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State of defence

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The term State of Defence (in German: Verteidigungsfall or V-Fall) refers to the legal status of the Federal Republic of Germany if it is "under attack by armed force or imminently threatened with such an attack".[1] This special status, which was created by a constitutional amendment in 1968, gives the Federal Government extraordinary powers in the case of war. It is laid down in the articles 115a to 115l (Title Xa) of the German Constitution. As of February 2016, Germany has never been in the State of Defence.

Declaration

According to article 115a of the German Constitution, the State of Defence shall be declared if "the federal territory [of the Federal Republic of Germany] is under attack by armed force or imminently threatened with such an attack".

The normal procedure is that, upon request of the Federal Government, the Bundestag determines that the conditions of the State of Defence exist. That means that the Bundestag does not actually declare the State of Defence; instead, it just decides whether it exists or not. (If e.g. a foreign army invaded Germany, the Bundestag would determine that this action is an "attack by armed force" as described in article 115a and that consequently Germany is in the State of Defence.) This determination by the Bundestag requires a two-third majority of the votes of those members of parliament present at that time (at least 50% of the MPs have to be present to reach a quorum[2]). It also has to be approved by the Bundesrat with an absolute (i.e. more than 50%) majority of all of its members (which according to general Bundesrat protocol are given in bundled form by each Land).

If the Bundestag or the Bundesrat are not able to convene in time or not able to reach a quorum, the Joint Committee decides on their behalf.

If Germany is under attack by armed force and neither the Bundestag and the Bundesrat nor the Joint Committee are able to determine the State of Defence immediately, "the determination shall be deemed to have been made and promulgated at the time the attack began". (If, for example, an invasion started on January 4 at 4:17 a.m., Germany would be in the State of Defence from January 4, 4:17 a.m. on, and the government could react without having to wait for the consent of the parliament.)

Consequences

Shifting of power of command

According to article 115b GG, the Federal Chancellor becomes Commander-in-chief of the armed forces. (Normally, the Minister of Defence holds this post.)

Extension of federal legislative powers

According to article 115c GG, the federation has extended legislative powers:

  • The federation can pass laws with respect to any matter - even those matters that normally would be under exclusive legislative power of the states.
  • Temporary provisions concerning the compensation for expropriations may differ from the requirements laid down in the constitution.
  • A law may rule that people arrested by police may be held in custody for four days before being brought before a judge (normally, this has to happen "no later than the day following his arrest".[3]) However, this applies only if no judge has been able to act in the normal time limit.
  • Laws concerning financial matters may differ from the requirements laid down in the titles VIII, (The Execution of Federal Laws and the Federal Administration) VIIIa (Joint Tasks) and X (Finance) of the constitution.

Additionally, the normal legislative procedure is replaced by a faster one:

  • According to article 115d GG, bills are discussed "without delay" and adopted by the Bundestag and the Bundesrat together in a single joint session.

Joint Committee

The Joint Committee (Gemeinsamer Ausschuss) consists of members of the Bundestag and members of the Bundesrat. Two-thirds of the committee members are provided by the Bundestag and one third are provided by the Bundesrat. The committee members of the Bundestag are designated by the Bundestag "in proportion to the relative strength of the various parliamentary groups". Every state is represented by a Bundesrat member. The committee members of the Bundestag must not be members of the government, the committee members of the Bundesrat are "not bound by instructions" [4] That means that the Joint Committee consists of 16 members of the Bundesrat (one for each state), and 32 members of the Bundestag (twice the number of Bundesrat members), giving it a total number of 48 members. The members of the Joint Committee and their deputies are already designated during peacetime.[5]

The Joint Committee takes over the tasks of both the Bundestag and the Bundesrat if, during a state of defence, it determines, with a two-thirds majority of its vote, that either the Bundestag or the Bundesrat are not able to convene in time or are not able to reach a quorum. This majority must include at least a majority of all committee members (i.e. at least 25 members). This rule is important when not all committee members are available: If e.g. only 30 committee members could be reached, 20 votes would be a two-thirds majority; however, at least 25 votes would be required for the determination. If the Joint Committee is not able to reach full strength (48 members), the Bundestag (in case of missing or dead Bundestag committee members) and/or the state governments (in case of missing or dead Bundesrat committee members) designate new committee members.[6]

The Joint Committee takes over any task normally dealt by the Bundestag and/or the Bundesrat. All decisions which would normally be made by the either the Bundestag, or the Bundesrat, or both of them, is made by the entire Joint Committee. However, there are some limitations to the power of the Joint Committee (when compared to Bundestag and Bundesrat):

  • It may not amend, abrogate, or suspend the constitution in whole or in part.
  • It may not enact laws pursuant to the articles 23 (European Union - Protection of basic rights - Principle of subsidiarity), 24 (Transfer of sovereign powers - System of collective security), or 29 (New delimitation of the federal territory) of the constitution.
  • A vote of no confidence by the Joint Committee requires a two-third majority (instead of just more than half of the votes, as needed for a vote of no confidence by the Bundestag).
  • Laws enacted by the Joint Committee may be repealed at any time by the Bundestag with the consent of the Bundesrat.

The Joint Committee is based on the articles 53a (Composition - Rules of procedure) and 115e (Joint Committee) of the constitution, as well as on own rules of procedure.

Use of Federal Border Guard

According to article 115f, paragraph (1), clause 1 GG, the Federal Government may employ the Federal Border Guard throughout the federal territory, i.e. everywhere in Germany.

When the Emergency Acts were passed, the Federal Border Guard was a paramilitary police force responsible only for the protection of West Germany's external land and sea borders. Over the decades, however, the role of the Federal Border Guard, and even its name, changed - today the Federal Police is also responsible for the security of the railway network, provides airport security and protects federal buildings. But as the entire title Xa was never changed after it had been passed in 1968, the term Federal Border Guard is still used in the constitution.

Extended powers of instruction

According to article 115f, paragraph (1), clause 2 GG, the Federal Government may issue instructions to state governments and state authorities. (Normally, state governments act on their own and state authorities receive their orders only from the state government).

Extended electoral terms

According to article 115h GG, electoral terms that would expire during the state of defence are extended:

  • The electoral term of the Bundestag or a state parliament ends six months after the termination of the state of defence.
  • The term of office of the Federal President ends nine months after the termination of the state of defence.

Conscription

In 2011 the German Conscription Act was changed to abolish peacetime conscription. Effective from July 1 conscripts may only be drafted during the state of tension or state of defence.[7]

Termination

According to article 115l GG, the state of defence ends when it is declared terminated by the Bundestag. The Bundestag declares the state of defence to be terminated, if the conditions for determining it no longer exist, e.g. after a peace treaty has been signed.

References

  1. ^ article 115a GG
  2. ^ section 45 of the Rules of Procedure of the German Bundestag (German)
  3. ^ article 104 GG
  4. ^ which is said explicitly here, because otherwise they are. A member of the Bundestag is generally not bound by any instruction.
  5. ^ current members of the Joint Committee (January 2012)
  6. ^ section 1 of the Rules of Procedure of the Joint Committee (German)
  7. ^ section 2 of the Conscription Act (German)
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