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.

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.

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.

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.