Germany: Cooperation with the Länder

Germany:
Cooperation with the Länder
RUDOLF HRBEK
From Hamburg to Bavaria, from the Saarland to Saxony, Germany’s
constituent units, its 16 Länder, have significant powers increased by the
federal reform of 2006. In the German federal system, the Länder have the
characteristics of states, each with its own constitutional order which has to
conform to basic principles laid down in the German Constitution of 1949
(the “Basic Law”). The Constitution grants certain exclusive powers to the
Länder, and other exclusive powers to the federal government, with a
broad field of concurrent powers shared by both orders of government.
The Constitution stipulates as a general rule that “the exercise of state
powers and the discharge of state functions is a matter for the Länder”,
“except as otherwise provided or permitted by this Basic Law” (Article 30).
What does this mean for the conduct of foreign relations?
The Constitution gives the federal government the predominant role in
foreign relations but the Länder are also given a role. The key clause about
foreign relations in the Constitution is Article 32: “Relations with foreign
states shall be conducted by the federal government.” But the Länder are
also given a role: “before the conclusion of a treaty affecting the special
circumstances of a Land, that Land shall be consulted in timely fashion.”
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This means that although the federal government possesses the power to
make treaties, it has to take into account any substantial concerns of an
individual Land through consultation. Furthermore, this article provides
that the Länder “may conclude treaties with foreign states with the consent
of the federal government”, if the Länder have the power to legislate in the
specific policy fields that the treaties address. These constitutional provisions
imply a spirit of mutual cooperation and coordination between the
Länder and the federal government.
In 1957, the federation and the Länder even signed an accord – the socalled
“Lindauer Agreement” – on how to cooperate in foreign relations
in practical terms. The agreement was followed by additional institutional
and procedural provisions. Experiences from the past decades
show that these provisions have, in general, worked well and that both
sides have managed successfully to use their respective powers and cooperate
properly.
A large part of such activities by the Länder falls into the category of
cross-border relations. Because of Germany’s location in central Europe,
with neighbouring countries on all borders, the number and intensity of
cross-border relations have grown considerably. A well established example
is cooperation along the Upper Rhine River among Germany, France and
Switzerland. More recently cross-border activities and agreements have
emerged vis-à-vis Central and Eastern European countries and their
respective regions. This type of Länder activity has been functioning well
and has not created conflicts or problems with the federal government.
But foreign relations are not just the negotiation of legally binding
treaties and the Länder are active in other capacities. And it is particularly
this category of foreign – or external – relations in which the Länder
appear as actors. For example, politicians from the government or the legislature
of a Land sometimes meet with political representatives of foreign
states. Public statements are sometimes made on such occasions on issues
about which the respective Land representatives and the federal government
do not agree. A Land may also establish public information offices
abroad. Such Länder activities fall into a “grey area” between foreign policy
and political statements by a Land government. These activities have resulted
in criticism by the federal government, which has sometimes called such
activities “auxiliary foreign policy,” – something it regards as beyond what
the Länder are allowed and authorized to do. The response of the Länder
has always been that their “external” activities are connected and overlap

with typical and genuine Länder tasks and are part of the Länder’s constitutional
powers.
Seen from the federal government’s point of view, such autonomous
activities of individual Länder are a threat to a consistent foreign policy and
the ability of Germany to perform on the world stage. Hearing a plurality
of German voices may confuse representatives of other countries, and
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26 Rudolf Hrbek
public statements on an international issue by a Land or a group of Länder
may be harmful to Germany’s interests as seen and formulated by the
federal government. Berlin complains that it does not receive full information
from the Länder. In response, the Länder insist on their right to
engage in foreign relations and they claim that their activities would not
interfere with the federal government’s domain. They do not see the
necessity to agree on a formal “code of conduct” for the relations between
Länder and federal government in this area.
For certain issues, the management of communication
and the practice of transparency will
continue to be a challenge to both sides.
A special case in point is the role that the
federal government and the Länder play in
European Union (EU) matters. Although EU
policy is not foreign policy in the traditional
sense, it is not a “domestic” issue either. It is a
field which has grown considerably and rapidly
during the past fifteen years and in which both
the federal government and the Länder are
involved. A new article (Article 23 Basic Law) was
adopted in 1992, in connection with the entering into force of the
Maastricht Treaty. This amendment has given the Länder formal rights of
participation in dealing with EU matters at the domestic and EU levels.
The exercise of this right requires prior coordination between the Länder
and the federal governments, but they disagree on how this affects efficiency
in pursuing German interests. The Länder have set up and developed
autonomous EU activities through their official representations in
Brussels and by direct lobbying. They have acquired the role of very active
co-players in the Brussels arena.
In the debate on reform in German federalism, which intensified with
the establishment of a special commission in late 2003, the federal
government made an attempt to cut some of the Länder rights in dealing
with EU matters. The Länder, however, successfully insisted on maintaining
their role: the reform package which was passed with the necessary twothirds-
majorities in both Bundestag (the German lower house) and Bundesrat
(the German upper house) in the summer of 2006 did not reduce the
strength of the Länder in this area.
In conclusion, the federal government and the Länder are both involved
in foreign relations and have on the whole successfully managed to cooperate
and to coordinate efforts. This approach is in line with the general
feature of German federalism as falling into the category of “co-operative”
federalism. This does, however, not exclude problems or even tensions
between both sides in a number of individual cases. To find the proper
balance will remain a challenge for both parties.
The Länder insist on
their right to
engage in foreign
relations and they
claim that their
activities would not
interfere with the
federal government’s
domain.
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