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German Constitutional Tribunal 2 BvF 1 /02 18 December 2002

IMMIGRATION ACT CASE. German Constitutional Tribunal 2 BvF 1 /02 18 December 2002. 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)

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German Constitutional Tribunal 2 BvF 1 /02 18 December 2002

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  1. IMMIGRATION ACT CASE German Constitutional Tribunal 2BvF1/02 18 December 2002

  2. LEGISLATIVE BRANCH • BUNDESTAG (Federal Parliament): itsmembers are elected in federalelections 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 nationallevel According to article 78 of the Basic Law the constitution requires legislative acts to be passed by both chambers

  3. 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

  4. THE VOTING PROCEDURE IN THE BUNDESRAT • Article 51.3 Sentence2BasicLawstates: “The vote ofeachLandmayonlybe cast as a unit[…]”  1- Thereisno splittingofvotesallowedwithineach state’sgroupofrepresentatives. 2-The widespread (butnotobligatory) practicethat the representativesof a Landusuallyreachaninformal agreement, appointingone“leadingmember” withineach state’sgroupto cast the vote for the Land.

  5. WHAT HAPPENED? 1 March 2002: the “ImmigrationAct” waspassed by the Bundestag  22 March 2002: also the Bundesratapproved the “ImmigrationAct” withanunusual procedure  18 December 2002: the FederalConstitutional Court declared the new “ImmigrationAct” voidforformalreasons. Itfoundthat the Actdidnotreceive a validmajority vote in the Bundesrat. The Court did not have to deal with any questions related to the content of the Act. Itdiscussedonly the constitutionalityof the legislative procedure.

  6. POLITICAL FRAMEWORK • The Land Brandenburg wasgovernedby a “grandcoalition” between the SPD and the CDU. Anycontroversybetweenthemabouthowto vote in the Bundesratwouldresult in anabstension • Rumourshad come up that the FederalGovernmenthadtriedto put pressure on Brandenburg’s Prime MinisterStolpetoensure a “yes” in ordertogain the majorityof the states’ votesfor the approvalof the “ImmigrationAct” • JörgSchönbohm, Brandenburg’sMinisterof the Interior and head of the Brandenburg CDU, publiclyannouncedthat the CDU woulddrop out of the coalitionif Brandenburg voted “yes” for the ImmigrationAct.

  7. GROUNDS-774thsession of the Bundesrat- Baden-WürttembergAbstention Bavaria No Berlin Yes Brandenburg - AlwinZiel (Brandenburg): Yes! - JörgSchönbohm (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 Land Brandenburg, I hereby declare Yes. - (JörgSchönbohm [Brandenburg]: You know my opinion, Mr President!) President Klaus Wowereit: With that I state that the Land Brandenburg voted Yes.”

  8. The Brandenburg “yes” permitted to reach the majority of affirmative votes necessary to allow the “Immigration act” to pass in the Bundesrat.

  9. …However Brandenburg had not voted uniformly contrary to the provision of Article 51.3(2) of the Basic Law.

  10. 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 broughtthe “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

  11. PREVIOUS CASE 19 December 1949: contradictory votes of two Ministers of the LandNorth-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 Land however the non-uniformity was unintentional, had not been announced in advance and was surmountable

  12. 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

  13. THE COURT’S REASONING Two steps: • the determination that the Land Brandenburg had voted “Yes” was erroneous • 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

  14. Reasons why Land Brandenburg vote should not have been counted as a “Yes”: 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 such non-uniformity was not eliminated by the further course of the ballot WHY?

  15. …Because • the President of the Bundesrathad 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 willdoes not exist and cannot be expected to come into being during the ballot

  16. the Prime Minister of a Land has no right to overrule the casting of the votes of the other Membersof the Land even if we presume the right to enquire of the President of the Bundesrat, theenquiryshould have been addressed in a neutral way: calling again the Land Brandenburg, or at least addressing the question also to Minister Schönbohm

  17. ↓ For all these reasons, the Court found Land Brandenburg vote invalid and hence the “Immigration Act” void

  18. THE DISSENTING OPINION of Judges Osterloh and Lübbe-Wolff The contradictory voting of the LandBrandenburg, not only was invalid, but did not constitute an act of voting at all ↓ the LandBrandenburg still had its right to vote In any case, the Landhad the right to correct its voting

  19. THE DISSENTING OPINION (2) Even though not addressed directly, Minister Schönbohmdid 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

  20. 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, FederalismRevisited: Constitutional Court Strikes DownNew ImmigrationActForFormalReasons, German Law Journal, 2003, Vol. 04 No. 02, pag. 71-89 • F. Becker, The Decisionof the German Constitutional Court on the ImmigrationAct, German Law Journal, 2003, Vol. 04 No. 02, pag. 91-106

  21. THANK YOU FOR YOUR ATTENTION Marta Dafano& Gloria Resemini

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