You are here:
Constitutional boundaries governing recommendations for resolutions issued by the Mediation Committee
Press Release No. 26/2008 of 06 March 2008
Order of 15 January 2008
2 BvL 12/01
The Second Senate of the Federal Constitutional Court had to address the question of the constitutional boundaries governing recommendations for resolutions issued by the Mediation Committee [composed of members of the Bundestag and of the Bundesrat], on the basis of Article 3 no. 4 letter a of the Act for Continuation of the Reform of Business Taxation (Gesetz zur Fortsetzung der Unternehmensteuerreform) of 29 October 1997. The challenged provision had been included in the Act upon the recommendation of the Mediation Committee without the provision as such or a thematically related provision having been the object of the prior legislative procedure. The Senate held that the Mediation Committee had thus exceeded the boundaries of its competence under constitutional law.
In essence, the decision is based on the following considerations:
It is the task of the Mediation Committee to develop a compromise proposal in order to resolve differences of opinion arising between the two Houses of the German parliament (Bundestag and Bundesrat) within the context of a legislative procedure, on which proposal the Bundestag then has to decide anew. In order to safeguard the division of competences between the Federation and the Länder (federal states), the rights of members of the Bundestag, the public nature of parliamentary debate and hence the democratic monitoring of legislation, the Mediation Committee may only propose amendments, supplements or deletions of the legislation under consideration which remain within the confines of both the request made to it and the legislative procedure. The committee is therefore bound by the matters for regulation which were introduced into the relevant legislative procedure by the time of the final reading in the Bundestag.
Based upon these standards, the Mediation Committee exceeded its competence by including in its compromise proposal Article 3.4 letter a of the Act for Continuation of the Reform of Business Taxation. The committee introduced the provision into the legislative procedure without it or a thematically related provision having been the object of the procedure so far. The decision concerning a provision on tax on the transformation of companies was taken within the Mediation Committee. Hence, the Committee basically availed itself of a right to take the legislative initiative, which is the exclusive prerogative of the Bundestag, the Bundesrat, and the Federal Government.
Despite the violation of constitutional law established, the provision remains in force since the breach of procedural rules is not evident as required. The decisive aspect is that the Federal Constitutional Court did not further specify the standards according to which the legislative procedure adopted is to be considered unconstitutional, until its decision of 7 December 1999 and hence until after completion of the legislative procedure presently at issue. The legislature was not yet able to adjust to those standards in the year 1997.