The Gazette 1974

5300 Bonn,

Heerstr. 155,

West Germany

1 / 7 / 1974

Dear Mr. Gavan Duffy,

It was with the greatest interest that I read Mr. J.

Mathews' assessment of the situation of Federalism

in West Germany which you published in the May issue

of the

Law Gazette.

However, I feel I ought to add a

few observations which might throw a different light

upon the matter. I am sure the present Bonn Govern-

ment would like to see the Federal Council (Bundesrat)

in as inferior a position as depicted by Mr. Mathews.

Unfortunately for them this is not so. The opposition

in the Federal Assembly, the German equivalent of the

Dail, at present hold a majority in the Federal Council;

tliis is due to a number of Lander being governed

by the Christian Democratic Party, while Social and

Free Democrats form the Federal Government. Fre-

quently members of the Federal Government have

accused the Christian Democratic Party of using their

stronghold in the Federal Council to frustrate Govern-

ment Bills. The influence of the Federal Council and

its independence from other Federal authorities cannot

be doubted. The recent controversy of the two Cham-

bers on a bill amending the Criminal Act's section on

abortion and in fact generally legalising abortion when

committed during the first three months after the con-

ception of the foetus is another shining example of

this. It is true that it is a rare occasion when a bill

actually falls through owing to the Federal Council's

opposition. However if a compromise cannot be found

before the bill is presented to Parliament the Govern-

ment understandably will rather put it back than risk

a defeat. Although there is no such principle established

in the Basic

Law, the bulk of Government Bills

cannot be enacted unless expressly approved of by

the Federal Council. This is mainly due to the fact

that all Acts regulating the procedure of Lander ad-

ministration need the approval of the Federal Council.

A vast number of Acts must include such regulations as

the Federal Government lacks in any administrative

substructure; the constitutional principle being that

Federal Law is carried out by Lander authorities in

their own right. Thus the Lander Executive is neither

responsible to the Federal Government nor subject to

their instructions. Any administrative regulations to

avoid miscarriage of Federal Law must have the con-

sent of the Federal Council (art. 83, 84 of the Basic

Law). However, the approval must be given to the

Act as a whole, not only to the specific section dealing

with the administrative procedure. As far as Land Law

is concerned I am not aware of any federal statutes

determining its application or any other interference

by federal authorities. On balance the Federal Council

cannot be denied its quality as a highly-political

assembly.

As for the legislative jurisdiction, art. 70 of the Basic

Law unequivocally states that the legislative jurisdiction

on principle lies with the Lander. This is of the great-

est importance as legislation is gradually spreading into

all walks of life. Any addition to the enumerated areas

of federal jurisdiction needs the consent by two thirds

of the members in both Federal Chambers. The sub-

ject-matter named in Mr. Mathews' article—educa-

tion, culture, religious affairs, police, local government

etc.—are in practice as well as in theory covered by

Lander Acts and in fact the Bonn Parliament has

never intruded therein. Also one must not forget that

foreign affairs, defence, citizenship and immigration,

which Mr. Mathews sees as suggestive of the over-

whelming power of the federal legislator, even in the

United States have at all times been controlled by

Federal authorities.

One should bear in mind that notwithstanding the

importance of legislature there are other State activities

to consider. I have mentioned that domestic ad-

ministration is almost entirely a matter for the Lander.

Moreover the executive power in Germany and in-

deed in most European states has outgrown the stage

of merely performing Acts of Parliament or ensuring

that they are observed. The foundation of new univer-

sities, the construction of public swimming-pools and

roads, the running of local transports, etc., is done by

local authorities and Lander on their own or in co-

operation. All these projects may receive financial as-

sistance from the Federal Government, yet the latter

is not allowed to embark upon them. Finally the Lan-

der Courts are invested with full and original jurisdic-

tion in all judicial matters. No case can be brought be-

fore a Federal Court unless two Lander Courts—the

second being the appropriate Court of Appeal—have

given their decisions. In no event can a Federal Court

make inquiries into questions of facts. The only excep-

tion to this rule is the Federal Constitutional Court,

who functions as a guardian of the Constitution rather

than an umpire between the Federal State and the

Lander. However it was the Federal Constitutional

Court which in 1961 derived an all-important principle

from the federalistic structure of this country, namely

that both the Federal State and the Lander are

obliged to act in co-operation and in consideration of

each other's interests. This rule was established follow-

ing a complaint by the Lander Hessen and Hamburg

that the Federal State had founded its own Television

Company though at that time the Federal State and

the Lander were engaged in negotiating a TV Channel

based on a common effort.

Those are some of the reasons why I myself and

presumably a great many of my countrymen do not see

eye to eye with Mr. Mathews' conclusion that West

Germany is 'no longer a truly democratic or federal

state'. Yet I cannot but share Mr. Mathews' pessimistic

view as regards a federalistic Europe. Would not Mr.

Mathews agree that for once a lesser 'diversity in gov-

ernment and politics' would do much to advance the

envisaged European Union?

Yours faithfully,

Michael Berg.

Irish Banks' Standing Committee

Nassau House,

Nassau Street,

Dublin 2.

30 September 1974

The Secretary,

Incorporated Law Society,

The Kings' Hospital,

Blackhall Place,

Dublin 7.

Marking, Certifying and

Guaranteeing

Cheques before Issue

Dear Sir,

It has been decided by the member Banks of this

Committee that, with effect from 31 October 1974, the

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