State of Defence (Germany)
Encyclopedia
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". 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 October 2011, Germany has never been in the State of Defence.
] 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 mentioned 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
). It also has to be approved by the Bundesrat
with an absolute (i.e. more than 50%) majority of all of its members (not only of those who are present - as the Bundesrat has 69 members, at least 35 votes would be required).
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.)
, the Federal Chancellor becomes Commander-in-chief of the armed forces
. (Normally, the Minister of Defence
holds this post.)
Additionally, the normal legislative procedure is replaced by a faster one:
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". Today, 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.
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 (today 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, including the official deputies (today 30 Bundestag members and 16 Bundesrat members), 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.
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):
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.
throughout the federal territory, i.e. everywhere in Germany.
When the Emergency Acts where 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.
. 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.
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
if it is "under attack by armed force or imminently threatened with such an attack". This special status
State of emergency
A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
, which was created by a constitutional amendment
German Emergency Acts
The German Emergency Acts were passed on 30 May 1968 at the time of the First Grand Coalition between the Social Democratic Party of Germany and the Christian Democratic Union of Germany. The Emergency Acts faced opposition from outside the German parliament...
in 1968, gives the Federal Government
Politics of Germany
The Federal Republic of Germany is a federal parliamentary republic, based on representative democracy. The Chancellor is the head of government, while the President of Germany is the head of state, which is a ceremonial role but with substantial reserve powers.Executive power is vested in the...
extraordinary powers in the case of war. It is laid down in the articles 115a to 115l (Title Xa) of the German Constitution
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
. As of October 2011, 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 GermanyGermany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
] is under attack by armed force or imminently threatened with such an attack".
The normal procedure is that, upon request of the Federal Government
Cabinet of Germany
The Cabinet of Germany is the chief executive body of the Federal Republic of Germany. It consists of the Chancellor and the cabinet ministers. The fundamentals of the cabinet's organization are set down in articles 62 to 69 of the Basic Law.-Nomination:...
, the Bundestag
Bundestag
The Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
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 mentioned 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
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
). It also has to be approved by the Bundesrat
Bundesrat of Germany
The German Bundesrat is a legislative body that represents the sixteen Länder of Germany at the federal level...
with an absolute (i.e. more than 50%) majority of all of its members (not only of those who are present - as the Bundesrat has 69 members, at least 35 votes would be required).
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.)
Shifting of power of command
According to article 115b GGBasic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
, the Federal Chancellor becomes Commander-in-chief of the armed forces
Bundeswehr
The Bundeswehr consists of the unified armed forces of Germany and their civil administration and procurement authorities...
. (Normally, the Minister of Defence
Federal Ministry of Defence (Germany)
The Federal Ministry of Defence is a top-level federal agency, headed by the Federal Minister of Defence as a member of the Cabinet of Germany...
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 statesStates of GermanyGermany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
. - Temporary provisions concerning the compensation for expropriationsNationalizationNationalisation, also spelled nationalization, is the process of taking an industry or assets into government ownership by a national government or state. Nationalization usually refers to private assets, but may also mean assets owned by lower levels of government, such as municipalities, being...
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".) 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 BundestagBundestagThe Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
and the BundesratBundesrat of GermanyThe German Bundesrat is a legislative body that represents the sixteen Länder of Germany at the federal level...
together in a single joint session.
Joint Committee
The Joint Committee consists of members of the BundestagBundestag
The Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
and members of the Bundesrat
Bundesrat of Germany
The German Bundesrat is a legislative body that represents the sixteen Länder of Germany at the federal level...
. 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
States of Germany
Germany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
is represented by a Bundesrat member. The committee members of the Bundestag must not be members of the government
Cabinet of Germany
The Cabinet of Germany is the chief executive body of the Federal Republic of Germany. It consists of the Chancellor and the cabinet ministers. The fundamentals of the cabinet's organization are set down in articles 62 to 69 of the Basic Law.-Nomination:...
, the committee members of the Bundesrat are "not bound by instructions". Today, 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.
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
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
. This majority must include at least a majority of all committee members (today 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, including the official deputies (today 30 Bundestag members and 16 Bundesrat members), 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.
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 confidenceConstructive vote of no confidenceThe constructive vote of no confidence is a variation on the motion of no confidence which allows a parliament to withdraw confidence from a head of government only if there is a positive majority for a prospective successor...
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 GuardBundesgrenzschutz
Bundesgrenzschutz was the first federal police organization in Western Germany after World War II permitted by the Allied occupation authorities. In July 2005, the BGS was renamed Bundespolizei to reflect its transition to a multi-faceted police agency.It was established in 1951...
throughout the federal territory, i.e. everywhere in Germany.
When the Emergency Acts where passed, the Federal Border Guard was a paramilitary
Paramilitary
A paramilitary is a force whose function and organization are similar to those of a professional military, but which is not considered part of a state's formal armed forces....
police force responsible only for the protection of West Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
'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
Rail transport in Germany
, Germany had a railway network of 41,315 km. 19,857 km are electrified. The total track length was 76,473 km. Germany is a member of the International Union of Railways . The UIC Country Code for Germany is 80.-Overview:...
, provides airport security
Airport security
Airport security refers to the techniques and methods used in protecting airports and aircraft from crime.Large numbers of people pass through airports. This presents potential targets for terrorism and other forms of crime due to the number of people located in a particular location...
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 BundestagBundestagThe Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
or a state parliament ends six months after the termination of the state of defence. - The term of office of the Federal PresidentPresident of GermanyThe President of the Federal Republic of Germany is the country's head of state. His official title in German is Bundespräsident . Germany has a parliamentary system of government and so the position of President is largely ceremonial...
ends nine month 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 defence.Termination
According to article 115l GG, the state of defence ends when it is declared terminated by the BundestagBundestag
The Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
. 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
Peace treaty
A peace treaty is an agreement between two or more hostile parties, usually countries or governments, that formally ends a state of war between the parties...
has been signed.