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Germany

I. Overview of the Functioning of the National Legislature

The German Bundestag (parliament) generally adopts laws by majority vote.[1] Constitutional amendments require a two-thirds majority.[2] As Germany is a federation, its sixteen states (Länder) participate in the legislative process through another constitutional organ, the German Bundesrat.[3] Certain laws require the consent of the Bundesrat, which are exhaustively listed in the German Basic Law, the country’s constitution.[4] In general these bills fall into one of three categories: (1) bills that amend the Basic Law, (2) bills that affect the finances of the states, or (3) bills that affect the organizational and administrative jurisdiction of the states.[5]

In general, there must be a quorum in the Bundestag to adopt a law or make any other decision. The Rules of Procedure of the German Bundestag provide that there is only a quorum when more than half of the members, meaning currently more than 355 members, are present.[6] However, the lack of a quorum is not a bar to legislative action as long as no member requests that the quorum be established (constructive quorum).[7] Voting takes place in person either by a show of hands or by getting up or remaining seated.[8] For final votes on laws, members must either get up or remain seated.[9] If a law requires secret ballot voting, the ballots are dropped in ballot boxes.[10]

Unlike other countries, the German Basic Law does not provide for the declaration of a “national emergency.” However, in cases of natural disasters and grave accidents and other internal and external emergencies, the Basic Law puts in place certain procedures to ensure the functioning of the constitutional order.[11] Internal emergencies are defined as “an imminent danger to the existence or free democratic basic order of the German Federation or of a state.”[12] An external emergency exists when a state of defense is declared, meaning when the German territory is under attack by armed force or imminently threatened with such an attack.[13]

The provisions that deal with natural disasters/grave accidents and other internal emergencies, mostly concern requesting or receiving assistance from police forces of other states, the Federal Border Police, or the Armed Forces.[14] However, for cases of external emergencies, meaning when a state of defense is declared, the Basic Law establishes an emergency parliament.[15] Furthermore, during a state of defense, the Basic Law mandates a simplified legislative procedure.[16] Bills that are designated as urgent by the Federal Government are debated by the Bundestag and Bundesrat in a joint session without delay.[17] If a bill requires the consent of the Bundesrat, a majority is required for the bill to become law.[18]

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II. Emergency Parliament

When a state of defense is declared, a “Joint Committee” may act instead of the Bundestag and the Bundesrat.[19] The declaration that a state of defense exists is made by the Bundestag with the consent of the Bundesrat, and requires a two-thirds majority of the votes cast.[20] The Joint Committee itself may declare a state of emergency when immediate action is needed and it is impossible for the Bundestag to convene in time or if there is no quorum in the Bundestag.[21]

The Joint Committee is composed of a total of 48 members, two-thirds from the Bundestag and one-third from the Bundesrat.[22] The Joint Committee is an independent supreme federal body that exists even during times of peace.[23] It occupies the position of both the Bundestag and the Bundesrat and exercises their powers as a single body when it is impossible for the Bundestag to convene in time or if there is no quorum in the Bundestag.[24] The Joint Committee may neither amend, repeal, or suspend the Basic Law, reorganize the federal territory, nor transfer sovereign powers to the European Union or other intergovernmental institutions.[25] As the Joint Committee has only temporary powers, the Bundestag, with the consent of the Bundesrat, may at any time repeal laws enacted by the Joint Committee.[26]

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III. Measures Taken during the COVID-19 Pandemic

The President of the German Bundestag, Wolfgang Schäuble, stated on March 12, 2020, that in addition to taking measures to protect the health of everyone, it is “imperative to keep the Bundestag functioning.”[27] It was therefore decided that the Bundestag would convene during the week of March 23–27, unless new developments required a reassessment of the situation. The Bundestag was scheduled to go on a three-week break for Easter after that either way.

The following safety measures have been put in place:

For votes that require ballot voting, the ballot boxes are placed further apart so that social distancing can be practiced. In addition, the time to cast a vote has been extended to two hours, so that parliamentarians do not have to crowd around the ballot boxes.

  • All public events and visits have been cancelled until the end of April.
  • The Bundestag dome and roof terrace are closed for visitors until further notice.
  • Business trips of parliamentarians are limited to what is absolutely necessary. Travel to risk regions is prohibited.
  • All parliamentarians and other employees of the Bundestag are provided with extensive information regarding COVID-19 and with recommendations on how to behave.
  • The parliamentary doctor provides support to anyone who exhibits symptoms.[28]

Furthermore, the Bundestag has reportedly discussed various other measures to ensure the continuity of parliamentary activities. A proposal has been put forward to establish another Joint Committee for other emergencies besides a state of defense to deal with epidemics.[29] However, this would require an amendment of the Basic Law and a two-thirds majority of the votes cast in both the Bundestag and the Bundesrat. In addition, if more parliamentarians get infected and cannot attend the sessions of parliament, “pairing” has been suggested to maintain the current majorities. Pairing is an informal arrangement where for each member that is absent, other parliamentary groups also withdraw members.[30]

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Prepared by Jenny Gesley
Foreign Law Specialist
March 2020


[1] Grundgesetz [GG], May 23, 1949, Bundesgesetzblatt [BGBl.] I at 1, as amended, arts. 38, 42, para. 2, https://perma.cc/KY6N-NLE4 (original), https://perma.cc/U8XQ-6E4X (English translation, updated through Mar. 28, 2019).

[2] Id. art. 79, para. 2.

[3] Id. art. 50. The German Bundesrat has sixty-nine members consisting of representatives of the state governments. Its members are not directly elected. See GG, art. 51.

[4] Id. arts. 16a, paras. 2 & 3; 23, paras. 1 & 7; 29, para. 7; 72, para. 3; 73, para. 2; 74, para. 2; 79, para. 2; 84, paras. 1 & 5; 85, para. 1; 87, para. 3; 87b, paras. 1 & 2; 87c; 87d, para. 2; 87e, para. 5; 87f, para. 1; 91a, para. 2; 96, para. 5; 104a, paras. 4–6; 104b, para. 2; 105, para. 3; 106, paras. 3–6; 106a, sentence 2; 107, para. 1; 108, paras. 2, 4, 5; 109, paras. 3–5; 115c, paras. 1 & 3; 115k, para. 3; 115l, para. 1; 120a, para. 1; 134, para. 4; 135, para. 5; 135a; 143a, para. 1.

[5] Consent and Objection Bills, Bundesrat, https://perma.cc/K7TM-9XWX.

[6] Geschäftsordnung des Deutschen Bundestages [BTGO 1980], June 25, 1980, BGBl. I at 1237, § 45, para. 1, https://perma.cc/U5BA-BJ44. The number of members changes after each election, but there are at a minimum 598 members. See Bundeswahlgesetz [BWahlG], July 23, 1993, BGBl. I at 1288, 1594, as amended, §§ 1, 6, para. 5, https://perma.cc/9AF2-4D57.

[7] BTGO 1980, § 45, paras. 2-3.

[8] Id. § 48, para. 1.

[9] Id.

[10] Id. § 49.

[11] GG, arts. 35, arts. 91, 115a, para. 1.

[12] Id. art. 91, para. 2.

[13] Id. art. 115a, para. 1.

[14] Id. art. 35, arts. 91, 87a, para. 4.

[15] Id. art. 53a.

[16] Id. art. 115d.

[17] Id. art. 115d, para.  2, sentence 2.

[18] Id. art. 115d, para. 2, sentence 3.

[19] Id. arts. 53a, 115e, para. 1.

[20] Id. art. 115a, para. 1.

[21] Id. art. 115a, para. 2.

[22] Id. art. 53a, para. 1. Geschäftsordnung für den Gemeinsamen Ausschuß [GemAusGO], July 2, 1969, BGBl. I at 1102, as amended, § 1, para. 1, https://perma.cc/4WR7-24LP.

[23] Bundesverfassungsgericht [BVerfG], 84 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 304 (334 et seq.), para. 135, https://perma.cc/55TS-3MAQ.

[24] GG, art. 115e, para. 1.

[25] Id. art. 115e, para. 2.

[26] Id. art. 115l, para. 1.

[27] Schäuble zur Corona-Krise: Handlungsfähigkeit des Bundestages erhalten, Deutscher Bundestag, https://perma.cc/9FTQ-ZHF4.

[28] Id.

[29] Coronavirus. Bundestag erwägt Grundgesetzänderung, SPIEGEL (Mar. 16, 2020), https://perma.cc/4C26-HW9T.

[30] Id.

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Last Updated: 12/30/2020