Constitutional groundwork

The constitution of the Federal Republic of Germany, known as the Grundgesetz (Basic Law), was adopted in 1949 to cement a political system based on freedom and democracy. In its preamble, the German people was called on to achieve in free self-determination the unity and freedom of Germany.

This came true in 1990. Following the conclusion on 31 August 1990 of the Unification Treaty (Einigungsvertrag) setting out the modalities for the German Democratic Republic's (GDR) accession to the Federal Republic, the preamble and concluding article of the Basic Law were revised. The text of the constitution now reflects the fact that, with the accession of the GDR, the Germans have regained their unity. Since 3 October 1990 the Basic Law is binding on the whole German nation.

The Basic Law states that the Federal Republic of Germany is a democratic and social federal state (Art. 20). All public authority emanates from the people. It is exercised by the people through elections and referendums and by specific legislative, executive and judicial bodies. The legislature is bound by the constitutional order, the executive and the judiciary by laws and justice. This applies both to the Federation and the Länder.

The exercise of governmental powers and the discharge of governmental functions are divided by the Basic Law (Art. 30) between the Federation and the Länder. Except as otherwise provided or permitted by the Basic Law these are incumbent on the Länder. At federal level, legislative functions are essentially discharged by the German Bundestag and executive functions are essentially executed by the Federal Government. At the level of the Länder they are discharged by the Land parliaments and the Land governments respectively.

Functions of the judiciary are exercised by the Bundesverfassungsgericht (Federal Constitutional Court), other federal courts and the courts of the Länder (Art. 92 of the Basic Law). The Federal Constitutional Court rules on interpretation of the Basic Law in particular.

The Federal President

The Federal President (Bundespräsident) is the head of state of the Federal Republic of Germany. He is elected by the Federal Convention (Bundesversammlung) for a period of five years (Art. 54 of the Basic Law). The Federal Convention is a constitutional body which meets only to elect the Federal President. It is made up of members of the Bundestag as well as the same number of delegates elected by the parliaments of the Länder. The Federal President represents the Federal Republic of Germany in its international relations. He concludes treaties with foreign countries on behalf of the Federation, while the actual conduct of foreign policy is the prerogative of the Federal Government.

The present incumbent is Frank-Walter Steinmeier who entered office in February 2017.

The Bundestag

The Bundestag is the parliamentary assembly representing the people of the Federal Republic of Germany. After the elections to the German Bundestag in September 2021, the assembly currently features 736 seats. The members of the Bundestag are elected by secret ballot at general, direct, free and equal elections for a term of four years (Art. 38 of the Basic Law). The main functions of the Bundestag are to adopt legislation, elect the Federal Chancellor and monitor and control the activities of the Federal Government. The Bundestag has formed committees for specific subject areas. Education and research are dealt with by the Committee on Education, Research and Technology Assessment. Most of the bills submitted to parliament for its consideration come from the Federal Government, while a smaller number are introduced from the floor of the Bundestag itself or by the Bundesrat, the representative body of members of the Länder governments.

The Bundesrat

The Bundesrat, the representative body of the 16 Länder, is also involved in legislation and federal administration as well as in issues of the European Union (Art. 50 of the Basic Law). The Bundesrat is composed of members of government in the Länder. Each of the Länder has between three and six votes depending on their population, although the votes of one Land cannot be split. The smallest of the 16 Länder have three votes, those with a population over two and up to six million inhabitants have four votes, while Länder with a population over six million are entitled to cast five votes and those with a population over seven million may cast six votes of the total of 69 votes. A considerable part of all federal legislation is subject to the approval of the Bundesrat. Legislation requires such approval particularly when it refers to the finances or the administrative authority of the Länder.

Of the Bundesrat's 16 committees, the Cultural Affairs Committee, the Internal Affairs Committee and the Committee for European Union Issues are the main committees responsible for science and education. For urgent cases the Bundesrat has a Europe Chamber, which can quickly take decisions on EU legislative proposals (Art. 52, paragraph 3a of the Basic Law). The Länder rights of participation in European Union affairs are laid down in Article 23 of the Basic Law and set out in detail in the Act on Cooperation between the Federation and the Länder in European Union Affairs (Gesetz über die Zusammenarbeit von Bund und Ländern in Angelegenheiten der Europäischen Union – EUZBLG) adopted in 1993. The rights and obligations of participation of the Länder provided for in said Law are exercised through the Bundesrat. The nature and scope of such rights and duties are based on the internal assignment of responsibilities between the Federation and the Länder. When legislative powers exclusive to the Länder in school education, culture or broadcasting are primarily affected, the exercise of the rights belonging to the Federal Republic of Germany as a member state of the European Union is delegated to a representative of the Länder designated by the Bundesrat.

The Federal Government

The Federal Government is comprised of the Federal Chancellor and the Federal Ministers. The Federal Chancellor enjoys an autonomous, eminent position within the Federal Government and with regard to the Federal Ministers. He makes proposals to the Federal President on the appointment and removal of ministers (Art. 64 of the Basic Law) and directs the affairs of the Federal Government. The strong position of the Federal Chancellor is based first and foremost on his power to determine general policy guidelines as enshrined in Article 65 of the Basic Law: The Federal Chancellor sets out general policy guidelines and is responsible for them.

The present incumbent, OLAF SCHOLZ (Social Democratic Party), has been in office as Federal Chancellor since December 2021. After the general elections in September 2021, the Bundestag elected him Federal Chancellor for four years.

Within the Federal Government, it is the Federal Ministry of Education and Research (Bundesministerium für Bildung und Forschung – BMBF), that is responsible for policy, coordination and legislation regarding out-of-school vocational training and continuing education, financial assistance for pupils and students, as well as for the admission to higher education institutions and the degrees they confer. Furthermore, the Federal Ministry of Education and Research exercises the responsibilities of the Federation as part of the joint tasks of the Federation and the Länder (Art. 91b of the Basic Law). Other Federal ministries are also involved, as they are responsible for certain aspects of education and science. As of 2021, these ministries are:

• the Federal Foreign Office is responsible for Foreign Cultural Policy including German schools abroad
• the Federal Ministry of the Interior, Building and Community is responsible for the legislation on the status-related rights and duties of the civil servants of the Länder, which include most teachers
• the Federal Ministry of Justice and Consumer Protection is responsible for the legislation on entry to the legal profession
• the Federal Ministry of Labour and Social Affairs is responsible for measures to promote employment and for labour market research
• the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth is responsible for child and youth welfare
• the Federal Ministry of Health is responsible for regulations on entry to the medical and paramedical professions
• and the Federal Ministry for Economic Cooperation and Development is responsible for international continuing education and development

The Federal Constitutional Court

Based in Karlsruhe, the Federal Constitutional Court (Bundesverfassungsgericht) is responsible for monitoring compliance with the Basic Law. It examines legislation enacted at federal and Land level to ensure that it is compatible with the Basic Law. Any citizen of the Federal Republic has the right to file a complaint with the Federal Constitutional Court if he feels his basic rights have been violated by the state.

The Länder as constituent states within the federal state

One of the fundamental elements of the Basic Law (Grundgesetz), besides the principles of democracy and the rule of law, is the principle of federalism (Art. 20, paragraph 1). Federalism has a long, many centuries covering tradition in Germany. The members of the Parlamentarischer Rat (Parliamentary Council) who established the constitutional order of the Basic Law in 1948/49 created a federalist order in the newly-founded Federal Republic of Germany not only in order to carry on this constitutional tradition but also in order to make a conscious break with the National Socialist centralist state (1933-1945). In doing so they returned the school system, in particular, into the hands of the Länder. The Federal order is an unassailable constitutional principle which is subject to the so-called ‘Eternity Clause’ of the Basic Law (Art. 79, paragraph 3) and is therefore exempt from constitutional amendment.

The major characteristic of the federal state is that both the Federation and its constituent states, known as Länder, have the status of a state. One core element of this status is, according to the constitutional order laid down in the Basic Law, the so-called cultural sovereignty (Kulturhoheit), i.e. the predominant responsibility of the Länder for education, science and culture. This element is at the heart of their sovereignty. This means in principle that each Land bears responsibility for its educational and cultural policy, with the proviso that, in accordance with the federalist principle, they lend expression to the historical, geographical, cultural and socio-political aspects specific to their Land and thus to diversity and competition in the education system and in the field of culture. On the other hand, the constituent states of the federal state bear joint responsibility for the entire state. This overall responsibility both entitles and obliges them to cooperate with one another and to work together with the Federal Government.

Except as otherwise provided or permitted by the Basic Law, the exercise of governmental powers and the discharge of governmental functions are incumbent on the Länder (Art. 30 of the Basic Law). Each Land has its own constitution – according with the principles of a republican, democratic and social state governed by the rule of law within the meaning of the Basic Law (Art. 28). The distribution of legislative competence between the Federation and the Länder is defined in the Basic Law, in that the Länder shall have the right to legislate insofar as this Basic Law does not confer legislative power on the Federation (Art. 70). Educational and cultural legislation is therefore primarily the responsibility of the Länder. The administration of these matters is almost entirely the responsibility of the Länder. Alongside education, science and culture there are other major fields in which the Länder enjoy exclusive powers; these include internal security/police, local government and regional structural policy.

With a view to coordinating cooperation in the areas of education and training, higher education and research, as well as cultural matters, the Länder established the Standing Conference of the Ministers of Education and Cultural Affairs (Ständige Konferenz der Kultusminister der Länder) in 1948, which has served as a forum for cooperation ever since. The Conference of Ministers of Youth and Family Affairs (Jugend- und Familienministerkonferenz – JFMK) is the expert body of the ministers and senators of the Länder responsible for child, youth and family policy. It discusses and decides on important and fundamental matters of child, youth and family policy. Similarly, the Länder have set up conferences of the relevant ministers for the other areas of responsibility, such as the Conference of Ministers of the Interior and the Conference of Ministers of Economics.

Local self-government

Local self-government as an expression of civil freedom has a long tradition extending as far back as the Middle Ages in Germany. The right of local authorities (Kommunen) to self-government as enshrined in the Basic Law (Art. 28) covers issues pertaining to the local community such as maintenance of roads and public facilities as well as local public transport and town planning. It also includes the construction and maintenance of further public service areas, such as day care centres for children, school buildings, theatres and museums, hospitals, sports facilities and swimming pools. The local authorities are likewise responsible for adult education and youth welfare and help promote and support cultural activities by providing the majority of public expenditure in this area. In order to meet these responsibilities, local authorities are entitled to levy their own taxes and charges (property and trade tax, local consumer and expenditure taxes). The local authorities also receive a proportion of wage and income taxes, as well as of turnover tax.