The Federal Republic of Germany

Like every federal order the German system is characterized by the principle of “strict separation” of powers and functions between the federal government (Bund) and the states (Länder). Both are vested with the three branches of public power: the legislative, the executive, and the judiciary. And each is responsible and accountable for its own acts and decisions, even if a federal law delegates legislative power to state parliaments. However, unlike the federal system in the United States, the German federal system is not based on two completely distinct and separate columns of federal and state powers with no connections between them; rather the German system is like an unbalanced scale or a seesaw, with a concentration of legislative functions at the federal level and of administrative powers at the state level. This is so because the Länder implement not only their own statutes but also a large part of federal law. The judiciary is also organized hierarchically: the lower and middle courts are the jurisdiction of the Länder, the higher courts of the federal government. Besides its detailed provisions dividing governmental authority between the federal government and the Länder, the German federal system also implies special duties of fidelity and loyalty to the principle of federalism. What this means is that, in exercising their authority, the Länder are bound to respect one another’s interests and those of the federal government, and the federal government is required to respect the interests of the Länder, including due process and good faith behaviour in bargaining situations. This chapter surveys the essentials of these basic features of the distribution of powers and responsibilities in the Federal Republic of Germany. In the process, several major themes emerge. These include: the increasing strength and influence of federal law as compared with Länder law making and, thus, the increasing trend towards what I refer to as “unitarization” of the federation; the increasing dissatisfaction in the federation as a whole regarding entangled federal-state programs and financial arrangements that blur proper accountability; the complex interaction of federalLänder matters on European Union (EU) affairs; and, finally, the increasingly important role of the Bundesrat, the upper chamber of the federal Parliament, as both a house of review and as the focal point for intergovernmental negotiation not only over domestic matters but also over European and other international affairs.