The mediation procedure
The Mediation Committee is a joint body composed of representatives of the Bundestag and the Bundesrat. The Bundesrat representatives are 16 members of the Bundesrat, one for each Land, although they are not bound by instructions from their Land governments as they are when taking decisions in the Bundesrat. The Bundestag representatives are 16 Members of the Bundestag, who, in accordance with the principle that governs the composition of Bundestag committees, reflect the relative strengths of the parliamentary groups. The chairpersonship of the Mediation Committee alternates every three months between a Member of the Bundestag and a member of the Bundesrat. Meetings of the Mediation Committee are strictly confidential; minutes of the meetings are not made available until the beginning of the second electoral term following the one during which the meeting was held, i.e. generally not until at least 4 years have passed. It is argued that if meetings were not strictly confidential committee members would be unable to reach compromises with each other and would be put under pressure by their respective Land governments or political parties to refuse to make concessions on particular issues.
The frequency with which meetings of the Mediation Committee are convened not only reflects the extent to which the Federation and the Länder disagree over legislation but also mirrors the political constellation at federal level. If the political majority in the Bundesrat is not the same as that in the Bundestag, the two organs are more likely to disagree and thus more likely to convene the Mediation Committee. During the 7th electoral term (1972 - 1976), for example, when there was an SPD-FDP coalition government, the Bundesrat demanded that the Mediation Committee be convened on 96 occasions and, in the following 8th electoral term (1976 -1980), on 69 occasions. During the 10th electoral term (1983 -1987), however, when the CDU/CSU-FDP coalition was in power, the Mediation Committee was convened only 6 times. Over the whole of this period, from 1972 to 1987, the majority in the Bundesrat was formed by representatives of the CDU/CSU Land governments. During the 12th and 13th electoral terms (1990 -1994; 1994 - 1998, CDU/CSU-FDP coalition), following a series of elections at Land level, the CDU/CSU lost its majority in the Bundesrat, which led to another increase in the use of the mediation procedure. In the two subsequent electoral terms, too, during which Land governments reflecting the coalition at federal level (SPD-Alliance 90/The Greens) held a majority in the Bundesrat for only a brief period of time, the mediation procedure was used frequently at the request of the Bundesrat, with 66 cases in the 14th electoral term (1998 - 2002) and 90 in the 15th electoral term (2002 - 2005). Whilst the grand coalition was in office during the 16th electoral term (2005 - 2009), however, use of the mediation procedure once again dropped significantly, to a level of only 18 cases. However, this does not mean that the mediation procedure is exploited wilfully by one party or another, depending on the political make-up of the Bundestag and the Bundesrat. The fact that either the Bundestag or the Bundesrat resorts to the mediation procedure simply reflects the parties' different policies at both federal and regional level and also shows that the Bundesrat, too, is of course a political organ.
The purpose of the mediation procedure is to amend the bill in question in such a way that the Bundestag and the Bundesrat are equally satisfied with the final result. If the procedure is to succeed, the Bundestag and the Bundesrat often have to compromise on what form they would ideally like the bill to take. The Bundestag and the Federal Government have to accept the proposals of the Länder on certain points, and the Länder are also obliged to make concessions to the Bundestag. When the deliberations are over, the Mediation Committee submits a compromise proposal to the Bundestag and the Bundesrat.
Printed paper 16/11392
Recommendation by the Mediation Committee for decision
on the Act for the Promotion of Families and Household-related Services (Family Benefits Act - Familienleistungs¬gesetz)-
Rapporteur in the Bundestag: Dr Michael Meister, Member of the Bundestag
Rapporteur in the Bundesrat: Professor Ingolf Deubel, Minister of State
The Bundestag is requested to adopt the following recommendation:
The Act for the Promotion of Families and Household-related Services (Family Benefits Act - Familienleistungsgesetz) shall be amended in accordance with the decision annexed hereto.
Dr Michael Meister
Professor Ingolf Deubel
for the Mediation Committee
Berlin, 17 December 2008
Act for the Promotion of Families and Household-related Services (Family Benefits Act - Familienleistungsgesetz)
Article 7a (new) - (section 1 of the Financial Equalisation Act)
After Article 7, the following Article 7a shall be inserted:
Amendment of the Act regulating Financial Equalisation between the Federation and the Länder
Section 1 of the Financial Equalisation Act (Finanzausgleichsgesetz) of 20 December 2001 (Federal Law Gazette I, pp. 3955 and 3956), as amended by ..., shall be amended as follows:
1. After the eleventh sentence, the following sentences shall be inserted:
"To compensate for the increase in child benefit with effect from 1 January 2009, the figures indicated in the fifth sentence above shall be adjusted by the following amounts:
in 2009 by minus EUR 794000000,
in 2010 by minus EUR 281 000 000, and
in 2011 by
plus EUR 152000000.
The share indicated in the sixth sentence above shall be adjusted
in 2009 by an amount of
plus EUR 794000000,
in 2010 by an amount of
plus EUR 281 000000, and
in 2011 by an amount of
minus EUR 152000000."
2 In the present fourteenth sentence, the words "in the eighth to the thirteenth sentences above" shall be replaced by the words "in the eighth to the eleventh and in the fourteenth and fifteenth sentences above".
The Mediation Committee was thus able to come to a compromise proposal in this case. This provided for individual amendments to the Act adopted by the Bundestag, which were summarised in an annex to the Mediation Committee's recommendation.
If the Mediation Committee proposes that the bill be amended, the Bundestag must again take a decision on the bill (the so-called "fourth reading"). The Bundestag is in theory free to decide whether it wishes to accept or reject the Mediation Committee's proposal. In practice, however, the Bundestag knows that if it were to reject the proposal, the Bundesrat could, depending on the type of bill, either lodge an objection or refuse to give its consent. In the first case, the Bundestag would then have to secure the necessary absolute majority or even a double qualified majority of its Members to try and override the objection, which is not always easy to achieve. In the second case, failure by the Bundesrat to give consent to the bill would mean that the bill had been defeated. The
Bundesrat, which must take a decision on the bill following the "fourth reading" in the Bundestag, can reject the compromise proposal and, depending on the type of bill, either lodge an objection to the bill or refuse to give the bill its consent. Alternatively, it can accept the proposal and either give its consent to the bill or refrain from lodging an objection.
The Bundestag has adopted special provisions to govern the way in which it votes on the Mediation Committee's proposal. Firstly, the Mediation Committee may stipulate, as it generally does if several amendments have been proposed, that in accordance with its Rules of Procedure which were adopted by the Bundestag with the Bundesrat's consent specifically for this purpose, the Bundestag should vote on the compromise proposal as a whole. The Bundestag therefore cannot adopt some provisions and reject others, since that would destroy the compromise reached through the mediation procedure and cause further disagreement between the two sides. Secondly, the Bundestag is not permitted to hold a debate on the Mediation Committee's proposal; the parliamentary groups may only make statements on the proposal.
In the present case neither the rapporteurs nor any of the parliamentary groups had asked for the floor to make a statement during the deliberations in the Bundestag on the recommendation of the Mediation Committee. Thus it was possible to proceed to a vote immediately and the committee's proposal for amendment was adopted by a majority of the Bundestag.
|German Bundestag - 16th electoral term - 196th sitting. Berlin, Thursday, 18 December 2008 |
Dr Michael Meister, Member of the Bundestag
I call supplementary item 3c:
Discussion of the recommendation of the committee established under Article 77 of the Basic Law (Mediation Committee) on the Act for the Promotion of Families and Household-related Services (Family Benefits Act -Familienleistungsgesetz)
Who votes in favour of the recommendation of the Mediation Committee? - Who votes against it? -Who abstains? - The recommendation has been adopted, the CDU/CSU group and the SPD group having voted in favour and the FDP group, the group of The Left Party and the group of Alliance 90/The Greens having abstained.
The Bundesrat then also adopted the bill in the version amended by the Bundestag on the basis of the recommendation of the Mediation Committee, as the extract from the stenographic record of the 853rd sitting of the Bundesrat of 19 December 2008 printed below shows.
|Bundesrat - 853rd sitting -19 December 2008 |
President Peter Müller:
We now come to item 78:
Act for the Promotion of Families and Household-related Services (Family Benefits Act - Familienleistungs¬gesetz) - printed paper 972/08
This act, too, has come back from the Mediation Committee. I call the rapporteur, Minister of State Professor Deubel. The floor is yours, Professor.
Professor Ingolf Deubel, rapporteur: Mr President, ladies and gentlemen, the Act for the Promotion of Families and Household-related Services, which requires the consent of the Bundesrat, is designed to make considerable improvements to the system of state compensation for family services in accordance with the principle of a sustainable families policy.
On 7 November 2008, the Bundesrat delivered its opinion on the underlying government draft, and this opinion included a unanimous request for an increase of 0.41 of a percentage point in the share of VAT revenue accruing to the Länder in order to compensate them for the additional financial burdens, which exceed their fixed percentage contribution to the funding of family-support measures.
The German Bundestag adopted the Act on 4 December 2008 without acting on the request of the Bundesrat. Accordingly, on 5 December 2008, the Bundesrat unanimously demanded that the Mediation Committee be convened in respect of the Act with a view to correcting the distribution of the financial burden between the federal treasury and the Länder by means of an increase of 0.41 percentage points in the share of VAT revenue accruing to the Länder.
On 17 December 2008, at its tenth meeting, the Mediation Committee dealt with the Act. It was unable to agree on a permanent increase in the share of VAT, which the Länder had requested. Instead, by way of a pragmatic compromise, the distribution of costs for the next three years is to be adjusted by fixed amounts. In 2009, the Länder will receive €794 million to compensate them for their additional current expenditure, and in 2010 they will receive €281 million; in 2011, the federal treasury will receive €152 million from the Länder. On balance, this means that the Länder will obtain an additional amount of €923 million.
In this context, allow me to make the following observation: the agreement reached in the Mediation Committee cannot entirely satisfy the Länder. Nevertheless, we concluded this compromise so that the improvements in families policy under this Act, and in particular the increase in child benefit, could enter into force on schedule at the New Year.
At its sitting yesterday, the Bundestag approved the Act for the Promotion of Families and Household-related Services with the amendments proposed by the Mediation Committee. Today, the Bundesrat has to decide whether to do likewise and approve the amended Act in accordance with Article 105(3) of the Basic Law. - Thank you for your attention.
President Peter Müller: I thank the rapporteur for explaining the outcome of the Mediation Committee's deliberations and for his necessary and accurate clarifications on the substance of Article 106 of the Basic Law.
There have been no further requests to speak. - Mr Krautscheid, Minister for
Federal, European and Media Affairs of North Rhine-Westphalia, has submitted an explanation of vote for the minutes.
We shall now proceed to the vote. If you wish to vote for the Act as amended by the German Bundestag on the basis of the compromise proposals made by the Mediation Committee, please raise your hand. - That is a majority in favour.
The Bundesrat has thus given its consent to the Act.
After the Bundesrat had given its consent to the bill, it could finally become law (see below, The signing and promulgation of laws).
If this had been a law to which the Bundesrat may lodge an objection, rather than a law requiring the Bundesrat's consent, the following procedure would have applied after the referral of the bill to the Mediation Committee and the submission of the Mediation Committee's compromise proposal. Here, too, the Bundestag would first have had to take a decision on the Mediation Committee's compromise proposal in a "fourth reading" (see above). Once the Bundestag had adopted the proposal, the Bundesrat would then have had to decide whether to accept the bill as amended by the Mediation Committee's compromise proposal, and therefore not to lodge an objection to the bill within two weeks. The bill would thus have been passed. Special rules apply, however, to the further procedure in the Bundestag (the so-called "fifth reading") in the case of the Bundesrat lodging an objection. A motion to reject an objection by the Bundesrat can only be tabled by a parliamentary group or by a group of Members as large as a parliamentary group - currently 36 Members. No debate is held before the vote on the motion to reject the objection; however, statements can be made in which the parliamentary groups set out their positions. And since the rejection of an objection by the Bundesrat requires an absolute majority or even a double qualified majority in the Bundestag, if the decision to lodge an objection was passed by a two-thirds majority in the Bundesrat, the Rules of Procedure stipulate that the vote should take place through a counting of votes (the so-called
Hammelsprung) or a vote using voting cards bearing Members' names. This is the only way to be certain whether the majority required to override the objection was achieved.
Currently, there are altogether 709 Members, which means that 355 votes are required for an absolute majority; the double qualified majority needed if the Bundesrat decides by a two-thirds majority to lodge an objection means that a two-thirds majority of those present and voting is required, but this must also consist of at least an absolute majority of the statutory number of Members. Such majorities are not particularly easy to obtain, especially if the opposition parties have voted against the bill and are therefore unlikely to oppose the objection lodged by the Bundesrat. In such a case, the parliamentary groups which form the majority in the Bundestag have to ensure that as many of their members as possible participate in the vote, in order to achieve the required majority. The Hammelsprung procedure does not go far enough towards achieving this, since it allows precise figures on the results of the vote and the majorities obtained to be recorded, but does not indicate which Members were absent. It is therefore common in parliamentary practice for a vote using voting cards bearing Members' names, in accordance with Rule 52 of the Rules of Procedure, to be demanded in such cases. Under this rule, instead of the vote being taken by a show of hands, all Members cast their votes using a voting card bearing their names and their vote ("Yes", "No", "I abstain"). The name of each Member together with his or her vote is then published in the stenographic record of the sitting. In addition, Members who fail to participate in a vote of this kind are penalised by having a certain amount deducted from their expense allowance. This latter measure, together with the negative impression this is likely to generate, generally ensures that a large number of Members attend the vote. In the case of bills to which the Bundesrat may lodge an objection, if the Bundestag rejects the Bundesrat's objection in this way, the bill has been passed and can become law.