The Bundestag’s rights to participate in EU affairs
In accordance with Article 23 of the Basic Law (the German constitution), the Bundestag participates in the federal political decision-making process on matters concerning the European Union. Parliament’s rights in this context are fleshed out in the legislation accompanying the Lisbon Treaty. The laws in question are the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union (also known as the Cooperation Act – the EUZBBG), a revised version of which was passed in 2013, and the Act on the Exercise by the Bundestag and by the Bundesrat of their Responsibility for Integration in Matters concerning the European Union (also known as the Responsibility for Integration Act – the IntVG). Both laws give the Bundestag sweeping rights to information and participatory rights.
The Cooperation Act sets out the Federal Government’s notification obligations in EU matters and regulates issues concerning the Bundestag’s participation by delivering opinions to the Federal Government. The Responsibility for Integration Act deals with the Bundestag’s involvement in amendments to European primary law which are not subject to the usual ratification procedures, and in cases where the Lisbon Treaty provides for an expansion of European competences.
The Bundestag’s rights to information
The Bundestag can only exercise its participatory rights if its competent bodies are fully informed about the substance of the EU project in question and the state of negotiations on it. The Federal Government is therefore required to notify the Bundestag about EU matters comprehensively, as early as possible, continuously and, as a rule, in writing.
The notification requirement covers, in particular, the Federal Government’s decision-making process and the preparation and course of discussions within the institutions of the European Union. This notification usually takes the form of documents and reports of the Federal Government being forwarded to Parliament.
The Cooperation Act describes how this should take place in practice. It states that the Federal Government is required to transmit to the Bundestag all Commission proposals for EU legislative acts, reports, communications, green and white papers, negotiating mandates for international agreements and proposals for Council decisions. The Federal Government must also include its own appraisal of the main substance of each EU item, its political significance, the German interest in it and, where relevant, its compatibility with the principles of subsidiarity and proportionality. In addition, the Federal Government must subsequently keep the Bundestag informed at all times about further planning and discussions at European level.
Finally, the Federal Government also provides the Bundestag with information about international agreements if they supplement, or are otherwise closely related to, EU law. This includes the European Stability Mechanism or the Fiscal Stability Treaty, for example.
The right to deliver opinions
The central instrument allowing participation in matters concerning the EU is the Bundestag’s right to deliver opinions, which is anchored in the Basic Law (Article 23(2) and (3)). Whenever the Bundestag exercises this right, the Federal Government must use this opinion as a basis for its negotiations. In the case of an opinion on a legislative act under Article 23(3) of the Basic Law, the Federal Government must invoke the requirement of prior parliamentary approval if any of the main interests expressed in the opinion of the Bundestag cannot be asserted. It must inform the Bundestag without delay of this in a report and must seek to reach agreement with the Bundestag before the final decision in the Council. 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. After the final decision, the Federal Government must notify the Bundestag in writing without delay as to whether or not its opinion has been adopted.
Responsibility for Integration Act
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 under the Responsibility for Integration Act adopted in September 2009. This law regulates the Bundestag’s involvement in, for example, amendments to EU treaties which are not subject to the usual ratification procedure, the use of provisions in primary law which could expand EU competences, or a move from unanimous to qualified majority voting in the Council or from the special to the ordinary legislative procedure.
The German Bundestag’s special responsibility for integration in these EU matters is the reason why it plays a role in its own right.
The principle of subsidiarity
Under the principle of subsidiarity, the EU may act only if the objectives of the proposed action cannot be sufficiently achieved by the Member States but can rather, by reason of their scale or effects, be better achieved at EU level. Under Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality annexed to the Treaty of Lisbon, the national parliaments can, within eight weeks from the date of transmission of a draft legislative act in all official EU languages, state in reasoned opinions why they consider that the draft in question is not compatible with the principle of subsidiarity (subsidiarity objection).
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). The Bundestag also has the option of bringing a subsidiarity action before the European Court of Justice once the legislative act has entered into force.
The IPEX database has been set up to facilitate communication between the national parliaments and the European Parliament about EU initiatives, and in particular about the delivery of reasoned opinions and subsidiarity objections.
Parliament’s involvement in the provision of financial assistance
The German Bundestag exercises other participatory and scrutiny rights on the basis of the Act on the Assumption of Guarantees within the Framework of a European Stabilisation Mechanism and the Act on Financial Participation in the European Stability Mechanism. These laws relate to the European Financial Stability Facility (EFSF), created in 2010, and the European Stability Mechanism (ESM), established in 2012, two financial institutions which were set up during the European financial crisis to safeguard the financial stability of the eurozone as a whole by providing financial assistance to euro members.
The EFSF ended its work in mid-2013, but its programmes – for Greece, for example – are continuing in the ESM framework. With more than 700 billion euros in capital, the ESM is now a permanent crisis mechanism. As Germany’s provision of loans and guarantees through the EFSF and the ESM affects the Bundestag’s overall budgetary responsibility, decisions approving such measures within the ESM’s decision-making bodies require the consent of either the Bundestag’s plenary or its Budget Committee.