German constitutional law scholars describe the responsibilities of the Bundestag and the Bundesregierung in the domestic context as ‘Staatsleitung zur gesamten Hand’/
268
Cf. above Chapter I B.
‘joint state leadership’.270 This means that, in theory, the Bundestag and the Bundesre-
gierung share the rights and responsibilities that are part of governing a state as equal
partners which each have a unique contribution to make. Traditionally, the Bundesre-
gierung is seen to be in charge of setting the political agenda whereas the Bundestag is
seen as the forum for debate on the adoption of the legislation the government needs to implement its agenda – an allocation of roles which is seen as corresponding to their nature as executive and legislative respectively.
As far as the legislative process as designed by the Grundgesetz goes, the Bundesre-
gierung’s influence is very noticeable throughout: it has the right to introduce legisla-
tive bills into the Bundestag271 and votes on ordinary bills only require a simple majori- ty272 for the adoption. As members of the Bundestag, the members of the Bundesre-
gierung together with the members of the government coalition have a controlling in-
fluence on the work in the committees and can thus support a bill at every stage of the way. This procedural influence is combined with the Bundesregierung’s advantage in terms of information and expertise which results in the fact that in practice the Bun-
desregierung provides ca. 60% of all bills deliberated in the Bundestag. On the surface,
this provides the Bundesregierung with a comprehensive set of mechanisms to exert control over the Bundestag. This raises the question as to how much independent de- cision-making power the Bundestag has truly left, considering that the executive may reach into its very heart.
However, the Bundesverfassungsgericht has developed two reserves that provide the
Bundestag as a whole, but also the opposition parties, with options for recourse to
prevent the Bundesregierung from abusing its practical dominance – and thus prevent the usurpation of the legislative by the executive. Derived from the Rechtsstaat princi- ple, the general statutory reserve (Gesetzesvorbehalt) requires the executive to have a statutory basis for any action that impacts on the fundamental rights of an individual. This would indicate that, as such, the executive is very much dependent on the legisla- 270 Sommermann (n 79); Di Fabio (n 28). 271 Article 77 Grundgesetz. 272 Article 42 Grundgesetz.
tive for every single action relating to the implementation of its political agenda. How- ever, the Bundesregierung could easily circumvent these strictures by way of using its majority in the Bundestag to pass any statute it wished or even to pass legislation that empowered it to adopt far-reaching delegated legislation, thus making the Bundestag redundant. However, as the Bundesverfassungsgericht made clear, such a move would be a violation of the allocation of tasks and functions as created by the Grundgesetz, i.e. of the separation of powers as well the Rechtsstaat principle.273 According to the so-called ‘Wesentlichkeitstheorie’, the Grundgesetz contains a so-called parliamentary reserve (Parlamentsvorbehalt) that all ‘fundamental’ decisions have to be taken by the legislative itself. In other words, the Bundestag is prevented from delegating away its power to make decisions for the people who elected it. In the jurisprudence of the Court, this theory has been of particular relevance in the area of human rights. For ex- ample, the Bundesverfassungsgericht held that the question whether a teacher in a public school may or may not wear a headscarf could not be left to administrative dis- cretion but had to be settled directly by statute.274 Considered through the lens of the separation of powers, this reserve shows a strong connection to Kant’s idea of the people having the right to decide themselves what limitations they wished to be sub- ject to. From a practical point of view, this reserve prevents the Bundesregierung from using its control over the political parties supporting it to abuse their dominance over the Bundestag in order to delegate legislative power to the Bundesregierung. In es- sence, this reserve protects the core of the Bundestag’s legislative function against it being undermined ‘from the inside’.
Beyond these two reserves, the division of labour between the executive and the legis- lative is left to a large extent to the institutions involved. For example while the politi- cal decision as such about the peaceful use of nuclear energy had to be taken by the parliament,275 it was perfectly acceptable for it to regulate the matter through the use of vague legal terms that by their very nature transferred a lot of actual decision-
273
BVerfG, ‘Hessisches Richtergesetz’ (n 236) 59–60.
274
BVerfG, ‘Kopftuch Ludin’ (n 19).
making power to the executive during the implementation. Without expressly referring to it, the Bundesverfassungsgericht relied on notions developed later by Ossenbühl with his Grundsatz der funktionsgerechten Organstruktur276 when it argued that in an area of law so dependent on staying on top of fast-moving technological progress, any legislator would be hard-pressed to keep a statute properly updated – and concluded that it was no violation of the Wesentlichkeitstheorie if the executive was provided with a considerable amount of discretion if that discretion was guided by a statute providing the necessary basic framework.277