Notes transmitted by the Parliaments represented in the  Working Group

 GERMANY

 The legislative process

Constitutional practice in the Federal Republic of Germany has led to a clear separation being made between the drafting phase of legislation, the "initiative phase", and the deliberation phase; this separation is not required under constitutional law. The right to initiate legislation is held by the Federal Government, the Bundesrat (Federal Council), and a number of MPs in the Bundestag (Parliament) corresponding to the number of MPs required to form a parliamentary party group. In reality, however, in most cases draft legislation leading to laws is drawn up in the ministries. Parliamentary deliberation only begins after a draft bill has been drawn up and submitted. The entire phase prior to that occurs outside the -parliamentary deliberation. The implementation phase, i.e. the phase that begins after the law goes into effect and is of interest with regard to monitoring the process of executing the law, is as a rule carried out by parliament indirectly by monitoring executive government activities. In the process of deliberating legislation, prognoses are made in an attempt to anticipate implementation problems (legislation impact assessment).

 Initiative phase

In the current legislative term approximately 40% of the draft bills put forward thus far have been initiated by the Federal Government, 15% by the Bundesrat (in which case it should be said that the original draft bills are submitted in the Bundesrat by the state governments), and 46% by the party groups in the Bundestag; of which nearly 18% are submitted by the governing party groups. The major part of the work of drafting legislation is carried out by the Federal Government; on the one hand, this is because it initiates most of the draft legislation that is important and has prospects of being successful (62% of the bills passed are proposed by the Government, 26% are initiatives put forward by the party groups in parliament, and nearly all of them are submitted by or together with the party groups in the governing coalition); on the other hand, this is because a considerable part of the bills proposed by the party groups were originally drawn up by the Federal Government or, in the case of draft legislation proposed by the opposition party groups, by state governments.

a) Ideally, the procedure in the initiative phase (i.e. as far as it is being carried out by the Federal Government) should be as follows:

First of all the responsible working unit in the ministry has to establish whether or not a law is needed. For this there is a list of assessment questions (the so-called "Blue Assessment Questions" which were integrated into the Joint Rules of Procedure for the Federal Ministries (Part II). After an assessment of the initial situation has been carried out a statement has to be submitted to the Head of the Ministry in question requesting a decision on whether the bill should be initiated or not. After the decision is taken the Federal Chancellery has to be informed. Then contact is established with all authorities able to make the necessary contributions, e.g. agencies under ministerial jurisdiction, various sections of the ministry in question, various sections of other ministries, the academic community, and with the state governments. Under certain conditions (Sections 61 and 62 of the Joint Rules of Procedure of the Federal Ministries, Part I) a commission is to be formed as well. Experts can also be asked to give their opinions in reports.

The initial draft of the bill of the working unit is drawn up on the basis of the information gathered in this way. After the initial draft has been completed other relevant ministerial sections are involved and asked if they have any requests for amendments. In this way a ministerial draft is created (Section 28 paragraph 1 of the Joint Rules of Procedure of the Federal Ministries, Part II). After this the other federal ministries are involved and, if necessary, members of parliament are notified (Section 70 of the Joint Rules of Procedure of the Federal Ministries, Part I, Section 23 paragraph 2 and Section 27, paragraph 1 of the Joint Rules of Procedure of the Federal Ministries, Part II). After assessment of the amendment proposals a final text is agreed on and the ministerial draft bill is completed.

The relevant state ministries are then informed of the draft bill, as are the relevant local authority associations, expert organisations and expert associations, as well as the party groups and relevant members of parliament. Amendment proposals resulting from this are used to produce a revised ministerial draft. This once again has to be agreed on with the other ministries.

When this coordination process has been completed and all amendment proposals have been taken into account in the text of the draft legislation, a so-called legal formality assessment is then carried out by the Federal Ministry of Justice (Section 38, Joint Rules of Procedure of the Federal Government, Part II), i.e. a cross validation with all other provisions of law, and the Society for the German Language must be involved (Section 37 of the Joint Rules of Procedure of the Federal Government, Part II). Once its ideas have been worked into the text the draft bill is "ready for the cabinet". A cabinet proposal accompanied by a substantial amount of information on the results of the procedure described thus far is then decided on by the Federal Government. The cabinet draft is then sent to the Bundesrat (Federal Council).

Under Section 40 paragraph 5 of the Joint Rules of Procedure of the Federal Ministries, Part II, each bill is to be preceded by an overview in the shape of an introductory page with the following outline structure:

A) Objective
B) Solution
C) Alternatives
D) Costs for public budgets


1. budget expenditure without implementation expenses
2. implementation expenses


E) Other costs (costs for the economy, costs for social security)

b) This relatively detailed description, by no means, fails to recognise that the procedures followed in practice are not always as described here. It can make it clear, however, on the basis of examples, how different kinds of expertise can be brought into the process of drafting legislation. In connection with the initial assessment to determine whether or not a bill is required, the question in particular needs to be raised whether the purpose of the bill can be attained by lower-level regulations or simply by means of administrative action. Reform considerations regarding the initiative phase are orientated towards assessing more than ever the possibility of a "zero option" (i.e. no bill) as well as to a greater extent involving advisory council experts and non-governmental organisations in the decision-making processes than before. In connection with major legislative projects aimed at systematising and codifying large numbers of rules, regulations and judicial laws it is often the case that an academic commission is created in the assessment phase whose members should also include experienced practitioners.

The obligation of the Federal Government to include in the reasons given for the legislation references the budget effects of the bill and also to describe its effects on the overall equilibrium of the economy, on price trends, etc. is being expanded more and more in the direction of a comprehensive impact assessment.

Under Section 7 paragraph 2 of the Federal Budget Rules appropriate cost-effectiveness studies are to be carried out for all measures with financial effects. Under paragraph 3 a cost accounting system is to be introduced in the appropriate areas. In connection with determining the cost impacts of legislation the Federal Ministry of the Interior formulated guidelines together with the Interior Ministry of the State of Baden-Württemberg to assist in the process of determining the impact of legislation on costs. The impact of legislation is understood to be the effects of a law in the overall area of application as well as on the societal and individual levels. They include intended and unintended consequences of a financial and non-financial nature. It is doubtful, however, whether the consequences of the implementation of legislation can be clearly calculated. On the one hand, this is connected with the circumstance that individual factors regularly have to be weighed up in connection with making prognoses and that on the other hand, these factors have a political component. In addition, statistics, if any, are often difficult to use in this work, since they are not always compiled at the same time as the facts that have been determined. Individual case studies, on the other hand, would require a considerable amount of time to complete.

 Deliberation phase

The deliberation phase in parliament is divided up into three "readings". The first reading provides an opportunity for a general debate, followed by referral to a committee in charge and several advisory committees. The recommendation of which discussions on the committee were concluded as well as an accompanying report are discussed in the second reading. Each member of parliament has an opportunity to request amendments for committee recommendations. The third reading, which generally follows immediately after the second reading, provides an opportunity for a comprehensive presentation of views on the legislation. It ends with the final vote on the bill.

The central part of the parliamentary deliberation phase is committee consultations. Committee meetings are not public. However, they are reported on by the Press Office of the German Bundestag. Every major draft bill is subjected to a public hearing held by experts and non-governmental organisations. The relevant committee can also request reports from the Office of Technology Impact Assessment or from experts.

The question has been discussed on numerous occasions as to whether the so-called Blue Assessment Questions which the Federal Government applies to draft legislation can also be a standard for committee consultations. In 1985 the German Bundestag Committee on the Scrutiny of Elections, Immunity and Rules of Procedure welcomed these Blue Assessment Questions as guidelines to assist members of parliament in their consultations on draft legislation on the various committees. Discussion of the draft of a Guideline for Assessing the Necessity, Practicability, Effectiveness, and Clarity of Draft Legislation on the Committees of the German Bundestag was never completed and as a result the draft was never approved.

In parliament the parliamentary right to ask questions, commissions of inquiry, investigating committees, hearings, legislative tests, or management game scenarios can be used for purposes of legislation impact assessment. Traditional impact assessment functions are given in the duties of the Budget Committee, which is responsible for deliberations on stability legislation, budget legislation, and fiscal legislation, in the activities of the Committee on Science, Research, Technology and Technology Impact Assessment, which can carry out technology assessment analyses and assessments, and as a result of the fact that the committees can include in their consultations EU-related legislation in preparation for EU legislative projects.

In the 13th Legislative Term there were, for instance, the technology impact assessment reports and the management game scenario of the Committee on Regional Planning, Building and Urban Development with regard to the 1996 Building and Regional Planning Act. A further means with which legislative government can impose a certain amount of quality control is by attaching time limits to legislation. There are various alternatives here, for instance the alternative that the legislation can be repealed after a specified period of time, the alternative that there is a need for the legislation to be confirmed after a specified period of time, or the alternative that the legislation can be finalised only after a set date. There is also the option of inserting so-called "experimental clauses" in legislation, which makes it possible to deviate from individual provisions of the law to a certain, narrowly defined extent for a specified period of time. In the case of delegated legislation, i.e. the large area in which the Federal Government legislates on the basis of specific authority delegated by parliament, numerous control mechanisms of this kind have already been introduced. There are regulations, which parliament can repeal after a certain period of time has elapsed, and there are regulations that require confirmation. On the one hand, there are complaints about the large numbers of legal regulations of this kind; on the other hand, there is also the need for Parliament to concentrate more strongly on general principles and to leave the matter of details up to the Federal Government.

The primary option available for monitoring the success of legislation continues to be the traditional option of imposing the requirement on the Federal Government to produce reports on the implementation of legislation. Accordingly, more and more often committee recommendations on draft legislation are being connected with a request to the German Bundestag to approve the imposing of a report requirement on the Federal Government in the relevant plenary session.