The Bundestag’s primary means of influencing EU lawmaking is via the Federal Government. In addition, Parliament can contact the Commission direct and work together with other national parliaments and the European Parliament. Cooperation with the European Parliament, in particular, has intensified in recent years. For example, interparliamentary meetings and hearings are held at regular intervals, allowing the parliaments of the Member States to be involved in the legislative work of the European Parliament in the case of important EU proposals.
The Bundestag requires comprehensive information in order to participate in EU affairs and to exercise its rights to scrutinise the work of the Federal Government. These rights are enshrined in Article 23 (2) and (3) of the Basic Law (the German constitution) and fleshed out in the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union (EUZBBG), which was amended in September 2009. The Act requires the Federal Government to provide the Bundestag with comprehensive information at the earliest possible time. In particular, the government must transmit to the Bundestag all Commission proposals for EU regulations and directives, reports, communications, green and white papers, and proposals for Council decisions, and inform the Bundestag about plans and discussions concerning these drafts at European level.
At the centre of Parliament’s participation in EU affairs is the examination of EU proposals by the Bundestag’s committees: proposals are discussed by a lead committee and usually also by other committees. As EU items undergo a constant process of amendment in the European legislative process, it is not uncommon for the committees to deliberate on them several times, from the initial referral of the original document until the final decision is taken on the draft by the Council and the European Parliament.
The deliberations in the Bundestag can be concluded by the committee responsible for the EU item issuing a recommendation for a decision to the plenary. The plenary then adopts a decision (“opinion”) on the basis of the recommendation. An opinion can also be adopted by the Bundestag on the basis of a motion tabled by at least one parliamentary group. The Bundestag can deliver an opinion to the Federal Government on all EU proposals. Before the Federal Government takes action regarding EU projects under Section 3 of the EUZBBG, it must give the Bundestag the opportunity to deliver an opinion (Section 9 (1), first sentence, of the EUZBBG). If the Bundestag delivers an opinion, the Federal Government must use it as the basis for its negotiations at European level (Section 9 (2), first sentence, of the EUZBBG). In the case of opinions relating to a legislative act, the Federal Government must invoke at European level the requirement of prior parliamentary approval if one of the main interests expressed in the decision of the Bundestag cannot be asserted (Section 9 (4), first sentence, of the EUZBBG). The Federal Government has the right to deviate from the Bundestag’s opinion if there are compelling reasons relating to foreign or integration policy for doing so.
In addition, the Bundestag can, pursuant to Article 45 of the Basic Law, empower the Committee on the Affairs of the European Union to exercise its participatory rights vis-à-vis the Federal Government and the institutions of the European Union.
In the wake of the Federal Constitutional Court’s judgment of 30 June 2009 on the ratification of the Treaty of Lisbon, the Bundestag received additional participatory and decision-making rights in EU affairs as a result of the Responsibility for Integration Act adopted in September 2009. Under this Act, the Federal Government can, in the case of specific EU proposals which fall within the scope of the Bundestag’s special responsibility for integration, only take final action in the Council on the basis of a law passed beforehand, or of a decision taken or instructions issued by the Bundestag.
The Responsibility for Integration Act also contains provisions relating to the subsidiarity objection and action (Sections 11 and 12). Under the principle of subsidiarity, the EU may act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level (Article 5 (3) of the Treaty on European Union). In accordance with Article 6 of the second protocol to the Treaty of Lisbon, the national parliaments can, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, state in reasoned opinions why they consider that the draft in question does not comply with the principle of subsidiarity. If a majority of the national parliaments conclude in their reasoned opinions that the draft is incompatible with the principle of subsidiarity, the draft may be rejected by the Union legislator (the Council and the European Parliament). Section 12 of the Responsibility for Integration Act in conjunction with Article 8 of the second protocol to the Treaty of Lisbon also gives the Bundestag the possibility of bringing a subsidiarity action before the European Court of Justice.