Urteil des BVerfG vom 14.03.2017
BVerfG: bundesrat, uniform, immigration, are, session, see, koch, same, who, integration
Entscheidungen
Voting procedures in the Bundesrat
“Immigration Act (Zuwanderungsgesetz) case”
HEADNOTES:
Judgment of the Second Senate of 18 December 2002
– 2 BvF 1/02 -
1. The Bundesrat is a collegiate constitutional body of the Federation which consists of members of the Land
governments.
2. The Länder do not participate directly through the Bundesrat in the legislation and administration of the
Federation and in matters related to the European Union, but by the agency of the Members of the Bundesrat
coming from the midst of the Land governments. The Länder are in each case represented by their Bundesrat
Members who are present.
3. The votes of a Land in the Bundesrat are cast by its Bundesrat Members. The Basic Law (Grundgesetz)
expects a uniform casting of the votes and respects the practice of the block vote, the holders of which are
designated by each Land autonomously, without in turn interfering in the constitutional sphere of the Land with
instructions and determinations.
4. It follows from the conception of the Basic Law for the Bundesrat that the casting of the votes by a holder of
the block vote at any time can be contradicted by another Bundesrat Member of the same Land, and that the
preconditions of the block vote hence cease to apply altogether.
5. Where ambiguities occur in the course of the ballot, the President of the Bundesrat presiding over the ballot is
in principle entitled to bring about a clarification with suitable measures and to work towards an effective vote
by the Land. The right existing in this respect to enquire however ceases to apply if a uniform Land will
recognisably does not exist and it cannot be expected in view of the overall circumstances for such a will to
yet come into being during the ballot.
Judgment of the Second Senate of 18 December 2002
on the basis of the oral hearing on 23 October 2002
– 2 BvF 1/02 –
in the proceedings on the constitutionality of a statute regarding the application to find that the Act to Control and
Restrict Immigration and to Regulate the Residence and Integration of EU Citizens and Foreigners – Immigration Act
(Gesetz zur Steuerung und Begrenzung der Zuwanderung und zur Regelung des Aufenthalts und der Integration von
Unionsbürgern und Ausländern – Zuwanderungsgesetz) of 20 June 2002 (Federal Law Gazette (Bundesgesetzblatt –
BGBl) I p. 1946) is void because of its formal incompatibility with the Basic Law,
RULING:
The Act to Control and Restrict Immigration and to Regulate the Residence and Integration of EU Citizens and
Foreigners (Immigration Act) of 20 June 2002 (Federal Law Gazette I page 1946) is incompatible with Article 78 of the
Basic Law (Grundgesetz), and hence void.
GROUNDS:
A.
1
With their application for proceedings on the constitutionality of a statute, the applicants object to the Act to Control
and Restrict Immigration and to Regulate the Residence and Integration of EU Citizens and Foreigners of 20 June
2002 – Immigration Act – (Federal Law Gazette I p. 1946).
I.
2
1. The Immigration Act serves to control and restrict aliens moving to the Federal Republic of Germany, and at the
same time is to meet the humanitarian obligations of the Federal Republic (see § 1.1 of the Immigration Act). It
regulates the entry, residence, work and promotion of the integration of aliens. Furthermore, it contains provisions on
the termination of residence and the liability of transport enterprises, as well as procedural provisions.
3
Individual provisions of the Immigration Act, which in the main relate to empowerments to issue ordinances and task
definitions with regard to the enforcement of the Act, entered into force on 26 June and 1 July 2002 (see Article 15.1
and 15.2 of the Immigration Act). The other provisions – those relevant and with external effect – are to enter into
force on 1 January 2003 in accordance with Article 15.3 of the Immigration Act.
4
2. a) The German Bundestag accepted the draft of the Immigration Act at its 222nd session on 1 March 2002
(Bundesrat document (Bundesratsdrucksache – BRDrucks) 921/01, Bundestag document (Bundestagsdrucksache –
BTDrucks) 14/7387) that had been submitted by the Federal Government and the SPD parliamentary group and the
Alliance 90/The Greens parliamentary group on the basis of the recommendation for a decision and of the report of the
Committee on Internal Affairs (Bundestag documents 14/8395; 14/8414). The legislative decision was forwarded to the
Bundesrat on the same day for consent (Bundesrat document 157/02 (Beschluss)).
5
b) aa) The Bundesrat discussed the Immigration Act at its 774th session on 22 March 2002. The deliberations on
the Act started as item 8 on the agenda after being called by the presiding President of the Bundesrat, the Governing
Mayor of Berlin, Klaus Wowereit (see Minutes of plenary proceedings 774, Stenographic Record p. 131 D).
6
bb) In the plenary debate on this agenda item, most speakers expressed themselves not only on the significance
and content of the Immigration Act, but also on the coming ballot and on the differences of opinion existing in this
context. The President of the Bundesrat gave the floor, successively, to the Minister-President of the Free State of
Saxony, Prof. Dr. Kurt Biedenkopf, the Minister-President of the Land Schleswig-Holstein, Heide Simonis, the
Minister-President of the Saarland, Peter Müller, and the Minister-President of the Land Rhineland-Palatinate, Kurt
Beck. Further explicit references to the immanent ballot were contained in the subsequent speeches by the Minister-
Presidents of the Land Hesse, Roland Koch, and of the Land Lower Saxony, Sigmar Gabriel (see Minutes of plenary
proceedings 774, Stenographic Record, pp. 131 D –146 C).
7
cc) It was followed by the speech of the Brandenburg Minister of the Interior, Jörg Schönbohm. A section of the
speech which is devoted to the coming ballot in the Bundesrat reads as follows:
8
“[…] Against the background of what has just been said, I would like to inform you that I will
be voting
against
9
Agreeing to this Act would constitute a violation of our coalition agreement. By voting against
it, I would like to heal this caesura.
10
Minister-President Stolpe and I are in an extremely difficult situation personally. Despite our
different personal biographies, we have been united so far in our striving to do something
together for our Land Brandenburg, to which we are committed. We wish to complete the inner
unity in our Land. No one in Brandenburg would understand if the coalition were to collapse
because of this. We have an unemployment rate of 18.7 per cent in my home Land. 2 per cent
of our population is foreign. We have no difficulties when it comes to the topic of ‘integration’,
which is a major element of the Act. Nevertheless, the strategic goal is to expose and split
Brandenburg; because the different views were known.
11
First and foremost, the strategy of the Federal Government has brought Mr. Stolpe into a
difficult situation with the demand, the expectation or the presumption to break our coalition
agreement. Were he to do so, I would use the legal means available to heal the
consequences. This is also an extremely difficult situation for me in human terms. The
approach of the Federal Government, its timetable and its lack of willingness to call on the
conciliation committee leave me no choice. I would have preferred a joint result in the
conciliation committee. However, you, the SPD-led Länder and the Federal Government, were
not ready to agree to this. This lack of willingness to negotiate leads to the situation which we
are now in.
12
I know that my approach is unique so far. However, with its attempt to force majorities, the
Federal Government provokes such a reaction. Federal Minister Schily, we have also had
several personal conversations. I have frequently spoken to you in the Conference of
Ministers of the Interior. Why is it not possible to take this last step towards a compromise? I
have an explanation for this which I do not wish to go into in too much detail. From a public
policy point of view, you have thus missed the opportunity to adopt a statute which is
important for the future of our people in a broad political consensus. The Members of the
Bundesrat decide on their own responsibility. The Members of the Bundesrat will not give you
a majority for your procedure.
13
As the competent Minister of the Interior, I cannot therefore agree to this Act. If a Land
government fails to vote in unanimity, the votes of this government are invalid according to the
prevailing legal opinion. This view has also been heard from the administration of the
Bundesrat. I would like, after Mr. Gabriel has mentioned this, to quote three passages from a
legal opinion
summary of his evaluation, he writes:
14
1. If the four representatives of the Land Brandenburg in the Bundesrat do not agree to a
uniform vote, they cannot submit a valid vote. In the event of disagreement, the Land will be
treated as if it were not participating in the ballot.
15
In order to ensure the uniformity of the vote, there are coalition agreements – I am saying this
now – and agreements in cabinets. If it is impossible to agree in the cabinets, which last
occurred in 1949, this case applies. That is the point.
16
The second point which he mentions:
17
Without an agreement on the merits, there is no holder of the block vote. The Minister-
President would not be empowered to cast the Land’s ‘block vote’.
18
The third point:
19
Dissent among the representatives must be shown clearly in the debate in good time and also
made known in the ballot.
20
I believe that I have
shown
21
President, I am describing my position so clearly so that you are not surprised afterwards
when calling on the Land Brandenburg. I will formulate my rejection of the Act loudly and
unmistakably in the knowledge of Article 51 subsection3 of our Basic Law, as well as of the
resulting statutes and ordinances as described in the ‘Handbuch des Bundesrates’ by Reuter.
Please save us the trouble of expecting or asking for different voting conduct by making
enquiries. The first statement will be clear and unmistakable. […]” (Minutes of plenary
proceedings 774, Stenographic Record, pp. 147 D ( 148 D, emphasis in the original).
22
“Ladies and Gentlemen, I cannot decide differently than I have shown here. My responsibility
to our fatherland imposes this on me. I would like to close with the declaration of General von
der Marwitz, a contemporary of Frederick the Great, who said: ‘Chose disrepute where
obedience brought no honour.’ Thank you very much.” (Minutes of plenary proceedings 774,
Stenographic Record, p. 149 A).
23
dd) Following on from this, the President of the Bundesrat gave the floor to the Minister of the Interior of the Land
North-Rhine/Westphalia, Dr. Fritz Behrens, and the Minister of Justice of the Land Rhineland-Palatinate, Herbert
Mertin. Both Ministers argued in favour of the Bundesrat approving the Immigration Act, but without touching on the
immanent ballot. Such a reference was however found in the subsequent speech of the Hesse Minister for Science
immanent ballot. Such a reference was however found in the subsequent speech of the Hesse Minister for Science
and Art, Ruth Wagner. The speech by the Minister-President of the Land Brandenburg, Dr. Manfred Stolpe, followed.
Minister-President Dr. Stolpe explained his reservations about the Immigration Act in the version sent to the
Bundesrat. In doing so, he mentioned the public employment services, arrangements for protection against
deportation, the practicability of the hardship arrangement and the sharing of the integration costs; he did not refer to
the voting procedure.
24
Contributions followed by the Federal Minister of the Interior, Otto Schily, by the Minister-President of the Free State
of Bavaria, Dr. Edmund Stoiber, once more by the Federal Minister of the Interior, by the Minister-Presidents of the
Saarland and of Lower Saxony, by the Minister of the Interior of the Free State of Bavaria, Dr. Günther Beckstein, as
well as again by the Federal Minister of the Interior. In none of these contributions was the voting procedure referred
to again at all.
25
c) At the request of the President of the Bundesrat, the Director of the Bundesrat administration had drafted a
memorandum re Article 51.3 sentence 2 of the Basic Law prior to the 774th session of the Bundesrat. This reads as
follows:
26
“Re: Uniform vote casting in the Bundesrat
27
here: Ballot on the Immigration Act in the session of the Bundesrat
on 22 March 2002
28
I. Memorandum
29
1. In accordance with Article 51.3 sentence 2 of the Basic Law, the Bundesrat votes of a Land
can be cast only uniformly. Land law provisions of whatever nature do not affect this rule.
30
One case is known from the early history of the Bundesrat in which the votes of a Land were
not cast uniformly: Two representatives of the same Land voted differently in the session of
the Bundesrat on 19.12.1949. The President thereupon found that the votes of a Land can be
cast only uniformly, and, since it was the Land in which he himself was Minister-President, he
cast the votes for the Land himself (Stenographic Record p. 116). The matter was not
examined in court at the time.
31
There is no case-law on the question of what consequences result from a breach of the
principle of uniform vote casting. By contrast, legal science has dealt with the question.
32
According to a view put forward in isolated instances in the somewhat more recent literature,
the Head of the Government is to have the casting vote in the event of contradictory voting
conduct.
33
Stern, Staatsrecht, vol. II (1980), § 27 III 2; in a similar vein Blumenwitz, in: Bonner
Kommentar zum Grundgesetz, Art. 51, marginal no. 29. Another view by v. Mangoldt/Klein,
Das Bonner Grundgesetz, vol. II, 2nd ed. (1964), Art. 51 Note III 4 b, according to which the
Land in question is to be afforded the opportunity to consult an instruction from the Land
government, is obsolete.
34
This view is not compatible with the clear wording of the Basic Law
35
for instance also Bauer, in: Dreier, Grundgesetz-Kommentar vol. II (1998), Art. 51, marginal
no. 22, with further references,
36
and ignores the constitutional principle of the equal weight of the votes of the Bundesrat
Members. The very prevalent teaching hence rightly considers all votes of the Land in
question to be invalid if they are not cast uniformly. [The references from public law literature
following at this point are left out.].
37
2. In the event that the votes of a Land have not been cast uniformly in a ballot when called on
by Länder, it should be suggested to the President to refer the representatives of the Land in
question to the principle of uniform casting of the votes as follows:
38
‘In accordance with Article 51 subsection 3 sentence 2 of the Basic Law, the votes of a Land
can be cast only uniformly. I therefore request a uniform answer to the balloting issue,
otherwise the vote casting will be held to be invalid.’
39
Should the non-uniform vote casting continue to stand, he should make the finding that the
Land in question has not cast a valid vote, and continue with the ballot.”
40
d) aa) After no further contributions were made, the President of the Bundesrat initiated the ballot. The Bundesrat’s
Committee on Internal Affairs, which had special responsibility for this matter, and the Committee on Economic
Affairs, had submitted the recommendation not to approve of the Immigration Act (Bundesrat document 157/1/02). No
recommendation was made in the other Bundesrat committees, who also had their contribution to make (Bundesrat
document 157/1/02). Since initially a majority had come out in favour of a conciliation procedure, the Bundesrat
initially voted on the individual reasons for convocation. The corresponding applications of the Saarland (Bundesrat
document 157/3/02) and of the Land Rhineland-Palatinate (Bundesrat document 157/2/02) however did not find a
majority, so that the proposal to convoke the conciliation committee was rejected as a whole (see Minutes of plenary
proceedings 774, Stenographic Record, p. 171 B – C).
41
bb) At the request of the Land Rhineland-Palatinate, in accordance with § 29.1 sentence 2 of the Rules of Procedure
of the Bundesrat (Geschäftsordnung des Bundesrates – GOBR) in the version of the proclamation of 26.11.1993
(Federal Law Gazette I p. 2007, amended by proclamation of 25.11.1994, Federal Law Gazette I p. 3736, Bundesrat
document 990/94 (Beschluss)) the ballot was then carried out by calling on the Länder.
42
cc) The President of the Bundesrat asked the keeper of the minutes to call on the Länder. According to the
stenographic report of the Bundesrat session, this section of the session took place as follows:
43
“Dr. Manfred Weiß (Bavaria), minute-taker:
44
Baden-Württemberg Abstention
45
Bavaria No
46
Berlin Yes
47
Brandenburg
48
Alwin Ziel (Brandenburg): Yes!
49
Jörg Schönbohm (Brandenburg): No!
50
President Klaus Wowereit: Hence I find that the Land Brandenburg has not voted uniformly. I
refer to Article 51.3 sentence 2 of the Basic Law. Accordingly, votes of a Land can be cast
only uniformly.
51
I ask Minister-President Stolpe how the Land Brandenburg votes.
52
Dr. h.c. Manfred Stolpe (Brandenburg): As Minister-President of the Land Brandenburg I
respond here with Yes.
53
(Jörg Schönbohm (Brandenburg): You know my view, President!)
54
President Klaus Wowereit: Hence I find that the Land Brandenburg has voted Yes.
55
(Peter Müller (Saarland): That’s impossible! – Roland Koch (Hesse): That just about takes the
biscuit! – Further calls: That’s unconstitutional! – They can’t do that!)
56
– Minister-President Stolpe declared for Brandenburg that he, that the Land Brandenburg voted
Yes. That isn’t – –
57
(Roland Koch (Hesse): Mr. Schönbohm contradicted him! That’s just not on, Mr. President!)
58
– That’s the way it is. Then let’s continue with the – –
59
(Peter Müller (Saarland): Even you are bound by the constitution, Mr. President! – Roland
Koch (Hesse): No, that’s not on! – Another call: Quite out of the question! You don’t know the
constitution!)
60
Then it goes on – – Let’s continue with the ballot.
61
(Peter Müller (Saarland): No! – Roland Koch (Hesse): No, Mr. President! You’re breaking the
law!)
62
– No!
63
(Roland Koch (Hesse): Mr. President, no!)
64
– I asked at the second question whether Minister-President Stolpe will submit a declaration
for Brandenburg. He did so. And – –
65
(Peter Müller (Saarland): Even you are bound by the Basic Law, Mr. President! – Roland Koch
(Hesse): That’s not on! No, Mr. President, no! – Further calls)
66
And now it is found – –
67
(Peter Müller (Saarland): The Basic Law applies to you too!)
68
Now it is found – –
69
(Roland Koch (Hesse): Oh yes! This is unbelievable, it’s a simple violation of the law!)
70
I can – –
71
(Roland Koch (Hesse): It’s incredible!)
72
– Yes Mr. – – Please – –
73
(Roland Koch (Hesse): Mr. President, please break so we can talk about this! This is
incredible!)
74
– Please, Mr. Koch, please control yourself.
75
(Roland Koch (Hesse): No, I will not control myself!)
76
– Yes.
77
(Roland Koch (Hesse): This is a manifest and intentional violation of the law! This can’t go on!
– Further calls: A premeditated violation of the law! – Bending the law!)
78
So once again – –
79
(Roland Koch (Hesse): If Mr. Schönbohm had kept silent just now, that may be! But he said:
Not me!)
80
I can – –
81
(Roland Koch (Hesse): There are four votes! They have been cast differently and you must
take note of this!)
82
I can – – I can also – –
83
(Peter Müller (Saarland): Stop the session so that this question can be clarified! This isn’t the
way to do it! – Roland Koch (Hesse): That really is the limit! – Further calls)
84
I can also ask Minister-President Stolpe once again if the Land still has any questions to
clarify.
85
(Roland Koch (Hesse): The Land doesn’t have any questions to clarify! You are manipulating a
decision of the Bundesrat! Who do you think you are! – Call: You are breaking the
constitution!)
86
– No!
87
(Roland Koch (Hesse): Mr. President, no! – Further lively calls)
88
Minister-President Stolpe.
89
Dr. h.c. Manfred Stolpe (Brandenburg): As Minister-President of the Land Brandenburg, I say
Yes.
90
(Roland Koch (Hesse): OK! and what does Mr. Schönbohm say?)
91
President Klaus Wowereit: OK, so then it’s determined.
92
Let us continue the ballot.
93
(Call: Shocking!)
94
– continue the ballot.
95
(Dr. Bernhard Vogel (Thuringia): Please allow me to make a point of order!)
96
– You can make a point of order after the ballot. We are now voting.
97
Dr. Manfred Weiß (Bavaria), minute-taker:
98
Bremen Abstention
99
Hamburg Abstention
100
Hesse Abstention
101
Mecklenburg-Western Pomerania Yes
102
Lower Saxony Yes
103
North-Rhine/Westphalia Yes
104
Rhineland-Palatinate Yes
105
Saarland No
106
Saxony No
107
Saxony-Anhalt Yes
108
Schleswig-Holstein Yes
109
Thuringia No
110
President Klaus Wowereit: That is the majority.
111
The Bundesrat has approved the Act.”
112
dd) At the request of the Minister-President of the Land Thuringia, Dr. Bernhard Vogel, the session was interrupted
by the President of the Bundesrat. After the resumption of the session, the Hesse Minister-President Koch made the
point of order “In the name of the federal Länder Bavaria, Baden-Württemberg, Hamburg, Hesse, Saarland, Saxony
and Thuringia” that the President of the Bundesrat correct his determination of the ballot result on the Immigration Act
(see Minutes of plenary proceedings 774, Stenographic Record, p. 173 B).
113
The President of the Bundesrat answered – once more quoting the memorandum of the Director of the Bundesrat
administration – that he had acted according to the memorandum (see Minutes of plenary proceedings 774,
Stenographic Record, p. 174 C). Then, the Lower Saxony Minister-President Gabriel was given the floor on a point of
order. He made a statement against the application of Minister-President Koch. Thereupon, the President of the
Bundesrat found that the voting conduct was not corrected. The ballot had been correct, the necessary majority of 35
votes had been obtained (see Minutes of plenary proceedings 774, Stenographic Record, p. 175 A).
114
ee) An application of the Thuringian Minister-President Dr. Vogel to adjourn the Bundesrat session, which the
Rhineland-Palatinate Minister-President Beck contradicted, did not obtain a majority. When the session was continued
by calling the next item on the agenda, the representatives of the Länder Baden-Württemberg, Bavaria, Hamburg,
Hesse, Saarland, Saxony and Thuringia left the plenary hall of the Bundesrat (see Minutes of plenary proceedings
774, Stenographic Record, p. 175 B ( C).
115
3. The original document of the Act was transmitted to the Federal President on 17 April 2002 for promulgation in
accordance with Article 82.1 of the Basic Law (Grundgesetz – GG). The Federal President promulgated the
Immigration Act on 20 June 2002 and commissioned the proclamation in the Federal Law Gazette, which took place
on 25 June 2002. On the occasion of the promulgation, the Federal President in his official residence submitted a
declaration in which he touched on the circumstances of the Bundesrat session of 22 March 2002 and explained the
most important points of view in favour of his decision to promulgate the Act (press release of the Office of the
Federal President of 20 June 2002).
II.
116
In accordance with Article 93.1 no. 2 of the Basic Law in conjunction with §§ 13 no. 6 and 76.1 of the Federal
Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the applicants have applied for a declaration
of the Immigration Act as void because of the lack of consent of the Bundesrat.
117
1. Because of the administrative-procedure-law nature of individual provisions, the Immigration Act in its entirety is
alleged to require consent in accordance with Article 84.1 of the Basic Law. The consent of the Bundesrat is said not
to be granted because the Land Brandenburg had not voted uniformly. The legal consequence of divergent votes by
the representatives of a Land is said to be that the votes of the Land are invalid. This is said to follow from the
wording, as well as the meaning and purpose of Article 51.3 sentence 2 of the Basic Law, and to be based on the
experience of constitutional history.
118
2. Bundesrat Members are alleged to be natural persons with their own vote, even if it can only be cast jointly with
the other Members from the same Land in the interest of the representation of the Land. The Basic Law only required
the success of the uniformity, and did not make any pronouncements on the way in which the representatives of the
Land formed their determination. From the point of view of the Basic Law, this agreement took place on the basis of
free understanding among equals. Therefore the Minister-President of a Land also did not have a prominent status
among the other Bundesrat Members of the same Land. The hierarchical structures within a Land government did not
continue to apply in the Bundesrat, and the requirements of a Land constitution were also not significant to the
external representation of a Land at the level of the federal constitution. The instruction that a Member of the
Bundesrat received from the Land government was said to have no impact on vote casting.
119
3. The institution of the holder of the block vote developed in the practice of the Bundesrat is said to have no basis
in constitutional law. The holder of the block vote announced the joint vote of the Land as the spokesperson of the
Bundesrat Members belonging to a Land. His vote was said to be valid only if it was supported by the other Members,
the block vote collapsing if a Member contradicted it during the ballot. Who appeared as holder of the block vote in the
Bundesrat was determined by an agreement reached freely among the representatives of the Land. The equal status
of the Bundesrat Members ruled out either the Minister-President personally nominating himself or herself holder of
the block vote or being designated as such by the President of the Bundesrat.
120
4. Finally, the Basic Law is said not to entail an obligation to cast votes uniformly since Article 51.3 sentence 2 of
the Basic Law only provided for a legal “possibility”, but not for an “obligation”. That the representatives of a Land
agreed to a uniform vote was merely a legally unsanctioned “constitutional expectation”. For this reason, the President
of the Bundesrat also had no right to strive to achieve a uniform vote by means of measures he took as chairperson
of the session. The diverging voting conduct of the representatives of the Land Brandenburg did not constitute a
violation of the principle of loyalty towards a constitutional body because the functionality of the Bundesrat was not
impaired by the invalid vote of a Land. A non-uniform vote ultimately had the effect of a “No” or of an abstention.
121
5. When voting in the Bundesrat, Brandenburg Ministers Ziel and Schönbohm had evidently cast non-uniform votes,
as had also been found by the President of the Bundesrat in this manner. Since Minister Schönbohm had already
announced his voting conduct when he spoke in the plenary debate, a non-uniform vote had been cast by the Land
Brandenburg with final effect. The President of the Bundesrat had hence also had no right to enquire.
122
It is submitted by way of alternative that the dissent among the Brandenburg Bundesrat Members had also
continued after the first enquiry, so that further enquiries had not been permissible at the latest from this time on.
III.
123
The Bundestag, the Bundesrat, the Federal Government and the governments of the Länder had the opportunity to
make statements in accordance with § 77 no. 1 of the Federal Constitutional Court Act.
124
1. The Federal Government considers the application for proceedings on the constitutionality of a statute to be
unfounded. The Immigration Act had allegedly come about constitutionally.
125
a) The ballot in the Bundesrat of 22 March 2002 met with the constitutional requirements. The President of the
Bundesrat had the right to proceed in the sessions of the Bundesrat according to his duty-bound discretion, he had to
chair them fairly, without bias and in accordance with the Rules of Procedure. In the context of this function as
chairperson, he had discretion within the meaning of an interpretation prerogative within the sessions and ballots. It
followed from the Bundesrat’s status as a constitutional body that it had an individual sphere as regards the Federal
Constitutional Court which was amenable to court examination only in the event of arbitrariness or evident impropriety.
126
b) The uniform casting of the votes of a Land as presupposed in Article 51.3 sentence 2 of the Basic Law also had a
direct impact on the President of the Bundesrat. On the basis of the view that the votes of the Bundesrat Members of
a Land were invalid if they were not cast uniformly, it was said to be the constitutional task of the President of the
Bundesrat to afford the Land in question the opportunity to cast a valid vote. Invalid vote casting violated a vital
political interest of the Land in question.
127
c) The principle of the uniform vote casting is also said to emphasise the function of the Bundesrat Members as
representatives of their governments which took precedence over their individual freedom to decide. The Members of
the Bundesrat exercised the votes of their Land since the will of the Länder was expressed in the Bundesrat.
128
d) The central position of the Länder as representatives of opinion in the Bundesrat gave rise to and legitimised the
institution of the block vote. The exercise incorporated therein was said to have been introduced to prevent votes not
being cast uniformly. The holder of the block vote was said to effectively announce the votes of the Land insofar as
other Land representatives present did not contradict it. In response to the question put by the President of the
Bundesrat, Minister-President Dr. Stolpe had claimed the block vote, Minister of the Interior Schönbohm had initially
not contradicted with the necessary clarity and – after a new vote had been cast by the Minister-President – not at all.
129
e) aa) The Bundesrat Members were furthermore said to be subject to instructions by their government, and to be
bound by the instruction of their Minister-President the context of a guideline competence. This ensued in a reversal
conclusion from Article 53a.1 second half of sentence 3 of the Basic Law and Article 77.2 sentence 3 of the Basic
Law. The Basic Law was said in Article 51.3 first half of sentence 2 of the Basic Law to presume procedures at Land
level in which uniformity was guaranteed and instructions could be given. The President of the Bundesrat was obliged
to afford adequate scope for such processes.
130
bb) The Minister-President of the Land Brandenburg was said to determine the guidelines of government policy in
accordance with Article 89 sentence 1 of the Brandenburg Constitution. He was therefore also entitled to issue
individual instructions in individual cases of particular political significance. The guideline competence thus
understood was said to also encompass the voting conduct of the Members of the Bundesrat. By his declaration,
Minister-President Dr. Stolpe had availed himself of the guideline competence to which he was entitled.
131
cc) The dissent initially existing between the Bundesrat Members of the Land Brandenburg had been resolved during
the ballot. The ballot continued until the President of the Bundesrat determined the result. This was in line with § 32
sentence 1 of the Rules of Procedure of the Bundesrat, in accordance with which the decisions of the Bundesrat do
not take effect until the session is concluded. Accordingly, it was possible to deliberate and vote on procedural
matters in accordance with § 32 sentence 2 of the Rules of Procedure of the Bundesrat until such time as their
treatment was concluded in the legal sense.
132
dd) Brandenburg’s vote casting had not been terminated after the statements of Ministers Ziel and Schönbohm.
Rather, at that time, there had not yet been a vote by the Land. The Brandenburg Bundesrat Members had brought
about their consensus on the voting conduct only in the course of the voting procedure, at the latest with their reply to
the second enquiry of the President of the Bundesrat to Minister-President Dr. Stolpe. With the enquiries, the
President of the Bundesrat had brought about the constitutionally required clarity of the voting conduct. Were
ambiguities to exist, the Minister-President was the constitutionally correct point of contact.
133
ee) In accordance with the principle of federal comity, the President of the Bundesrat had been obliged, over and
above this, to afford to Land constitutional law scope for a solution in case of a constitutional conflict within a Land.
134
f) Also the only case as yet of non-uniform voting of a Land in the Bundesrat in the 10th session of the Bundesrat of
19 December 1949 favoured the coming about of the Immigration Act. At that time, the contradicting votes of two
Ministers of the Land North-Rhine/Westphalia had been neutralised by the then Minister-President of the Land casting
the votes uniformly.
135
2. The government of the Land Mecklenburg-Western Pomerania takes the view that the Bundesrat effectively voted
for the Immigration Act.
136
The declarations of the parties in the Bundesrat session of 22 March 2002 were allegedly a uniform vote casting of
the Land Brandenburg. The fact of Minister Ziel casting the vote for the Land Brandenburg was to be regarded as the
visible declaration, binding on the Land Brandenburg, that the Act was agreed to. If the government of a Land had
decided to empower a Member of the Bundesrat to cast a vote, another Member could not contradict that by casting a
divergent vote. Otherwise, a single Member could make all the votes of the Land invalid.
137
As an alternative, it had to be presumed that clarification could and should take place in the event of a vote being
cast non-uniformly. The declaration of the Brandenburg Minister-President in response to an enquiry by the President
of the Bundesrat had to be considered such a clarification. With his declaration, the Minister-President had claimed for
himself the function of the holder of the block vote, whilst at the same time making use of his guideline competence.
The conduct of Minister Schönbohm could not be evaluated as an explicit contradiction.
138
Furthermore, Land constitutional law led one to conclude that the Minister-President held the casting vote in the
event of a conflict. State practice and the competences of the Minister-President determined by the Land Constitution
gave rise to his or her mandate towards the other Land representatives in the Bundesrat to ensure a constitutionally
correct voting conduct.
139
The legal consequence of a violation of Article 51.3 sentence 2 of the Basic Law was the ineffectiveness of the
ballot as a whole. The presumption of the invalidity of the votes of a Land when a vote is cast non-uniformly was said
ultimately to mean a content decision, namely to refuse to consent. Such a consequence of a procedural error could
not be derived from the Basic Law.
140
3. The government of the Land Lower Saxony is of the view that the Immigration Act has come about in accordance
with Article 78 of the Basic Law.
141
The votes of the Land Brandenburg had allegedly been uniformly cast. The President of the Bundesrat had correctly
evaluated the conduct of the Brandenburg Minister of the Interior in factual terms such that the latter had not
maintained his divergent voting conduct to the last moment of the voting by Brandenburg.
142
The arrangement of the voting conduct in the Bundesrat, as made by Article 51 of the Basic Law, was from a variety
of points of view dependent on decisions and arrangements at Land level. This included the guideline competence of
the Minister-President for government policy provided for in Article 89 sentence 1 of the Brandenburg Constitution. In
cases in which on casting the vote in the Bundesrat on behalf of a Land different declarations were made by the
departmental ministers, the Minister-President had the right on the basis of the guideline competence and of his or her
special role to decide finally on the vote casting of the Land.
143
4. The government of the Land North-Rhine/Westphalia submits that voting in the Bundesrat by the holder of the
block vote has developed as an unwritten procedural law. Since the Basic Law did not make provision for an
arrangement on the exercise of the block vote because the question was concerned with Land organisational law, the
question as to the person of the holder of the block vote was answered by means of arrangements or agreements at
Land level. The Land Brandenburg provided in its Constitution for the guideline competence of the Minister-President;
the voting conduct in the Bundesrat fell in its area of application, and Brandenburg’s Minister-President had exercised
the guideline competence by casting his vote on enquiry of the President of the Bundesrat. Moreover, also no further
Bundesrat Member of Brandenburg present had contradicted the block vote of the Minister-President. It was one of
the duties of the President in chairing the Bundesrat to ensure that proper procedure was followed in the session, in
particular constitutional voting. Where there are doubts as to the uniformity of the vote casting of a Land, also the
constitutional principle of Länder comity requires an enquiry.
144
5. In its statement, with which the Land Berlin has concurred, the government of the Land Rhineland-Palatinate puts
forward the view that the application for proceedings on the constitutionality of a statute is unfounded.
145
It is alleged to follow from the prohibition of non-uniform vote casting in accordance with Article 51.3 sentence 2 of
the Basic Law that the President of the Bundesrat has the right to afford, by an enquiry, the representatives of the
Land the possibility to cast a constitutional vote. Where there was an evident constitutional breach, as occurred in the
case of the Immigration Act, the President of the Bundesrat indeed had a duty to strive to achieve a constitutional
result. Since the vote casting of Brandenburg had been unclear, the President of the Bundesrat had rightly enquired.
The Minister-President of Brandenburg had claimed the block vote by making reference to his office in the context of
the vote casting, and the other Bundesrat Members of the Land had not contradicted this. Hence the conclusion
suggested itself that it had been a matter of block vote elected in an implied consensus.
146
6. The government of the Land Schleswig-Holstein submits that the Land Brandenburg in the final analysis had
voted uniformly by the Minister-President of Brandenburg having assumed the block vote in the course of the ballot, in
accordance with Article 89 sentence 1 of the Brandenburg Constitution, and by the other Brandenburg Bundesrat
Members not having explicitly contradicted it. The guideline competence guaranteed by the Constitution of the Land
also covered the voting conduct of the Members of the Bundesrat where the matter was a question of fundamental
significance. The exercise of the guideline competence by calling on the block vote could also take place informally in
a Bundesrat session. If a Bundesrat Member wished to diverge from the instruction that had been issued thereby, he
or she would have to insist explicitly on their divergent vote.
IV.
147
The Federal Constitutional Court held an oral hearing on 23 October 2002 at which the applicants, the Federal
Government and the Land governments of Berlin, Lower Saxony and Mecklenburg-Western Pomerania explained and
went into greater detail on their legal points of view.
B.
148
The application for proceedings on the constitutionality of a statute is admissible. In accordance with Article 93.1 no.
2 of the Basic Law, in the event of differences of opinion or doubts as to the formal and material compatibility of
federal law with the Basic Law, the Federal Constitutional Court decides at the request of a Land government. In
accordance with § 76.1 no. 1 of the Federal Constitutional Court Act, the application filed by the Land governments of
Baden-Württemberg, Bavaria, Hesse, Saxony, Saarland and Thuringia is admissible; the applicants consider the
Immigration Act to be incompatible with the Basic Law.
C.
149
The application for proceedings on the constitutionality of a statute is well-founded. The Act to Control and Restrict
Immigration and to Regulate the Residence and Integration of EU Citizens and Foreigners of 20 June 2002 –
Immigration Act – (Federal Law Gazette I p. 1946) is incompatible with Article 78 of the Basic Law, and hence void.
Because of the provisions concerning the administrative procedure to be carried out by the authorities of the Länder
that it contains, the Immigration Act in its entirety requires the consent of the Bundesrat in accordance with Article
84.1 of the Basic Law. There was no majority of Bundesrat votes, which is required in accordance with Article 52.3
sentence 1 of the Basic Law for such consent. The President of the Bundesrat was not permitted to count the casting
of the votes for the Land Brandenburg as agreement (I). Since there was no agreement of the Land Brandenburg to
the Act, also the determination by the President of the Bundesrat which took place after the other Länder had been
called on that the Bundesrat had agreed with the Act could not become legally effective (II).
I.
150
There is no agreement of the Land Brandenburg to the Immigration Act because when the Land was called on, the
votes were not cast uniformly (1). The non-uniformity of the votes cast by Brandenburg was not eliminated by the
further course of the ballot (2).
151
1. a) The Bundesrat is a collegiate constitutional body of the Federation which consists of Members of the Land
governments (see Article 51.1 sentence 1 of the Basic Law). It is not formed from the Länder. Article 50 of the Basic
Law only describes the function of this federal constitutional body by stating: “The Länder participate through the
Bundesrat in the legislation and administration of the Federation and in matters related to the European Union.” This
participation takes place, not directly, but by the agency of the Members of the Bundesrat coming from the midst of
t h e Land governments (see Decisions of the Federal Constitutional Court, Entscheidungen des
Bundesverfassungsgerichts – BVerfGE 8, 104 (120)). The Länder are in each case represented by their Bundesrat
Members who are present.
152
The votes of a Land are cast by its Bundesrat Members. The person from among these representatives who will
cast the votes of a Land is as a rule determined by the representatives themselves or by the respective Land
government in the run-up to a Bundesrat session. The Basic Law expects a uniform casting of the votes and respects
the practice of the block vote, the holders of which are designated by each Land autonomously, without in turn
interfering in the constitutional sphere of the Land with instructions and determinations.
153
It follows from this conception of the Basic Law for the Bundesrat that the casting of the votes by a holder of the
block vote at any time can be contradicted by another Bundesrat Member of the same Land, and that the
preconditions of the block vote hence cease to apply altogether. The President of the Bundesrat therefore accepts the
vote of an individual Bundesrat Member as the casting of the votes for the whole Land unless another Member of the
respective Land casts a divergent vote.
154
b) The votes of a Land are to be cast uniformly in accordance with Article 51.3 sentence 2 of the Basic Law. The act
of casting of the vote is the voluntary announcement of the votes of a Land. Where several votes are cast by the
Bundesrat Members of a Land, they must coincide.
155
Here, the Land Brandenburg called on in the voting procedure did not cast its four votes uniformly. In accordance
with the requested type of voting by calling on the Länder in accordance with § 29.1 sentence 2 of the Rules of
Procedure of the Bundesrat, the chairing President of the Bundesrat through his minute-keeper addressed the
question to the Bundesrat Members present from the individual Länder, who cast its votes for the respective Land. In
the present case, Bundesrat Member Ziel initially answered “Yes” for Brandenburg, directly following which Bundesrat
Member Schönbohm responded “No”. The Brandenburg Minister-President Dr. Stolpe and Minister Prof. Dr. Schelter –
Bundesrat Members also present – did not respond when the Land was called on. From the unambiguous declarations
of Bundesrat Members Ziel and Schönbohm, it followed that the casting of the votes by the Bundesrat Members of
the Land Brandenburg was non-uniform within the meaning of Article 51.3 sentence 2 of the Basic Law. The President
of the Bundesrat correctly determined this formally directly after the casting of the votes (Minutes of plenary
proceedings 774, Stenographic Record, p. 171 C).
156
2. During the ensuing course of the ballot, the non-uniformity of votes cast on the part of the Land Brandenburg was
not resolved and changed to a uniform concurring vote. The course of the ballot which followed is no longer legally
relevant because it took leave of the constitutionally required form of the voting procedure. In a voting procedure
belonging to the legislation procedure, conduct that is contrary to the required form cannot change the legal impact of
the preceding conduct that did correspond to such requirements as to form. The President of the Bundesrat as
chairman had in this particular case no right to enquire of Minister-President Dr. Stolpe (a). If one nevertheless were to
presume such a right, the enquiry should have been addressed not only to the Minister-President, but also at least to
Minister Schönbohm (b).
157
a) After making his determination that the Land Brandenburg had not voted uniformly, the President of the Bundesrat
was not permitted to ask Bundesrat Member Dr. Stolpe how the Land Brandenburg voted. Such a question took leave
of the form of calling on by Länder that had been selected with the voting procedure, and hence required a separate
justification, which was lacking here.
158
aa) Where ambiguities occur in the course of the ballot, the President of the Bundesrat presiding over the ballot is in
principle entitled to bring about a clarification with suitable measures and to work towards an effective vote by the
Land. This corresponds to his or her duty as an unbiased session chair on whom the task is incumbent to clearly
determine the will of the Bundesrat in the legislative procedure. Article 78 of the Basic Law in conjunction with the
rule-of-law principle requires determining the will of the participating constitutional bodies in such a way that it is
attributable to the constitutional bodies; this applies to the formal statutory order of the Bundestag, as well as to the
agreement of the Bundesrat. When in this respect ambiguity as an occasion for enquiries must be presumed can be
examined by the constitutional court; nevertheless, the chairing President of the Bundesrat has in this respect a
prerogative for assessment. The right to enquire however ceases to apply if a uniform Land will recognisably does not
exist and it cannot be expected in view of the overall circumstances for such a will to yet come into being during the
ballot.
159
The intention of the Land Brandenburg to vote non-uniformly was evident. Bundesrat Member Schönbohm had
presented his political position in unmistakable form in the plenary debate immediately before the ballot. He would not
agree to the Act, and he would formulate his rejection loudly and clearly in knowledge of Article 51.3 of the Basic Law
(see Minutes of plenary proceedings 774, Stenographic Record, p. 147 C – D). Bundesrat Member Schönbohm had
additionally also clearly outlined the goal of his conduct. He wished with his “No” to prevent uniform casting of the
Brandenburg votes (see Minutes of plenary proceedings 774, Stenographic Record, p. 148 A – B). It was also
generally known that the Brandenburg Land government had not passed a ruling on the casting of the Land’s votes.
Certain of the contributions to the plenary debate, as well as the careful legal preparation by the parties involved,
demonstrate that a uniform political Land decision was not determined prior to the Bundesrat session, nor was it
expected to be achieved in the course of the session – there was clarity as to the dissent. The lack of uniformity was
then formally declared as expected when the Land Brandenburg was called on.
160
bb) In this atypical case in which there was, from the beginning of the vote, certainty about the intended non-uniform
casting of the votes, the person presiding over the session had merely the duty to record this. With the subsequent
enquiry to the Bundesrat Member Dr. Stolpe, the President of the Bundesrat interfered in the area of responsibility of
the Land, and created the impression that it was now a matter of finding out the “real Land will”, or indeed of striving to
achieve a uniform casting of the votes after all. The President of the Bundesrat was not entitled to influence the
voting conduct of the Land Brandenburg in such a manner under the given circumstances.
161
In contradistinction to the situation encountered in the 10th session of the Bundesrat of 19 December 1949, it could
not be presumed that there was only confusion which required clarification to restore a clear situation in the course of
the ballot. In the ballot held at that time, there had been no indication that political powers in the North-
Rhine/Westphalian Land government were in unbridgeable opposition as to agreement to or rejection of the Act in the
Bundesrat. From the overall circumstances, anyone had to conclude that it was not clear for which attitude the Land
North-Rhine/Westphalia had opted in the cabinet (see in this respect Bundesrat, Minutes of 23.12.1949, p. 116 B – C).
Whether the conduct of the then President of the Bundesrat corresponded to the constitutional requirements in every
detail does not require discussion in the instant case. In such a case of non-uniformity, which had been unintentional
and which had not been announced in advance, the President was permitted to take clarification measures in order to
avoid a situation in which an allegedly uniform Land will has no impact simply because of a possible error.
162
In the 774th session of the Bundesrat, which is to be assessed here, the case was different. There had evidently not
been a uniform will on the part of the Land – on the contrary. This was also the conclusion reached by all legal
considerations of those concerned. Since in view of this initial situation it could not be expected for such a will to yet
come into being during the ballot, there was no scope for an enquiry addressed to the Minister-President of the Land
Brandenburg.
163
As there was no need to clarify, the enquiry addressed to the Minister-President of a Land by the President of the
Bundesrat could only be justified if a Minister-President had been permitted to overrule in the ballot the casting of the
votes by the other Bundesrat Members of the Land, be it that he could claim a right of instruction in the Bundesrat, be
it that this was the only way to avert a threatened breach of the federal constitution.
164
Neither condition was met. Ranking within Land constitutional law has no role to play at federal level. The holder of a
guideline competence under Land law has no prominent status under federal constitutional law permitting him or her to
overcome a voting dissent of two other Members present solely by announcing his or her will. The instruction under
Land law to Bundesrat Members, which is permitted by the Basic Law in the Bundesrat – unlike in the Joint
Committee (Article 53a.1 sentence 3 of the Basic Law) or in the conciliation committee (Article 77.2 sentence 3 of the
Basic Law) – is that of the Land government, not of the holder of the guideline competence. If there is no instruction
of the Land government, and if a Land and the Members representing its Land government vote non-uniformly, this is
not unconstitutional. Article 51.3 sentence 2 of the Basic Law merely prohibits accommodating a Land will that is split
in the ballot result of the Bundesrat by splitting the votes of the Land.
165
b) Even if the President of the Bundesrat had had in principle a right to enquire, he would have been allowed to
exercise it only in the neutral form required. For this, the Land Brandenburg would have had to be called on again, and
hence the question of how the Land would have had to be addressed to all Bundesrat Members of the Land who were
present. However, if the President chairing the session decided for a question addressed directly to a Member, it was
indispensable, after the “Yes” of the Minister-President, to subsequently address at least to Minister Schönbohm the
question as to whether he wished to stand by his “No” after the vote had been cast by the Minister-President. By the
question to Minister-President Dr. Stolpe, and his answer, it may be that a need for clarification had come about as to
whether Minister Schönbohm would also stand by his “No” in direct confrontation with his Minister-President. The duty
to ask both Members present was further amplified by the interruption by Bundesrat Member Schönbohm. Irrespective
of the question of whether an interruption which, neither by a – renewed – calling on of the Land, nor by a word
directed by the chair to Minister Schönbohm, attained the required form can at all be a legally effective announcement
in the formal ballot, at least as to the content of the interruption a change of the No vote to a Yes vote or a recognition
of the Minister-President’s block vote could not be concluded without a clarifying enquiry.
II.
166
1. The determination of the President of the Bundesrat that the Land Brandenburg had voted “Yes”, made formally
directly after the interruption which was recorded in the minutes of Bundesrat Member Schönbohm (see Minutes of
plenary proceedings 774, Stenographic Record, p. 171 D), was erroneous because Brandenburg did not vote
uniformly.
167
The ballot was not re-opened for the Land Brandenburg after this invalid determination of the President of the
Bundesrat. In response to reserves from the plenary, the President of the Bundesrat merely posed the following
question: “I can also ask Minister-President Stolpe once again if the Land still has any questions to clarify.” This was
not a question that complied with the form of the ballot. Neither was the Land called on once again, nor was also only
a single Member asked to cast the votes of the Land. The statement of the President of the Bundesrat: “OK, so then
it’s determined” following the renewed positive declaration of Bundesrat Member Dr. Stolpe merely confirmed the
formal determination taken before of an agreement of the Land Brandenburg (see Minutes of plenary proceedings 774,
Stenographic Record, p. 172 C). That Minister Schönbohm in turn did not speak again in response to the statement by
Minister-President Dr. Stolpe in order to confirm the continuing dissent is irrelevant in this context. Minister
Schönbohm’s silence can be neither considered to be a legal declaration, nor is there a duty to interrupt without
invitation.
168
2. Since there was no valid agreement from the Land Brandenburg, also the determination made after calling on the
other Länder that the Bundesrat had agreed to the Act had no legal effect.
Judges:
of Judges Osterloh and Lübbe-Wolff
on the judgment of the Second Senate of 18 December 2002
– 2 BvF 1/02 –
I.
169
We concur with the Senate majority that the Land Brandenburg initially did not vote uniformly in the ballot on the
Immigration Act. Were this to be the final finding – in this too we concur with the Senate majority – the Immigration
Act would not have effectively been confirmed in the Bundesrat for lack of a sufficient number of valid Yes votes. The
non-uniform vote casting in the first round however did not continue to apply. In contradistinction to the Senate
majority, we are of the view that the President of the Bundesrat with his enquiry, in response to the non-uniform vote
casting, as to how the Land Brandenburg voted, opened a new round of voting that was no longer dependent on the
votes cast in the first round, but on whether the Land now would cast its votes uniformly. This took place. The
Minister-President of the Land in the second round voted “Yes”. Minister Schönbohm no longer opposed this with a
statement clearly identifiable as a vote casting.
170
The legal view on which the judgment is based, by contrast, claims that an effective correction of the first non-
uniform vote casting did not take place because the President of the Bundesrat had not been entitled to enquire, and
certainly not in the manner in which it took place, and that therefore no new round of voting had hence been opened
by virtue of his making an enquiry in breach of his duty, so that the original “No” of Minister Schönbohm, which could
not be annulled by a contrary vote casting, remained in force. In the final analysis, this legal view ignores the right of
the Land Brandenburg to correct the non-uniform vote casting from the first round.
II.
171
The allegation of the applicants that “once an unmistakable vote was cast” it was “not revisable”, and hence was to
be registered without enquiry by the President of the Bundesrat, has no foundation in the applicable constitutional law
and law relating to rules of procedure. The Land Brandenburg was entitled to correct the voting conduct shown in the
first round (1.). Even if the presumption of the Senate majority were to be correct that the President of the Bundesrat
was not entitled to enquire subsequent to the first non-uniform ballot, the consequence of this would not have been
that no effective corrective vote casting of the Land Brandenburg could have taken place in the second round (2.).
The President of the Bundesrat was moreover very much entitled to enquire in the concrete situation (3.). Also, there
were good reasons for the form of the enquiry. Furthermore, even if one held the form of the enquiry to be erroneous,
the legal consequences cannot be assigned to such an error that the Senate majority assigns to it (4.). The Land
Brandenburg effectively used its right of correction in the second round, and uniformly voted “Yes” (5.).
172
1. a) If one presumes that an effective vote casting of the Land itself had not yet taken place at all in the first round
because of the non-uniformity of the vote casting of two Brandenburg Ministers (for instance in the instant
proceedings the statement by the Land Lower Saxony; see also v. Mutius/Pöße, Landes- und Kommunalverwaltung –
LKV 2002, p. 345 (348); Meyer, in: id. (ed.), Abstimmungskonflikte im Bundesrat im Spiegel der Staatsrechtslehre
(about to appear), p. 153; another view in Lerche, Bayerische Verwaltungsblätter – BayVBl 2002, p. 577 (578);
Gröschner, Juristenzeitung – JZ 2002, p. 621 (623)), it can be concluded from this alone that the Land had still to be
afforded the opportunity to cast its votes. In this context, it is presumed that two forms of error in a ballot can be
distinguished: ineffectiveness that already affects the act of voting (the vote was not actually cast in the legal sense)
and ineffectiveness which only affects the transmission of the content of the vote (the vote was cast, but is counted
as invalid, i.e. neither as a vote for one of the alternatives available, nor as an abstention).
173
The wording of Article 51.3 sentence 2 of the Basic Law speaks for the need of such a distinction and for the
supposition that the non-uniform statement of the Brandenburg Ministers through the vote casting of the Land falls in
the first category. Accordingly, the votes of a Land “can” only be cast uniformly, and only by Members present or their
substitutes. This wording suggests that, in contradistinction to for instance the use of the word “may”, it is not the
validity, but the very possibility of a non-uniform vote casting of the Land that is to be ruled out. The position of the
requirement of uniformity in its context is in the same vein. In Article 51.3 sentence 2 of the Basic Law, this
requirement is listed in the same line as the presence of the voting Bundesrat Members: “The votes of each Land can
be cast only uniformly and only by Members present or their substitutes”. There is no doubt as to how the case
should be treated if Bundesrat Members Ziel and Schönbohm had not been present at the session in question, but
had tried to send off the votes of the Land Brandenburg to the session by fax from Potsdam. No one would have
contested that the President of the Bundesrat in this case, after taking note of the faxes received, should have asked
the representatives of the Land Brandenburg present in the room how the Land Brandenburg voted, and that if he had
not asked this question on his own authority, the representatives of the Land Brandenburg present would have been
able to require that the Land be afforded the opportunity to cast a vote. If in the event of a ballot by absentees it is to
be presumed that here a casting of the votes of the Land which could block in any way the casting of the Land votes
by other representatives present did not take place at all, it therefore seems reasonable to presume the same also for
the case of non-uniform vote casting. Article 51.3 sentence 2 of the Basic Law states the requirements of presence
and uniformity directly next to each other and without any gradation. There would therefore have to be special reasons
for the presumption that non-adherence to these requirements is to be linked to different legal consequences.
174
The fact that the opinion quite prevalent in the literature to date regards votes that are not cast uniformly as invalid
cannot be taken as a statement regarding the question of whether the Land votes have been cast at all if two
Ministers do not cast their vote uniformly. Until the dispute arose on whether or not the Immigration Act was
confirmed, there was so little awareness on the distinction between Land votes being cast invalidly and not being cast
at all in the discussion on the legal consequences of non-uniform vote casting by several Land representatives that
the use of the word “invalid” cannot be interpreted as a vote for one or other alternative. For a long time, no one
thought of the possibility and the consequences of this distinction, as there was no dispute that had required the
distinction. A late example of this is provided by the written application in the instant proceedings. Aiming to establish
the legal consequence of invalidity, the applicants had argued here that if votes were cast non-uniformly by several
Land representatives, these were acting not for the Land, but had to be judged to be “private” votes. They only placed
this categorisation in perspective in the oral hearing after the statement of the Land Lower Saxony had introduced the
distinction between Land votes cast invalidly and not cast at all, and it had become clear that, if one were to take
account of this distinction, the presumption that the Ministers’ votes that were not cast uniformly were not to be
judged as Land votes is not in the applicants’ interest.
175
It also cannot be put forward against the presumption that the vote casting of the Land had not taken place at all in
the first round that the President of the Bundesrat himself had subsequently determined that “the Land Brandenburg
has not voted uniformly”. This determination need not be understood such that it is conditional on the existence of a
vote having been cast (as claimed however by Gröschner, ibid. p. 623). Apart from this, also in view of the state of
discussion at that time, the wording chosen may not be interpreted as taking up a position in the contentious question
of legal dogmatics concerned here. Moreover, a point of view formulated in this respect of the President of the
Bundesrat in the framework of the chairing of the session would not be relevant ipso iure to the interpretation of Article
51.3 sentence 2 of the Basic Law. A view of the President of the Bundesrat on this question expressed in the
procedure would be legally significant at best if it could be regarded as confirming a corresponding state practice. This
is however not the case. In the only previous case of non-uniform vote casting by the representatives of a Land in the
Bundesrat, after all the Länder had been called on in sequence to cast their votes, and when North-Rhine/Westphalia
was called on Ministers Halbfell and Dr. Weitz had cast diverging votes, the then President of the Bundesrat had
described the voting situation with the words: “Now there is not yet a vote from North-Rhine/Westphalia.” (Bundesrat
minutes no. 10 of 23 December 1949, p. 116). Also in the minutes at that time the non-uniform statements by the
Ministers were not noted as vote casting by the Land, but as interruptions by the Ministers (ibid.). It is irrelevant
whether this historical choice of wording and minute-taking is to be afforded any legal relevance whatever – it certainly
does not mark the start of a state practice according to which non-uniform Ministers’ votes are to be valued as Land
votes which are “invalid but cast”. These circumstances all suggest that there are good reasons after the non-uniform
statements of the Bundesrat Members Ziel and Schönbohm in favour of a decision that as yet no vote had been cast
that was legally attributable to the Land Brandenburg at all, so that as the vote proceeded a still unused right of the
Land to cast its votes had to be accommodated, and the President of the Bundesrat hence was not only entitled but
indeed obliged to enquire.
176
If there were to be an opposing legal view, the constitutional court’s case-law should have been taken into account
in accordance with which only a legally evident error in the legislative procedure leads to the nullity of the legal
provisions in question (see BVerfGE 34, 9 (25); 91, 148 (175); see also BVerfGE 31, 47 (53)). The question as to
whether or not after the non-uniform vote by two Brandenburg Bundesrat Members a vote by the Land had already
been cast as such was certainly not evidently to be answered in the first sense.
177
b) Even if one were to presume that an – invalid – vote had already been cast by the Land in the shape of the non-
uniform vote by two Land Ministers, the Land certainly had the right to correct this vote.
178
In accordance with § 32 sentence 1 of the Rules of Procedure of the Bundesrat, the decisions of the Bundesrat
become effective at the end of the session. The fact that until then a repeat of rounds of voting is not in principle ruled
out emerges from § 32 sentence 2 of the Rules of Procedure of the Bundesrat. This provision only provides for a
prohibition of renewed deliberation and voting on items the treatment of which is concluded for cases in which a Land
opposes the renewed treatment. If a ballot result is doubted in a direct connection with its announcement by the
President of the Bundesrat, the ballot is deemed not yet to have been concluded, with the consequence that the
repetition is not to be regarded as a “new” ballot within the meaning of § 32 sentence 2 of the Rules of Procedure of
the Bundesrat, and hence is admissible even against the opposition of a Land (so-called “unreal repetition”, see
Reuter, Praxishandbuch Bundesrat, 1991, marginal no. 16 re § 32 of the Rules of Procedure of the Bundesrat). It
certainly does not yet bindingly follow from the restriction on the possibility of repetition provided for in § 32 sentence
2 of the Rules of Procedure of the Bundesrat that repetition is permissible without restriction in all cases not covered
by it and can be called for (see also Reuter, ibid., marginal no. 23 re § 32 of the Rules of Procedure of the Bundesrat).
The Rules of Procedure do not contain a conclusive explicit provision in this respect. The state practice is therefore
significant for its interpretation in this point (on the significance of the state practice for the interpretation of Rules of
Procedures see BVerfGE 1, 144 (148-149); BVerfGE 91, 148 (171)).
179
It is a constant custom in the practice of the Bundesrat that the President of the Bundesrat has a ballot or a part of
it repeated if a party to the ballot so requests. As shown by the plenary minutes of the past years, this takes place
once or more in roughly half the sessions. In many cases, in such instances those who request the repetition do not
state a reason for this request. Indeed, an enquiry of the President of the Bundesrat as to the reason does not take
place in these cases. Custom hence evidently does not presume that repetitions are permissible exclusively to
resolve ambiguities or errors in the voting procedure, but not for instance because of changes of will, since if the
permissible reasons for repetition were to be restricted in this manner, the President of the Bundesrat would have to
examine in each instance whether a permissible reason for repetition pertains.
180
The principle of generous treatment of requests for repetition which is based on the state practice described, hence
claims validity not only for the standard form of the vote by raising hands dominant in practice (§ 29.1 sentence 1 of
the Rules of Procedure of the Bundesrat). Repetitions naturally take place above all with this type of voting because
counting errors, other errors and ambiguities may easily take place. One may however not conclude from this that
different principles apply to the practice of recording votes by calling on the Länder which is less error-prone in this
respect (§ 29.1 sentences 2 and 3 of the Rules of Procedure of the Bundesrat), and hence to the vote on the
Immigration Act. Rather, the practised indifference as to the reasons for repetition requests expressed in principle
speaks for it also not being important with ballots by raising hands whether a repetition takes place in order to remedy
ambiguities, correct errors or change voting intentions. Also, no distinction is made in the literature on the
admissibility of – real or unreal –ballot repetitions in the Bundesrat between the two types of ballot named in § 29 of
the Rules of Procedure of the Bundesrat (see Reuter, Praxishandbuch Bundesrat, 1991, marginal nos. 14 ff. re § 32 of
the Rules of Procedure of the Bundesrat).
181
Voting within the meaning of the provisions of the Rules of Procedure of the Bundesrat is the entire process of vote
casting by the Länder on one (individual vote) or several (collective vote) subjects of deliberation. A distinction should
be made from voting in this sense when it comes to votes cast by an individual Land in the context of a ballot. The
“second attempt” of Brandenburg to cast a valid vote which the President of the Bundesrat initiated with his enquiry
was accordingly not a ballot repetition within the meaning of § 32 sentence 2 of the Rules of Procedure of the
Bundesrat. However, no stricter principles apply to the repetition of the vote casting of an individual Land in the
context of a ballot than to the repetition of the entire ballot. On the contrary: Since in accordance with § 32 of the
Rules of Procedure of the Bundesrat only the repetition of the entire ballot is bound by the precondition that no Land
should contradict it, the repetition of the vote casting of an individual Land – where it can be sensibly separated from
the repetition of the ballot as a whole, as is the case with voting by calling on the Länder – is permissible
independently of this precondition. Accordingly, the vote cast by an individual Land “may be corrected in the practice
of the Bundesrat until the end of the respective ballot – be it because of an error or because of a change in intention”
(Reuter, Praxishandbuch Bundesrat, 1991, marginal no. 15 re § 32 of the Rules of Procedure of the Bundesrat).
182
This practice is not a product of chance or of arbitrariness. Analogous principles apply to ballots in the German
Bundestag and in the conciliation committee. Here too, in principle as long as the ballot as a whole is not closed, the
individual Members may correct their vote (Achterberg, Parlamentsrecht, 1984, p. 647; Dästner, Die
Geschäftsordnung des Vermittlungsausschusses, 1995, pp. 151-152). Both in the Bundesrat and in the Bundestag,
and in the conciliation committee, this practice of generous permission of correction takes account of the
constitutionally protected interest of the parties to the ballot in voting effectively and as they intend.
183
2. In consequence, if one presumes that in the first round a vote casting of the Land took place at all, the Land
Brandenburg was by recognised and constitutionally founded rules of procedure principles at least entitled to correct
this vote casting. If following on from the first round the President of the Bundesrat had forgone an enquiry, but a
representative of the Land Brandenburg had requested for the Land a new opportunity to cast a vote, the President of
the Bundesrat would have had to respect the Land’s right to make a correction and meet this request. In fact,
however, the Land Brandenburg did not express such a request. It had no opportunity to do so since directly after his
determination that the Land had not voted uniformly, the President of the Bundesrat on his own judgment afforded the
Land the opportunity for a new vote casting by his enquiry. This however changes nothing about the fact that the Land
Brandenburg was entitled to correct its vote casting which had been unsuccessful in the first round, and indeed
availed itself of this opportunity.
184
Even if one were to concur with the Senate majority in the presumption that the President of the Bundesrat was not
entitled to make his enquiry, it is unfathomable why this should have the consequence that the Land Brandenburg was
no longer able to exercise its right of correction effectively. The consequence of the view of the Senate majority is
that the President of the Bundesrat removes a Land’s right to correct its vote casting for the concrete case if he offers
the Land the opportunity to do so unasked. This is a unique case under public law. Usually and sensibly, rights, both
rights of a body and rights of the individual, can be violated by unlawful conduct by third parties, but in fact not
destroyed. Even if it were true that the President of the Bundesrat with his enquiry had violated his duty to be
unbiased: The Basic Law does not recognise a shifting of responsibilities between those participating in the procedure
permitting it to punish the Land Brandenburg with the loss of the possibility to correct its vote casting because of
unlawful conduct of the President of the Bundesrat.
185
3. Moreover, the view that the President of the Bundesrat was not entitled to enquire in the instant case is also not
convincing. The Senate majority presumes that the President of the Bundesrat is only entitled to enquire where
“ambiguities occur in the course of the ballot”, and hence also can only effectively open a new round of voting in this
case. Here, it is factually presumed that an enquiry in any other case can only be understood to be an expression of
bias. This presumption is incorrect. Efficient chairing of the session includes the chairperson recognising justified
procedural concerns of the participants in the session and, if one may presume an interest in carrying them out, the
participants in the session concerned per se being afforded the opportunity to exercise their procedural rights. Thus it
is avoided that the persons concerned must interrupt the continuation of the session to assert their rights by speaking
or shouting. The President of the Bundesrat does not violate his duty to be unbiased by anticipating justified
procedural interests in this manner, but only if he does not act equally favourably in comparable cases towards
different participants. Hence, in his discretion that is to be evenly exercised, the President of the Bundesrat may not
only afford to a Land the possibility to cast a fresh vote by making an enquiry if he is uncertain how the Land has
voted, or if there are indications that the vote casting which has taken place is based on an error, but also if another
justified interest of the Land in repetition is recognisable. This is not unauthorised influence by the President of the
Bundesrat since the Land asked is quite free to forgo the offered opportunity to cast a fresh vote. A violation of the
duty of neutrality would only be considered to lie in the excessive encouragement to correct a decision which the Land
in question recognisably does not desire, or which it has no recognisable reason to desire. This cannot apply to the
instant case, however. Brandenburg availed itself of the opportunity created with the first enquiry by the President of
the Bundesrat to correct (see on this also at 5.). The President of the Bundesrat could anticipate the interest in
correction of the Land thereby confirmed in view of the invalidity of the preceding vote cast.
186
With the criterion developed by the Senate majority to distinguish between authorised and unauthorised enquiries,
the Senate majority contradicts recognised constitutional principles for voting in the Bundesrat. In the view of the
Senate majority, there is no right to enquire “if a uniform Land will recognisably does not exist and it cannot be
expected in view of the overall circumstances for such a will to yet come into being during the ballot”. Hence, the right
to enquire is made dependent on case-related perceptions and prognoses which relate to the political positions of
individual Bundesrat Members and the formation of a uniform intention within a Land against the background of the
Bundesrat ballot. Such case-specific internal Land backgrounds are however irrelevant under federal constitutional
law, as the applicants have rightly stated in their written application in agreement with the very prevalent view in the
teaching on public law. Hence, it is not a matter of whether the vote cast in the Bundesrat has at all been preceded by
the formation of an intention within the government at Land level, whether Bundesrat Members have kept in their vote
casting to internally issued instructions within the Land, and whether their voting conduct emerges from their stance
on the subject of the ballot or from other political considerations (see instead of many Herzog, in: Handbuch des
Staatsrechts, vol. II, 1987, § 46, marginal no. 33; Korioth, in: v. Mangoldt/Klein/Starck, GG, vol. II, 4th ed. 2000,
Art. 51, marginal nos. 21, 23; Krebs, in: v. Münch/Kunig, GG, vol. II, 4th/5th ed. 2001, Art. 51 marginal no. 14, with
further references). Also for the question of whether the President of the Bundesrat in the event of non-uniform voting
is entitled to enquire, it can hence not be a matter of case-related interpretations and expectations which relate to the
intention-forming processes against the background of the respective voting conduct.
187
If the “uniform Land will”, on the foreseeability of which the Senate majority bases its further considerations, does
not mean the uniformity of any background convictions, but the uniformity of votes cast by the Land, it remains
unclear why in the case at hand it is not to have been foreseeable that this uniformity would yet come about in the
further course of the ballot. In fact, in response to an enquiry by the President of the Bundesrat a uniform vote of the
Land Brandenburg came about (more on this at 5.). Why the Senate majority nevertheless believes that it was able to
rule out that this could at least be expected as a possibility is not stated in the grounds to the ruling. In fact, any
attempt to answer this question would have made it clear that the distinction between clear and unclear cases on
which the Senate majority bases its arguments is in turn anything but clear, and hence is unsuited as a constitutional
standard for the conduct of the President of the Bundesrat.
188
In summary: That the President of the Bundesrat by his enquiry opened to the Land Brandenburg the possibility for a
renewed vote casting is constitutionally unobjectionable.
189
4. It may at best be doubtful whether the enquiry took place in the correct form. The President of the Bundesrat
asked “Minister-President Stolpe how the Land Brandenburg votes”. This clearly asked on the one hand as to how the
Land Brandenburg voted, and hence re-opened for the Land Brandenburg the opportunity for vote casting. At the same
time, this question was however specifically directed at the Minister-President. § 29 of the Rules of Procedure of the
Bundesrat provides in addition to voting by raising of hands voting by calling on the Länder. Accordingly, it is also
customary in practice that the President of the Bundesrat calls on Länder to vote without in doing so turning to
individual representatives of the Land. The Minister-President is – in this we concur with the Senate majority – also for
instance not the obvious addressee of any enquiries because, by his status under Land constitutional law, he had a
casting vote in the Bundesrat. All this speaks for enquiries in principle being directed to the Land in question, and not
to individual representatives of the Land.
190
Having said that, the legal situation in this question at the time of the ballot was not fully clarified. The President of
the Bundesrat was able for his approach to call on reputable representatives of the teaching on public law (Stern, Das
Staatsrecht der Bundesrepublik Deutschland, vol. II, 1980, p. 137; Blumenwitz, in: Bonner Kommentar, Art. 51,
marginal no. 29). The permissibility of an enquiry to the Minister-President was also favoured by the uncontested
approach in the only prior case of a non-uniform vote casting by Bundesrat Members of a Land. After in the tenth
session of the Bundesrat on 19 December 1949 two North-Rhine/Westphalian Ministers had voted non-uniformly,
evidently because of a disagreement on the decision situation in the cabinet, the then State President of
Württemberg-Hohenzollern and later President of the Federal Constitutional Court Gebhard Müller proposed “that the
Minister-President of North-Rhine/Westphalia casts the vote.” This is indeed what happened (see Bundesrat minutes
no. 10 of 23 December 1949, p. 116). The instant case showed in contrast to this historical precedent the particularity
that in the first round two Ministers had voted non-uniformly recognisably because of a decisive political
disagreement. Particularly because of this difference in the cases, however, it does not follow that the enquiry should
have taken place in another manner. For a chairperson who is entitled in cases in which votes are cast invalidly to
take account by making an enquiry of the Land’s interest in casting an effective vote (see above at 2.), on the
contrary it particularly suggested itself in this situation to address his enquiry solely to the Minister-President, from
whom one may anticipate in such a situation that he is able through his political authority to further the Land’s interest
in casting an effective vote. The President of the Bundesrat hence at least did not commit an evident procedural error
(see above at 1.a) by addressing his enquiry to the Minister-President of the Land Brandenburg.
191
The form of the enquiry also evidently has no “steering” influence on the further course of the proceedings. In
particular, it was unable to and did not prevent Minister Schönbohm from defending his rights as a Bundesrat Member.
The latter thereupon made a statement, although the enquiry of the President of the Bundesrat was not addressed to
him. That he did not express himself in a manner that would have been necessary to lawfully prevent the Immigration
Act coming to being (on this also at 5.) was not a factor related to the form of the enquiry.
192
5. Accordingly, with his enquiry the President of the Bundesrat effectively afforded the Land Brandenburg the
possibility to cast a fresh vote. In this second round, the Land voted uniformly. The Brandenburg Minister-President
voted “Yes”. No further No vote was cast.
193
Since a new, second round was taking place, the previous No vote was also no longer valid. The only opposition put
forward by Minister Schönbohm to the Yes vote of the Minister-President in the second round was by saying “You
know my view, President”. The view of the Bundesrat Member Schönbohm was indeed known. However, it was not
the point. Article 51.3 sentence 2 of the Basic Law does not require the representatives of a Land to express a
uniform view in the Bundesrat. What is exclusively decisive for the Basic Law is the uniformity of votes cast. As
stated above (at 4.), the uniformity of the underlying political views, as all the Land policy and Land constitutional
backgrounds to vote casting, are irrelevant from the point of view of the federal constitution. For this very reason, it is
necessary to distinguish clearly between casting a vote and expressing an opinion. The calls “Yes”, “No” or
“Abstention” could have been considered as votes cast in a ballot taken by calling on the Länder (§ 29.1 sentences 2
and 3 of the Rules of Procedure of the Bundesrat) (see Reuter, Praxishandbuch Bundesrat, 1991, marginal no. 7 re
§ 29 of the Rules of Procedure of the Bundesrat). The statement “You know my view, President”, by contrast, clearly
did not fall into this category.
194
That making the casting of a vote conditional on clear, clearly identifiable forms is not unnecessary formalism is
shown by the instant case in particular. If one were to diverge from this condition, and also interpret unconventional
statements as vote casting, there would be no end of interpretation. If it were possible and necessary to interpret the
statement “You know my view, President” as vote casting, the President of the Bundesrat would have had to
determine how the vote had hence been cast. It would have then been necessary to ask whether it was a “No” or
indeed its deliberate avoidance, whether perhaps it was indeed intended to keep this question undecidable, and so on.
Given such a need for interpretation, voting procedures would become inoperable. In ballots, it is hence only possible
to count a vote that is clearly cast as such.
195
No clear vote was however cast by Bundesrat Member Schönbohm in the decisive second round which could have
prevented the acceptance of the Immigration Act.
Judges: