The Gazette 1974

etc.—are in practice as well as in theory covered by Lander Acts and in fact the Bonn Parliament has never intruded therein. Also one must not forget that foreign affairs, defence, citizenship and immigration, which Mr. Mathews sees as suggestive of the over- whelming power of the federal legislator, even in the United States have at all times been controlled by Federal authorities. One should bear in mind that notwithstanding the importance of legislature there are other State activities to consider. I have mentioned that domestic ad- ministration is almost entirely a matter for the Lander. Moreover the executive power in Germany and in- deed in most European states has outgrown the stage of merely performing Acts of Parliament or ensuring that they are observed. The foundation of new univer- sities, the construction of public swimming-pools and roads, the running of local transports, etc., is done by local authorities and Lander on their own or in co- operation. All these projects may receive financial as- sistance from the Federal Government, yet the latter is not allowed to embark upon them. Finally the Lan- der Courts are invested with full and original jurisdic- tion in all judicial matters. No case can be brought be- fore a Federal Court unless two Lander Courts—the second being the appropriate Court of Appeal—have given their decisions. In no event can a Federal Court make inquiries into questions of facts. The only excep- tion to this rule is the Federal Constitutional Court, who functions as a guardian of the Constitution rather than an umpire between the Federal State and the Lander. However it was the Federal Constitutional Court which in 1961 derived an all-important principle from the federalistic structure of this country, namely that both the Federal State and the Lander are obliged to act in co-operation and in consideration of each other's interests. This rule was established follow- ing a complaint by the Lander Hessen and Hamburg that the Federal State had founded its own Television Company though at that time the Federal State and the Lander were engaged in negotiating a TV Channel based on a common effort. Those are some of the reasons why I myself and presumably a great many of my countrymen do not see eye to eye with Mr. Mathews' conclusion that West Germany is 'no longer a truly democratic or federal state'. Yet I cannot but share Mr. Mathews' pessimistic view as regards a federalistic Europe. Would not Mr. Mathews agree that for once a lesser 'diversity in gov- ernment and politics' would do much to advance the envisaged European Union? Yours faithfully, Michael Berg. Irish Banks' Standing Committee Nassau House, Nassau Street, Dublin 2. 30 September 1974 The Secretary, Incorporated Law Society, The Kings' Hospital, Blackhall Place, Dublin 7. Marking, Certifying and Guaranteeing Cheques before Issue Dear Sir, It has been decided by the member Banks of this Committee that, with effect from 31 October 1974, the 291

5300 Bonn,

Heerstr. 155,

West Germany 1 / 7 / 1974

Dear Mr. Gavan Duffy, It was with the greatest interest that I read Mr. J. Mathews' assessment of the situation of Federalism in West Germany which you published in the May issue of the Law Gazette. However, I feel I ought to add a few observations which might throw a different light upon the matter. I am sure the present Bonn Govern- ment would like to see the Federal Council (Bundesrat) in as inferior a position as depicted by Mr. Mathews. Unfortunately for them this is not so. The opposition in the Federal Assembly, the German equivalent of the Dail, at present hold a majority in the Federal Council; tliis is due to a number of Lander being governed by the Christian Democratic Party, while Social and Free Democrats form the Federal Government. Fre- quently members of the Federal Government have accused the Christian Democratic Party of using their stronghold in the Federal Council to frustrate Govern- ment Bills. The influence of the Federal Council and its independence from other Federal authorities cannot be doubted. The recent controversy of the two Cham- bers on a bill amending the Criminal Act's section on abortion and in fact generally legalising abortion when committed during the first three months after the con- ception of the foetus is another shining example of this. It is true that it is a rare occasion when a bill actually falls through owing to the Federal Council's opposition. However if a compromise cannot be found before the bill is presented to Parliament the Govern- ment understandably will rather put it back than risk a defeat. Although there is no such principle established in the Basic Law, the bulk of Government Bills cannot be enacted unless expressly approved of by the Federal Council. This is mainly due to the fact that all Acts regulating the procedure of Lander ad- ministration need the approval of the Federal Council. A vast number of Acts must include such regulations as the Federal Government lacks in any administrative substructure; the constitutional principle being that Federal Law is carried out by Lander authorities in their own right. Thus the Lander Executive is neither responsible to the Federal Government nor subject to their instructions. Any administrative regulations to avoid miscarriage of Federal Law must have the con- sent of the Federal Council (art. 83, 84 of the Basic Law). However, the approval must be given to the Act as a whole, not only to the specific section dealing with the administrative procedure. As far as Land Law is concerned I am not aware of any federal statutes determining its application or any other interference by federal authorities. On balance the Federal Council cannot be denied its quality as a highly-political assembly. As for the legislative jurisdiction, art. 70 of the Basic Law unequivocally states that the legislative jurisdiction on principle lies with the Lander. This is of the great- est importance as legislation is gradually spreading into all walks of life. Any addition to the enumerated areas of federal jurisdiction needs the consent by two thirds of the members in both Federal Chambers. The sub- ject-matter named in Mr. Mathews' article—educa- tion, culture, religious affairs, police, local government