Federal Constitutional Court - Press office -

Press release no. 26/2008 of 6 March 2008

Order of 15 January 2008 – 2 BvL 12/01 –

Constitutional boundaries governing recommendations for resolutions
issued by the Mediation Committee


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. 


This press release is also available in the original german version.