Federalism reform II

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The federalism reform is an amendment of the Basic Law , the relations between the Federation and the countries concerned. It was passed in 2009 by the German Bundestag and Bundesrat with the necessary two-thirds majority and came into force on August 1, 2009.

After the first stage of federalism reform in September 2006, which primarily aimed at a clearer allocation of competencies to the federal and state levels, the second stage focused on reforming state financial relations. The approval of the FDP to the results of the federalism reform 2006, the votes of which were necessary for a two-thirds majority required for amendments to the Basic Law , was tied to the fact that appropriate steps were taken for a sustainable development of the public budgets in the federal and state levels. In this matter too, reform was absolutely necessary; the last "Great Financial Reform" dated back almost forty years (1967) and represented a modernization on a Keynesian basis, which in 2007 was no longer felt by many to be in keeping with the times .

Procedure and procedure

On 14./15. In December 2006, the Bundestag and Bundesrat set up the “Commission for the Modernization of Federal-State Financial Relations” to work out a Federalism Reform II. The Bundestag and Bundesrat were equally represented with 16 members and 16 deputy members each. Four of the members on the Bundestag side belonged to the federal government (the Federal Minister of Justice , the Federal Minister of the Interior , the Federal Minister of Finance and the Head of the Federal Chancellery ); On the Länder side, there were 13 Prime Ministers and, in the case of Rhineland-Palatinate, Brandenburg and Thuringia, the respective finance ministers. Four representatives of the state parliaments, a state parliament president and a parliamentary group leader each from the SPD , FDP and Bündnis 90 / Die Grünen took part with the right to speak and propose , but did not have the right to vote . Three representatives of the central municipal associations were members - in the first reform they were only classified as "permanent guests", since the municipalities are not regarded as a separate, third state level in the German state - and were given the right to speak. The SPD parliamentary group leader Peter Struck was elected chairman of the commission for the Bundestag and Günther Oettinger , then Prime Minister of Baden-Württemberg, for the Bundesrat . Their representatives were the FDP member of the Bundestag Ernst Burgbacher and Jens Böhrnsen , at the time mayor and president of the Senate of Bremen . The commission was constituted on March 8, 2007. It was tasked with developing proposals for modernizing federal-state financial relations with the aim of adapting them to the changed framework conditions inside and outside Germany, particularly for growth and employment policy. The proposals should lead to "strengthening the autonomy of the local authorities and their financial resources appropriate to their tasks".

A so-called "open list of topics" was attached to the appointment decision:

1. household economics; Budgetary crisis prevention:

  • Establishment of an early warning system (e.g. upgrading the Financial Planning Council ) to identify and combat budget crises
  • Development of material criteria for permissible indebtedness (introduction of indebtedness limits and “debt brakes”), amendment of Articles 109 and 115 of the Basic Law to avoid budget emergencies
  • Creation of suitable instruments to implement these criteria (incentive systems, sanctions, creditors' participation in the costs of a financial crisis)
  • Compensation of structural differences between the countries
  • Creation of comparable data bases

2. Management of existing budget crises - development of concepts for restructuring and extended autonomy (in particular taking into account the requirements of the Federal Constitutional Court )

3. Task criticism and standard setting

4. Debureaucratisation and increased efficiency:

  • Task unbundling in the area of ​​public administration
  • Cross-level bundling of administrative tasks
  • Introduction of IT standards and systems
  • Simplification of transnational regulations

5. Strengthening of the financial resources appropriate to the task, including processing of the audit order for 2008 from the Financial Equalization Act

6. Strengthening the ownership of local authorities

7. Increased cooperation and opportunities to facilitate the voluntary association of countries

8. Bundling of specialist political services and effects on federal-state financial relations

9. Other

After a phase of agreement on the mandate and the review of materials within the commission and with the involvement of numerous experts who had the opportunity to make extensive statements at two hearings, the focus of the work shifted relatively quickly to reforming the rules on new borrowing. Against the background of constantly growing national debts - around € 1.5 trillion at the time of the negotiations - the 1967 Growth and Stability Act was perceived as less and less up-to-date and appropriate to the problem.

In February 2008, the Federal Minister of Finance presented a paper on behalf of the Federal Government on “The necessity and content of a debt regulation in the Basic Law”, which was based on the European Stability and Growth Pact ( close-to-balance principle / KDrs. 96 ). This marked the departure from the previous approach to limiting debt - the orientation towards investments; the further deliberations on this moved only within the framework of the principles of Community law. The proposal envisaged a maximum limit for annual structural borrowing of 0.5% of the gross domestic product ; the federal government should be entitled to 0.35% of GDP as new debt leeway, the federal states 0.15%. In addition, a cyclical debt component and an exception rule for disasters should be allowed.

The subsequent negotiations were extremely controversial; especially because the starting situation of the countries for the introduction of new and stricter debt limits was seen as very different, also among the countries themselves. The states of Bremen , Saarland and Schleswig-Holstein asserted that they were not in a position to subject their households to such strict regulations and called for old debt assistance, while financially strong states saw their contribution to the state financial equalization as more than sufficient under the previous framework conditions , and did not want to allow themselves to be additionally burdened in achieving their political goal of balanced state budgets. In a specially set up budget analysis working group, the budgets of these three federal states were carefully examined by the Federal Ministry of Finance as well as the federal states of Bavaria and Berlin . The working group was unable to come to an agreement on a common summary despite extensive material comparing the national budgets (KDrs. 102). In the area of ​​tax administration, the federal government and the federal states could not agree on a concentration of administration at the federal level, and many questions remained unanswered between the federal government and the federal states with regard to the reform of the national IT administration and control. As a result, several project groups were set up over the summer of 2008 to develop reform proposals in the area of ​​administration and finance. But in autumn 2008 the results were not discussed, as originally planned; negotiations stalled due to the outbreak of the financial market crisis. They were only resumed in January 2009, but then completed very quickly; the results were available in March 2009 (KDrs. 174).

This was followed by changes to Art. 91c, 91d, 104b, 109, 109a, 115, 143d GG and corresponding accompanying laws.

decisions

Introduction of new debt limits

( Art. 109 GG, Art. 115 GG / Article 115 Law , Consolidation Aid Act , Stability Council Act )

In principle, the budgets of the federal and state governments are to be balanced without any income from loans. Exceptions to the borrowing ban for the federal and state governments are permitted to a limited extent:

  • in the case of an economic development deviating from the normal situation. Borrowing can be permitted in the downturn if it is repaid during the upswing (“cyclical component”). The federal government must introduce a control account for this.
  • in cases of natural disasters or exceptional emergency situations, if at the same time appropriate repayment arrangements are provided. Whether such a situation exists is decided for the Federation by a majority in the Bundestag.

For the federal budget, it is also permissible to use income from loans up to 0.35% of gross domestic product (GDP) annually ("structural component" - Art. 109 Para. 3 Clause 4 and Art. 115 GG).

A structural component is not planned for the Länder; As of 2020, they will no longer be allowed to recruit income from loans. The states themselves regulate the details of this within the framework of their constitutional competences.

The debt limits of the municipalities are not or only indirectly subject to the new law; the federal states are responsible for the correct financial management of the state as a whole within the framework of the respective state constitution.

These new regulations in Articles 109 and 115 of the Basic Law begin in the 2011 budget year. Compliance with the requirement of the balanced budget is mandatory for the Federal Government from 2016 and for the Länder from 2020 (transitional regulation in Article 143d (1) of the Basic Law) . The five financially weakest federal states will receive a so-called "consolidation aid" amounting to EUR 800 million annually until 2019, for a total of EUR 7.2 billion (Bremen EUR 300 million, Saarland EUR 260 million, Berlin, Saxony-Anhalt and Schleswig- Holstein € 80 million annually each). The federal and state governments bear half of the funding for this aid. A prerequisite for the granting of aid is adherence to a consolidation path that enables the countries concerned to balance their budgets in ten steps by 2020 at the latest and then comply with the new debt regulation. So a tenth of the structural funding deficit of 2010 should be saved at least annually. Compliance with this is checked every year; in the event of non-compliance, the consolidation aid will be deleted without replacement. The details on this should be specifically agreed bilaterally through administrative agreements between the federal government and the individual recipient countries ( Art. 143d Paragraphs 2 and 3 of the Basic Law as well as the Implementing Act on Art. 143d of the Basic Law); these administrative arrangements have not yet been concluded.

In order to avoid future budget emergencies, the introduction of a cooperative early warning system was also agreed. The Stability Council , to which the finance ministers from the Federation and the Länder as well as the Federal Minister of Economics and Technology belong, is to oversee the budget management of the Federation and the Länder as the successor to the Financial Planning Council , which was abolished in 2010 and which - unlike the Stability Council - also included local representatives. It also monitors the consolidation progress of the five countries receiving interest rate subsidies and, if necessary, initiates the planned sanctions.

In connection with the new regulations in Articles 109 and 115 of the Basic Law, the federal government's public financial aid was also reformed.

The amendment to Art. 104b of the Basic Law in the course of the first stage of the federal reform had restricted the possibility of granting federal financial aid to those areas in which only the federal government had legislative powers. In the process of combating the financial market and economic crisis in 2009 (Investment Allowance Act), it became clear to what extent this restricted the possibilities of financing in the federal states. For example, possible and necessary renovation measures by educational institutions had to be dispensed with (education is the competence of the federal states) or these had to be reinterpreted in terms of their contribution to energy-efficient renovation (energy policy is the competence of the federal government: the legislative competence of the federal government arises from Art 74 para. 1 no. 24 GG (air pollution control) and Art. 74 para. 1 no. 29 GG (nature conservation)). The Commission has therefore decided to lift this restriction at least in the special case of a natural disaster or an exceptional emergency. This is to ensure that the programs necessary to cope with such emergency situations to stimulate public investment can be carried out with the support of the federal government in all areas of investment.

Taxes

In the tax administration, the federal government's goal of a uniform and central tax administration at the Federal Ministry of Finance was not achieved, but improvements in enforcement were achieved:

  • The rights of the Federal Central Tax Office to participate in external audits have been strengthened and the possibility of its data access to tax data of the federal states has been improved;
  • the Federal Ministry of Finance can agree implementation targets with the highest tax authorities of the federal states (controlling);
  • the tax deduction procedure for persons with limited tax liability is centralized at the Federal Central Tax Office .

The competence for the insurance tax , until then federal tax , which was administered by the states, was transferred to the federal government and overlaps with the fire protection tax were eliminated.

Law on the connection of the information technology networks of the federal and state governments

Another important change is the improved administrative cooperation in the field of information technology with the aim of overcoming the existing, historically grown division of responsibilities, eliminating duplicate structures and achieving a secure, effective and inexpensive IT infrastructure in public administration.

Article 91c of the Basic Law, which has been newly inserted into the Basic Law, provides that the federal and state governments should work together in IT matters in planning, setting up and operating and can adopt common interoperability and security standards for the entire German administration. The federal government is given the authority to set up and operate a federal-state network. The details were regulated in a state treaty negotiated between the Federal Government and the Länder in the Federalism Reform Commission, which has since been signed; for the IT connection network, however, the Bundestag and Bundesrat have regulated the details through a law passed with the federalism reform implementing Article 91c paragraph 4 of the Basic Law (IT-NetzG) . This addition to Article 91c of the Basic Law is likely to be the world's first infrastructure regulation for information technology with constitutional status.

Benchmarks

Performance comparisons ( benchmarking ) in public administration were in the Commission at the request of the Federal side, but quite controversial. No one questioned that they represent helpful instruments for modernizing administration and that they need to be further developed. In its ruling on Berlin's action for recognition of an extreme budgetary emergency in October 2006, the Federal Constitutional Court clearly pointed out that the household data of the federal and state governments are currently insufficiently comparable. The federal, state and local governments carry out benchmark comparisons at various levels and are working on improvements. The point of contention, however, was the degree of binding nature of benchmark studies and the question of who was in control of the relevant processes. The Commission has agreed to create a constitutional provision for voluntary cooperation between the Federation and the Länder in performance comparisons in the administration with a new Art. 91d GG in the expectation of promoting the willingness to carry out such comparisons in Germany. Work is still underway to implement this constitutional amendment.

Federal Cancer Registry Data Act

The Federal Ministry of Health had submitted a draft for a Federal Cancer Register Data Act (BKRG) to the Federalism Commission. This register was controversial for a long time among the federal and state governments, but not as such, but rather the question of jurisdiction was in the foreground. Up until now, the federal states had kept such registers independently. On May 29, 2009, the Bundestag finally passed the Federal Cancer Registry Data Act, which strengthens the Center for Cancer Registry Data and formally assigns the clinical cancer registries an official role in cancer registration.

criticism

The reform of the federal-state financial relations has been criticized from numerous sides. The first critic to speak up was the chairman of the commission, Peter Struck, who, when presenting the results, pointed out that the constitutional aesthetics had suffered from many small-scale regulations and the second stage of the reform in any case one A third must follow, which aims to reorganize the countries.

The new debt limit is also fundamentally heavily criticized, u. a. generally because of the transition to the close-to-balance principle, the net zero indebtedness for the states (no structural indebtedness component ) and the restriction of the rights of the state parliaments by Art. 109 GG. The state parliament of Schleswig-Holstein has for this reason, in February 2010, a complaint to the Federal Constitutional Court submitted that was rejected on 19 August 2011 by the BVG for technical reasons.

literature

Web links

Individual evidence

  1. ↑ Law amending the Basic Law for the Federal Republic of Germany (Articles 91c, 91d, 104b, 109, 109a, 115, 143d) of July 29, 2009 ( Federal Law Gazette I p. 2248 , PDF)
  2. ↑ a b BT-Drs. 16/3885 and printed matter 913/06 (PDF) of the German Federal Council
  3. ↑ Printed matter 262/09 (PDF) of the German Bundesrat and printed matter 263/09 (PDF) of the German Bundesrat .
  4. ↑ Article 115 Law
  5. ↑ Consolidation Aid Act
  6. ↑ Stability Council Act
  7. ↑ Printed matter 263/09 (PDF) of the German Federal Council accompanying laws
  8. ↑ Act implementing Article 91c, Paragraph 4 of the Basic Law (IT-NetzG)
  9. ↑ Federal Cancer Register Data Act (BKRG)
  10. ^ Plenary minutes of the German Bundestag BT-Drs. 16/215 of March 27, 2009.
  11. ↑ See the plenary minutes of the German Bundestag BT-Drs. 16/215 and BT-Drs. 16/225 as well as the stenographic minutes of the Federal Council from the 859th meeting.
  12. ↑ Guiding principle on the decision of the Second Senate of August 19, 2011. In: bundesverfassungsgericht.de. Accessed on June 30, 2019 (guiding principle: "In the proceedings of the federal-state dispute, the applicant or opponent for the federal government can only be the federal government, for a state only the state government.").