Judgement of the Second Senate of 18 December 2002

1. The Land governments of Baden-Wurttemberg, Bavaria, Hesse, Saxony,
Saarland and Thuringia
VS
The voting procedure of the Bundesrat for the approval of the
“Immigration Act” (Zuwanderungsgesetz)
of June 20, 2002

2. • Immigration Act to be approved also by the Bundesrat
• Parties involved in the dispute:
 SDU/Green coalition government
 Brandenburg representative member Schonbohm
(CDU)
 Brendenburg representative member Ziel (SPD)
 President-Minister of Brandenburg Land Manfred
Stolpe
 President of the Bundesrat Klauss Wowereit
 Hesse representative member Roland Koch
 Saarland representative member Peter Muller
 Thuringia representative member Bernhard Vogel
• During the first ballot of the 774th Bundesrat session (20
March 2002), Brandenburg Land cast a non-uniform vote
which should have been deemed as legally invalid, but…
• … Stolpe ignored the non-uniformity and the President
Wowereit finally considered it as a “Yes” in breach of some
Basic Law provisions.

3. Legal opinion supporting the unconstitutionality
of the voting procedure occurred
I. Article 51.3 sentence 2 of the Basic Law: uniformity of the vote casting in the
Lander (an historical precedent in 1949, but different)
II. No power of “holding the block vote” for the President-Minister in the Land
III. Dissenting opinions and divergences must be clearly expressed
The voting procedure was a breach of the Article 78 of the Basic Law (Grundgesetz)
Art. 78:
“A bill adopted by the Bundestag shall become law if the Bundesrat consents to it, or fails to make a
demand pursuant to paragraph (2) of Article 77, or fails to enter an objection within the period
stipulated in paragraph (3) of Article 77, or withdraws such an objection, or if the objection is
overridden by the Bundestag.”

4. Brandenburg, Baden-Wuttemberg, Bavaria, Hamburg, Hesse, Saarland,
Saxony and Thuringia filed an action referring the case to the Federal
Constitutional Court and applying for a declaration of the Immigration Act as void
because of the lack of consent of the Bundesrat in breach of the art. 78
• The vote of the Brandenburg Land to be considerd invalid  no consent of the whole
Bundesrat
• No discrimination between the Lander representatives and the President-Minister of each Land
as the hierarchy existing only within the Lander government
• No constitutional basis for the holding of block vote power
• A non-uniform vote cannot be turned discretionally into a Yes, but it is rather equal to a No or
an abstension
• No right to enquiry for the President of the Bundesrat
What were the groundings?

5. Statements in accordance with § 77 no. 1 of the
Federal Constitutional Court Act
 The President of the Bundesrat had the right to proceed according to his discretion
 Article 51.3 sentence 2 of the Basic Law  the votes of each Land may be cast only as a unit
 The holder of the block vote can announce the votes of the Land insofar as other Land
representatives present don’t contradict it
 Article 89 sentence 1 of the Brandenburg Constitution  Minister-President Stolpe had the
competence to determine the guidelines for government policy
 § 32 sentence 1 of the Rules of Procedure of the Bundesrat : the decisions of the Bundesrat don’t
take effect until the session is concluded
 10th session of the Bundesrat of 19 December 1949  contradicting votes of two Ministers of
the Land North-Rhine/Westphalia neutralised by the then Minister-President of the Land casting
the votes uniformly
• Federal Government:

6. Statements in accordance with § 77 no. 1 of the
Federal Constitutional Court Act
 Initial vote “Yes” of Minister Ziel for the Land Brandenburg  binding on the Land Brandenburg
 Duty of the President of the Bundesrat to strive to achieve a constitutional result
• Land Berlin + governments of the Land Rhineland-
Palatinate and Land Mecklenburg-Western Pomerania:
• Governments of the Land Lower Saxony, Land North Rhine
- Westphalia and Land Schleswig-Holstein:
 Brandenburg Minister of the Interior Schönbohm had not maintained his divergent voting conduct
to the last moment of the voting
 Voting in the Bundesrat by the holder of the block vote  developed as an unwritten procedural
law

7. Judgment of the Second Senate
of 18 December 2002
Application for proceedings on the constitutionality of the Immigration Act: admissible
 Immigration Act incompatible with the Basic Law and hence void
 The President of the Bundesrat was not permitted to count the casting of the votes for the Land
Brandenburg as an agreement
 The right to enquire ceases to apply if a uniform Land will recognisably does not exist
 If the right to enquire of Minister-President Dr. Stolpe existed, it was at least necessary to ask
Minister Schönbohm whether he wished to stand by his previous “No”
No valid agreement from the Land Brandenburg
 No legal effect of the determination that the Bundesrat had agreed to the Act

8. Dissenting Justices:
L. Osterloh and G. Lübbe-Wolff
 With his enquiry , the President of the Bundesrat opened a new round of voting no longer dependent on
the votes cast in the first round
 Article 51.3 sentence 2 of the Basic Law  non-uniform vote: the vote is not cast in the legal sense
 § 32 sentence 1 of the Rules of Procedure of the Bundesrat  if a ballot result is doubted by the
President of the Bundesrat, the ballot is deemed not concluded yet
 The Land Brandenburg was entitled to correct its vote casting by constitutionally founded rules of
procedure principles
 The “uniform Land will” does not correspond to the uniformity of any background convictions, but to
the uniformity of votes cast by the Land
 The form of the enquiry has no influence on the further course of the proceedings
With his enquiry, the President of the Bundesrat afforded the Land Brandenburg the
possibility to cast a fresh vote  The Land Brandenburg used its right of correction in
the second round  The Land Brandenburg uniformly voted “Yes”