Constitutional Court recently permitted such an interfering initiative. After reviewing the arguments for and against this issue, the author concludes that, in the current system, the reservation of the budget limits the referendum but does not apply to the initiative because initiatives do not legally bind parliament in budgetary questions. (ZParl, vol. 35, issue 3, pp. 496 – 512)

Thaysen, Uwe: The Convent Movement for the Reform of Federalism in Germany: A Last Hurra of the State Parliaments at the Start of the 21st Century?
Germany’s single states have come to their final chance either to articulate their will and capacity to survive in constitutional sovereignty, i.e. with meaningful representative bodies of their own (Landesparlamente), or to perish and become mere provinces or regions. Germany’s single state parliaments (Abgeordnetenhaus, Bürgerschaft or Landtag) seem to understand that challenge. They installed a specific movement (Konventsbewegung) for the reform of Germany’s federalism. After documenting the origin of this movement and analysing the inter-parliamentary development of its organization and its aims, one is lead to a careful evaluation of the movement’s probable future: There are signs suggesting a failure while others point to a possible success. (ZParl, vol. 35, issue 3, pp. 513 – 539)

Decker, Frank: Experts’ Views on the “New” Federalism: An Interim Balance of the Work of the Commission for Modernizing the Federal System.
So far, a reform of Germany’s federal system has been impeded by both a lack of reform pressure and obstructing conflicts of interest. However, the newly established Commission for Modernizing the Federal System might be able to grasp the opportunity for change. The Commission, whose members are representatives from the federal and state levels, has restricted its programme to the feasible and has, as a precaution, avoided problematic areas like the redrawing of Länder boundaries and the equalization of revenue between the Länder and the federal government. The reform’s aim is to disentangle and decentralise the federal authorities. The Länder would, on the one hand, retrieve areas of jurisdiction from the catalogues of concurrent and framework legislation and would, on the other hand, waive several bill approval rights in the Bundesrat. The Commission’s expert members submitted detailed suggestions, but also called attention to possible difficulties when implementing them. Altogether, one should not expect too much from the reform, not least because the problems arising from cooperative federalism are tightly interwoven with the workings of the parliamentary system in general. (ZParl, vol. 35, issue 3, pp. 540 – 558)

Jun, Uwe: Politicians’ Views on the Reform of German Federalism. More Autonomy and Competition as a Way Out of the “Joint Decision Trap”?
Reforming federalism is at the top of the German political agenda. The Commission for Modernizing the Federal System, chaired by the SPD party leader Franz Müntefering and the Bavarian Prime Minister Edmund Stoiber (CSU), aims at presenting a comprehensive concept for a reform at the end of 2004. The different options discussed in the commission can be subsumed under two approaches: a concept of dual federalism resulting in much more competition between the states; and a concept of making the structures of the existing co-operative unitary federalism more susceptible to change and variety. The latter concept is likely to succeed because it is linked to the historical evolution of Germany’s federal institutions. It is also the more appropriate solution because it gives more autonomy to the states without risking the drastic distributive effects which the introduction of dual federalism would incur. (ZParl, vol. 35, issue 3, pp. 559 – 580)

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