|Agreement between the Federal Government and the Governments of the Länder on Cooperation in Matters relating to the European Union in Implementation of Section 9 of the Act on Cooperation between the Federal Government and Länder in Matters relating to the European Union of 29 October 1993 (Vereinbarung zwischen der Bundesregierung und den Regierungen der Länder über die Zusammenarbeit in Angelegenheiten der Europäischen Union in Ausführung von § 9 des Gesetzes über die Zusammenarbeit von Bund und Ländern in Angelegenheiten der Europäischen Union)
Agreement of 29 October 1993, as amended up to and including 8 June 1998.
Table of Contents
I. Briefing of the Bundesrat
II. Preparatory consultations
III. Statements of position by the Bundesrat
IV. Inclusion of Länder representatives in negotiations within European Union bodies
V. Procedure before the European courts
VI. Cooperation between the Permanent Representative and Länder representative offices in Brussels
VII. Application of this Agreement
VIII. Final provisions
Protocol Notes to the Agreement
Protocol Declaration on the Agreement
Protocol on Supplementary Agreement
1. Participation of the Bundesrat in framework decisions in accordance with Article 34 (2) b (new) of the EU Treaty (police and criminal justice)
2. Abstention in Council votes
3. Conduct of negotiations under the Mediation Procedure
4. Procedure in the Council of Research Ministers
5. Designation of judges and attorneys-general at the European Court of Justice and the Court of First Instance
In this text the following German terms are used:
Länder - the sixteen German federal states
Land - singular of Länder
Bundesrat - the Upper House of the German Parliament, comprising representatives of the Länder
Bundestag - the Lower House of the German Parliament, corresponding to the British House of Commons
Unless otherwise stated, all references in this text are to the Act on Cooperation between the Federal Government and the Länder in Matters relating to the European Union (the Act).
Unless otherwise stated, references to the "Agreement" are to the following Agreement.
"Framework legislation" refers to a specific legislative process under Germany's Basic Law (Article 75) under which the Federal Government issues general provisions in areas falling in principle within the competence of the Länder. The law requires that a certain legislative scope is left to the Länder.
This should be entirely distinguished from "framework decisions" under Article 34 (2) b of the Treaty on European Union.
The Federal Government and the Governments of the Länder are committed to achieving a united Europe and developing the European Union on the basis of the Founding Treaties of the European Communities (including subsequent law) and of the Treaty on European Union and to fulfilling the resulting obligations in terms of information and action arising from the relationship of mutual allegiance within a federal state. They cooperate closely and on a basis of mutual trust in accordance with Article 23 of the Basic Law and the Act issued in connection therewith. In implementation of the provisions of the Act, they hereby agree the following:
(1) The Federal Government shall brief the Bundesrat on an ongoing basis, normally in writing, on all projects relating to the European Union which could be of interest to the Länder. Specifically, the Federal Government shall for this purpose provide the Bundesrat with the following categories of material in its possession:
- of the European Commission and its departments addressed to the Council or otherwise made officially accessible to the Federal Government;
- of the European Council, the Council, informal ministerial meetings and Council bodies.
b) Reports and communications by institutions of the European Union on sessions
- of the European Council, the Council and informal ministerial meetings;
- of the Permanent Representatives' Committee and other committees or working groups of the Council;
- of the Commission's advisory bodies.
c) Reports by the Permanent Representative on
- sessions of the Council and Council groups, informal ministerial meetings and the Permanent Representatives' Committee;
- sessions of the European Parliament and its committees
- Commission decisions,
with regard to which, however, the recipients shall ensure that such reports are disclosed only to a restricted group of persons within the relevant highest Land authorities.
d) Documents and information on formal initiatives, statements of position and comments by the Federal Government addressed to European Union institutions.
The briefing obligation shall also cover projects relating to decisions by the member state government representatives in the Council.
Otherwise or additionally, the briefing obligation shall be carried out verbally through ongoing contacts.
(2) The Federal Government shall provide the Bundesrat with the documents at the earliest possible moment and by the shortest possible route.
(3) Subject to the provisions of data protection law, the ministers of the Federal Government and the Länder shall provide each other and the Bundesrat with access to inter-ministerial data bases on projects relating to the European Union. The Federal Government shall seek to ensure that EC data bases accessible to member state governments are also made accessible to the Bundesrat and the governments of the Länder. Detailed arrangements shall be provided for separately.
(1) The Federal Government ministry with overall responsibility for the relevant area shall invite the representatives of the Länder to consultations to agree a national negotiating position on projects in so far as the Bundesrat would be involved in, or the Länder would be responsible for, an equivalent area of national legislation. In this connection the parties will also seek to reach agreement on the application of Sections 5 and 6 to a project.
(2) Assessment of how a project should be classified under the provisions of the Act shall be based on the specific contents of the EC draft. Assignment of responsibility as between the Federal Government and the Länder shall be based on the existing division of responsibilities at the national level.
In assessing whether, in cases of concurrent or framework legislation, the Federal Government is entitled to legislate at the national level, such assessment shall also be subject to the criterion of the need for uniform federal legislation under Article 72 (2) of the Basic Law.
For the purpose of determining the legislative or regulatory focus of a project, the criterion shall be the subject-matter at the centre of such project or which is clearly the prime object of regulation. This is something that can be assessed only on a qualitative, not a quantitative, basis.
(3) In cases where at the national level cooperation between the Federal Government and the Länder is constitutionally required, the parties shall, notwithstanding the detailed provisions of the Act, seek to proceed jointly in establishing a national negotiating position, including at Community level.
(1) In order to enable the Bundesrat to deliver a statement of its position in good time, the Federal Government shall, without prejudice to the briefing obligation under Section I of this Agreement, inform the Bundesrat of the schedule for passage through the Council bodies of all projects relevant to the interests of the Länder.
Depending on the state of negotiations in each case, the Federal Government shall also inform the Bundesrat of the time available for submission of its position in the light of the schedule required by EU procedures.
(2) The Bundesrat shall be able to amend and supplement its statement of position in the course of deliberations on the project in the bodies of the European Union. For this purpose the Federal Government shall inform the Bundesrat, through ongoing contacts between the parties and in a form appropriate to the subject-matter, of any material changes in relation to such projects.
(3) Decisions by the Bundesrat include decisions made by its Chamber for European Affairs (Basic Law, Article 52 (3) a).
(4) If in Section 5 (2) cases the Federal Government does not agree with the stated position of the Bundesrat, it shall inform the Bundesrat accordingly and invite the Länder representatives designated by the Bundesrat to further consultations as soon as possible in order to achieve an agreement as far as possible. If no agreement comes about, the Bundesrat shall decide as soon as possible whether it wishes to uphold its stated position.
(5) If the Federal Government departs from the stated position of the Bundesrat, it shall, at the Bundesrat's request, inform the latter of the essential reasons for this once a project has been concluded.
(6) In so far as framework decisions pursuant to Article 34 (2) b of the European Treaty relate centrally to legislative or administrative areas for which the Länder are responsible, the Bundesrat's stated position shall be given considerable weight in accordance with Section 5 (2).
In all other cases Section 5 (1) shall apply, save that in so far as a specific provision would under national law be subject to the Bundesrat's consent, the Federal Government shall base its negotiations on the Bundesrat's stated position in the same way as on a stated position by the Bundestag on the same subject; it will agree to such a provision within a framework decision only with the consent of the Bundesrat, provided, however, that the Federal Government's responsibility for the state as a whole, including matters with a foreign, defence or integration policy dimension, shall be preserved.
(1) When Council or Commission bodies are considering projects on which the Bundesrat is entitled to state its position before the national negotiating position is finalised, the Federal Government shall inform the Bundesrat as soon as possible of the place, time and agenda of meetings of these bodies. The same shall apply as far as possible to preliminary activities by the Commission, such as formal hearings, consultations and expert discussions.
(2) Without prejudice to Section 6 (1), the Federal Government and the Länder governments shall jointly keep a list of those bodies of the Commission and the Council that are concerned with areas and types of legislation which at the national level would be subject to Bundesrat cooperation or the Bundesrat's sole responsibility, or which are material to the interests of the Länder. This list can be amended by mutual consent without the need for a formal amendment to this Agreement.
(3) The Bundesrat shall inform the Federal Government who the Länder representatives are and/or which Land ministry is sending such representatives. With regard to the bodies covered in the list referred to in (2), this information can also be provided on a list basis for a certain period of time. In the event that Länder representatives other than those named in such lists are appointed in individual cases, the Bundesrat shall advise accordingly before the negotiations.
If so requested, the Federal Government shall include at least one Länder representative, in Section 5 (2) cases two, provided it is able to do so.
The Federal Government will in each case do its best to enable the inclusion of a Länder representative in the negotiations.
If in Section 6 (1) cases no designated Länder representative takes part, or if no Länder representative has yet been designated by the Bundesrat, a meeting may in an individual case be attended by a representative.
(4) Inclusion of Länder representatives at informal meetings which relate primarily to areas in which the Länder have exclusive legislative responsibility shall in each case be a matter for agreement between the Federal Government and the Länder.
(5) For the purpose of Council meetings on projects relating primarily to areas in which the Länder have exclusive legislative competence, the Bundesrat shall designate, in accordance with Section 6 (2), members of the Länder governments at ministerial level to whom the Federal Government must transfer the conduct of negotiations. The Länder shall ensure that the Federal Republic of Germany is represented in accordance with Article 146 of the EC Treaty for this purpose. In the event that the representatives of the Länder are prevented from attending, a representative of the Federal Government or the Permanent Representative shall assume leadership of the negotiations.
(6) Representatives of the Länder shall be members of the German delegation. They shall take part in delegation discussions at the relevant venue during meetings. Prior joint preparations, which may also be proposed by Länder representatives, shall remain unaffected.
(7) Leadership of the delegation shall be the responsibility of the Federal Government and shall, without prejudice to the conduct of negotiations in relation to individual projects, be undertaken by the Federal Government's representative in consultation with the representative of the Länder. Where conduct of the negotiations is not transferred to a Länder representative, the latter can issue declarations in committees and working groups with the authorisation of the head of delegation.
(1) For the purpose of relevant procedural deadlines, the Federal Government shall advise the Bundesrat as soon as possible of all documents and information relating to proceedings before the European Court of Justice and the court of first instance to which the Federal Government is party. This also applies to judgements in proceedings to which the Federal Government is party.
(2) If in Section 7 (1) cases, pursuant to a decision by the Bundesrat, the Federal Government makes use of the complaint procedures foreseen in the Treaty on European Union, it shall also be responsible for preparing the related submission on the substance of the matter. The Länder shall then in due time provide a detailed opinion on the matter.
(3) (2) above shall apply accordingly if the Federal Government has occasion to submit an opinion in proceedings before the European Court of Justice.
The Federal Government shall, as far as is possible and necessary, support the Länder representative offices in specific matters relevant to their work through the Permanent Representative and, if appropriate, the bilateral embassy. Detailed arrangements shall be provided in direct contact between the Permanent Representative and the Länder representative offices.
(1) The provisions of this Agreement apply to all projects based on the Treaty on European Union - including "miscellaneous resolutions" and the preparation and conclusion of international treaties - and to projects based on the Treaty among 11 Member States on Social Policy.
(2) With regard to intergovernmental conferences under Article N of the EU Treaty, the following applies:
- The Bundesrat shall be briefed on negotiations to the extent that the interests of the Länder could be affected.
- The Federal Government shall take into account the stated position of the Bundesrat for the purpose of negotiations, applying Section 5 accordingly.
- The Länder shall be entitled to be represented at ministerial meetings relating to pending intergovernmental conferences by one observer, or at most two observers in the case of areas falling within the exclusive responsibility of the Länder
- The same shall apply to the intergovernmental conferences themselves to the extent that this is possible on a case to case basis.
(3) With regard to the enlargement negotiations under Article O of the EU Treaty, the following shall apply:
- The Bundesrat shall be briefed on the negotiations in so far as Länder interests are affected.
- The Federal Government shall take into account the stated position of the Bundesrat for the purpose of the negotiations, applying Section 5 of the Act accordingly.
- The Länder shall be entitled to be represented by one representative at ministerial meetings to coordinate the national negotiating position. The same shall apply as far as possible to the Council's ad-hoc Enlargement Group if the specific area for discussion falls within the exclusive legislative responsibility of the Länder or affects their material interests.
(4) With regard to the association negotiations under Article 238 of the EC Treaty and for the purpose of the Treaties under Article 113 (3) of the EC Treaty, the provisions of the Act and of this Agreement apply, save that the participation of the Länder representative shall be restricted to the negotiations within the Council group on the Commission's mandate.
(1) The Act and this Agreement replace the procedure under Article 2 of the act of 19 December 1986 on the Single European Act and the agreement concluded in this connection between the Federal Government and the governments of the Länder.
(2) The Federal Government and the governments of the Länder shall ensure, through appropriate institutional and organisational arrangements, that the Federal Republic of Germany's ability to act effectively and to conduct negotiations at EC level in a flexible manner are maintained.
(3) Additional forms of specific cooperation and contacts between the Federal Government and the Länder - including in the areas of education and culture - shall be continued in accordance with Article 23 of the Basic Law and the Act.
(4) In Section 5 (2) cases, the consent of the Federal Government shall be required where decisions are involved through which it could incur increases in federal expenditure or reductions in federal income.
(5) It shall be the responsibility of the Länder observer to support the Länder in making use of their rights under the Act. His or her briefing and participation rights in relation to the institutions and bodies of the European Community and to the Federal Government shall remain valid.
(6) The Länder shall convey to the Federal Government their proposals for the composition of the Committee of the Regions in due time before the expiry of the current mandate period.
(7) In accordance with Section 11, the Agreement does not apply to the European Union's Common Foreign and Security Policy.
(8) The Agreement shall take effect on the day of the establishment of the European Union. The Federal Government and the Länder shall review this Agreement on 1 July 1996 in the light of experience to date, in particular in relation to the application of Sections 5 and 6 in the areas of concurrent and framework legislation.
1. European Communities documents shall normally be forwarded unclassified for security purposes. Communications by EC institutions regarding classified status shall be treated accordingly by the Bundesrat.
Where national security classification is required under Section I (1) of the Memorandum of the Federal Minister of the Interior of 10 October 1985, this shall be carried out by the Federal Ministry of Economics or other originating ministry prior to dispatch to the Bundesrat.
2. The Federal Government ministry with coordinating responsibility in each case shall ensure that, in the case of projects relating to legislative areas falling within the exclusive responsibility of the Länder or affecting their material interests, preliminary Commission documents in the possession of the ministry which could be of importance to the Länder in preparing their position are also made available to the Bundesrat. This also applies to inofficial documents ("non-papers").
In connection with the signature of this Agreement, the Länder hereby put on record the following:
1. The Länder are of the view that, without prejudice to the involvement of the Bundesrat in the individual case, in the light of the clearly-demarcated new powers provided under the Treaty on European Union the "decisions of representatives of governments assembled in the Council" and the "miscellaneous decisions" referred to in VII (1) above can have no further importance in future and that these types of action, which lead to a blurring of responsibility demarcations, should in future be avoided.
2. The Länder hereby restate their interpretation of Section 5 (3), namely, that a project thereunder must also be subject to the agreement of the Bundesrat for the purpose of an abstention in a Council vote.
3. On the final paragraph of IV (3) above, the Länder deem clarification necessary as follows: in the event that no Länder representative has yet been designated by the Bundesrat, the Länder observer can attend the meetings; in the event that a Länder representative has been designated by the Bundesrat but is unable to attend, other officials of the designated Land or, failing this, the Länder observer can attend.
4. With regard to VIII (3) above, the Länder hereby refer to the common understanding arising from the Conference of Minister-Presidents and the meeting of the Heads of Government of the Federal Government and the Länder on 17 June 1993, according to which, in accordance with this Agreement, the existing practice of cooperation between the Federal Government and the Länder in the areas of responsibility of the Conference of Ministers of Education and Culture remains unaffected.
5. The Länder hereby note their assumption that internal procedures of the Länder regarding participation of the Land parliaments in EC matters under existing provisions are unaffected by this Agreement.
At the meeting agreed between the Federal Chancellor and the Heads of Government of the Länder on 18 December 1997, the representatives of the Federal Government and the Länder reached the following conclusions:
After detailed discussion, and without prejudice to the legal positions on both sides as recorded in the Bundesrat's statement of position of 28 November 1997 and the Federal Government's reply of 2 December 1997, the following additions are hereby made to the Agreement:
a) In so far as framework decisions under Article 34 (2) b of the EU Treaty relate primarily to legislative and administrative responsibilities of the Länder, the Bundesrat's stated position shall be given considerable weight in accordance with Section 5 (2).
b) In all other cases, Section 5 (1) shall apply, subject to the following condition.
In so far as at the national level a specific provision would be subject to the Bundesrat's consent, the Federal Government shall base its negotiations on the Bundesrat's stated position in the same way as it would on a Bundestag position on the same matter; it shall agree to such a provision in the context of a framework decision only in consultation with the Bundesrat, provided, however, that the overall national responsibility of the Federal Government, including in areas relating to foreign, defence and integration policy, shall be preserved.
After detailed discussion of conflicting legal positions, the Federal Government hereby declares that where the envisaged agreement with the Bundesrat does not come about in relation to a provision it will use its right of abstention only in exceptional cases. Where such an abstention is intended, it will notify the Bundesrat accordingly as soon as possible.
It is agreed between the parties that the transfer of the conduct of negotiations at Council meetings to the minister of a Land also covers participation in the Mediation Procedure between the Council of the European Union and the European Parliament, provided rights of the Federal Republic of Germany as holder of the Presidency are unaffected. In accordance with Section IV (5) of the Agreement, the Länder shall assume the conduct of the negotiations through the designated Land minister or through a representative at the political level of said minister's or of another Land.
The Federal Government notes Section III (4) of the Bundesrat's statement of opinion, according to which the Federal Government and the Länder should also proceed jointly at EC level in the area of research policy in accordance with Article 91 b of the Basic Law. It will communicate this to the authorities concerned and will seek to ensure joint procedure in accordance with Section II (3) of the Agreement.
The Federal Government notes Chapter Section III (5) of the Bundesrat's statement of opinion and hereby confirms that it extends its briefing obligation under Article 23 (2) of the Basic Law to cover the appointment of judges and attorneys-general to the European Court of Justice and the Court of First Instance.
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