German Länder in the European Union

1. German Länder in the European Union Prepared for the Lecture “Saksa nyky - Euroopassa” 12.11.2003 by Michael Kull, M.Soc.Sc. Centre for European Studies, Department of Political Science, Faculty of Social Sciences University of Helsinki

2. German Länder in the European Union • Introduction • Part I: German Länder and the European Union • German Länder in the Process of European Integration • What have the Länder achieved? • Part II: Länder Institutions and Elites in Charge of European Affairs • The Europaministerkonferenz der Länder (EMK) • State-Secretaries in Charge of European Affairs • Heads of Departments in Charge of European Affairs • Federal State Offices in Brussels • German Delegates to the Committee of the Regions (CoR) • The Observer of the Länder • The Länder-parliaments Committees on EU-Affairs • The Committees by Name • The Composition of the Länder-Parliaments’ Committees on European Affairs • The Chairmen of the Committees on European Affairs • Conclusions

3. German Länder in the European Union • Draft Treaty Establishing a Constitution for Europe much welcomed by German sub-national institutions and authorities since the principle of subsidiarity has been explicitly mentioned for the first time within a constitutional treaty: • Article I-9: Fundamental principles paragraph 3: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The Union Institutions shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the Constitution. National Parliaments shall ensure compliance with that principle in accordance with the procedure set out in the Protocol.”

4. German Länder in the European Union • Two parts: • I.Länder’s role and power in terms of legal and executive participation within the Federal Republic of Germany and vis-à-vis the European Union • II. Länder- elites dealing with EU Affairs at European, Federal and Länder-level

5. German Länder in the European Union • German Länder and the European Union • German Länder in the Process of European Integration • Growing influence or ”federal erosion”? • Article 70 (1) Basic Law for the Federal Republic of Germany: "The Länder have the right to legislate in so far as this Basic Law does not confer legislative powers on the Federation". • Exclusive Länder responsibilities: the school system, universities, promotion of science and art, press, television and radio. In addition public administration, including municipalities and their charters (Gemeinde- und Kreisordnungen), the definition of municipal boundaries and the so-called kommunale Finanzausgleich. • Participation in legislation on water- and forest-laws, the rights of way, parts of the building- and civil servants law and the police.

6. German Länder in the European Union • Article 72 (Concurrent Legislation) of the Federation: “The Länder have the right to legislate as long and to the extent that the Federation has not exercised its legislative powers. The Federation has the right to legislate on such matters if and to the extent that the creation of equal living conditions throughout the country or maintenance of legal and economic unity makes federal legislation necessary in the national interest.” • Article 74 lists areas of concurrent legislations, e.g. registrations of births, deaths and marriages, foreigners’ residence, refugees and expellees, education and training grants and promotion of research, waste disposal, road traffic and so forth • Article 75 (Federal Framework Legislation – subject to conditions laid down in Article 72): e.g. general principles of higher education, general legal status of the press, registration of residence, regional planning

7. German Länder in the European Union • Länder in the Bundesrat: Article 50 Basic Law: "Länder shall participate through the Bundesrat in the legislative process and administration of the Federation and in matters concerning the European Union" • Different procedures to involve the Länder (via Bundesrat): Zuleitverfahren (1957), Länderbeteiligungsverfahren (1979),Bundesratsverfahren (1986)"Europaartikel" 23 Basic Law (1993) • Zuleitverfahren: Bundestags' keeps the Bundesrat informed about developments, intentions and projects of and within the Council of Ministers

8. German Länder in the European Union • Zuleitverfahren as well as its successor, Länderbeteiligungsverfahren (Beteiligung=participation, co-operation)proved to be rather inefficient • Bundesratsverfahren: Federal government is to hear the Bundesratbefore agreements on EC-matters were taken. =Improvement but still not satisfactory • “The Bundesrat shall consist of members of the Land governments which appoint and recall them” Article 51 (1) Basic Law • Federal Constitutional Court : Bundesrat is meant to be a representation of the Länder-governments. Neither the Länder-parliaments nor the population of the Länder shall be authorised or competent to influence or act on decision of the Bundesrat. • Länder’s demands after introduction of the Bundesratsverfahren: -Realisation of the principles of subsidiarity -Federalism instead of centralism -Safeguarding the Länder’ sovereignty in the areas of culture and education -Safeguarding an autonomous and regional structural-policy of the Länder - Principle of subsidiarity laid down in Community-treaties - A representative of region / Land within Council of Ministers - A special “Institution of the Regions"

9. German Länder in the European Union • Bundesrat’s position on EC Affairs at the beginning of the 1990’s : -Subsidiarity as a general principle -Creation of a Committee of the Regions -Modification of Art. 173 (1) EEC • Demands of the Länder during the phase of the ratification of Maastricht Treaty: - The transfer of sovereign powers to international institutions only with the consent of the Bundesrat - In fields of exclusive responsibilities of the Länder a Land-representative to represent the Federal Republic in the EU - A constitutional right for the Länder to establish representations (Federal State Offices in Brussels) -Right for participation in EU-affairs shall be written down in the German Constitution (Basic Law) • As a result Article 23 (Europaartikel)

10. German Länder in the European Union • "Europaartikel" 23: • Enables Länder to participate in EU Affairs • Paragraph 1: The European Union and its structure shall be committed to democratic, rule-of-law, social and federal principles as well as to the principles of subsidiarity • Paragraph 2 :The Bundestag and, through the Bundesrat the Länder shall be involved in matters concerning the European Union. The Federal Government shall inform the Bundestag and the Bundesrat comprehensively and as quickly as possible.“ • Paragraph 4: “The Bundesrat shall be involved in the decision-making process of the Federation in so far as it would have to be involved in a corresponding internal measure or in so far as the Länder would be internally responsible.“ • Paragraph 5: "Where essentially the legislative powers of the Länder, the establishment of their authorities or their administrative procedures are affected, the opinion of the Bundesrat in this respect shall prevail in the decision-making process of the Federation." • Paragraph 6 lays down the role of a representative of the Länder. "Where essentially the exclusive legislative jurisdiction of the Länder is affected the exercise of the rights of the Federal Republic of Germany as a member state of the European Union shall be transferred by the Federation to a representative of the Länder designated by the Bundesrat."

11. German Länder in the European Union • What have the Länder achieved? • Shift from legislative to executive federalism • The influence of the Länder -governments has increased considerably • The Länder -parliaments are, to a large extent, excluded if it is about participation in European legislation, since the Bundesrat acts as representative of the Länder • Possible solutions for remaining problems: - establishment of committees and organs responsible for Federal or EU-affairs such as the Committee of the Regions (COR) or the Länder liaison- offices in Brussels - The principle of subsidiarity (Art. 3b Maastricht Treaty) - Draft Constitution • A more detailed analysis at the end of this presentation

12. German Länder in the European Union • Länder Institutions and Elites in Charge of European Union Affairs • Structure: • The Europaministerkonferenz der Länder (EMK) • State-Secretaries in charge of European Affairs • Heads of Department in Charge of European Affairs • Heads of the Federal State offices in Brussels • Observer of the Länder • Delegates to the Committee of the Regions • Länder parliaments’ Committees on European Affairs

13. German Länder in the European Union • Europaministerkonferenz der Länder (EMK) • State-Secretaries in Charge of European Affairs • Heads of Department in Charge of European Affairs • Federal State Offices in Brussels • German Delegates to the Committee of the Regions (COR) • The Observer of the Länder • The Länder-parliaments Committees on EU-Affairs • Committees by Name • The Composition of the Länder-Parliaments’ Committees on European Affairs • The Chairmen of the Committees on European Affairs

14. German Länder in the European Union • Conclusion • Article 23 Basic Law of the Federal Republic of Germany • If sovereign powers are to be transferred, the Bundesrat has to approve • In an area in which the Federation has exclusive legislative jurisdiction but the interests of the Länder are affected, the Federal Government shall take into account the opinion of the Bundesrat • Where essentially the legislative powers of the Länder are affected, the opinion of the Bundesrat shall in this respect prevail in the decision-making process of the Federation • Any future Europeanization of Länder-competences needs an approval by the Bundesrat and Ländervertreter in the Council • In so far as legislative jurisdiction of the Länder is affected, the Bundesrat should take into consideration the opinion of the Länder parliaments (e.g. if the Länder parliaments want their governments to put pressure on the Federal Government to bring a case to the European Court of Justice)

15. German Länder in the European Union • Conclusion • Subsidiarity principle has been embodied in the EU Treaties, lately more precisely formulated in the Draft Treaty Establishing a Constitution for Europe • Establishment of the Committee of the Regions and its right to file an action in cases the principle of subsidiarity is violated (Draft Treaty Establishing a Constitution for Europe) • Regions and local authorities have been explicitly mentioned for the first time within the context of the principle of subsidiarity formulated in Article I-9 of the Draft Treaty prepared by the European Convention • The right for the Länder governments to file an action (via the Bundesrat) in cases of violation of the principle of subsidiarity (Draft Treaty Establishing a Constitution for Europe)

16. German Länder in the European Union • Evaluation of Biographies: • Highly educated personnel • Most common topics degrees: law, economics/management,pedagogics/ mastership/teachership and engineering • Male dominance • Average age • Members to EU committees relatively low profile of EU related work-experience