Direct Democracy in Germany by Ralph Kampwirth
with additional remarks by Otmar Jung
Re-printed from
Direct Democracy in Europe: A Comprehensive Reference Guide to the Initiative and Referendum Process in Europe Edited by Bruno Kaufmann and M. Dane Waters Carolina Academic Press, Durham, North Carolina. Sponsored by IRI Europe, Initiative & Referendum Institute Europe and IRI Initiative & Referendum Institute* Some country statistics are at the end of this paper.
Germany has seen a very strong trend towards more direct democracy since reunification in 1990. The most developed of the federal states is Bavaria, which has had more than a quarter (33) of the 145 popular initiatives in the 16 Länder and 5 of the 10 citizen-initiated referendums since 1990.
A major problem has been poor design of the I&R instruments, which are not very citizen-friendly; this has weakened the potential of citizen lawmaking.
An average of approximately 200 local referendums are held in Germany every year. In Bavaria alone, more than 1,360 initiatives have been launched and 640 referendums held since I&R was established there in 1995.
At the national level, the Christian Democrats have blocked the introduction of direct democracy, which is promoted by almost all the other parties.
Types of Initiative and Referendum
The Bundesrepublik is a federal country. Re-unified Germany consists of 16 states (Länder), 323 districts (Landkreis) and 13,854 local authorities (Kommune), of which 2,047 are towns and cities. The federal states have important powers that are primarily administrative, for example in the areas of transport, education, culture, policing, and the environment. The states participate in national legislation on matters which concern them via the Bundesrat (national parliament), which is composed of representatives from all the state governments. The local authorities have competence in certain areas of decision-making, such as local taxation, energy supply, refuse collection, roads and transport, infrastructure, and planning permission.
I. National Level
Germany is one of the few EU countries which so far have no experience of national referendums. The constitution provides for national referendums only on changes to administrative boundaries. In the Weimar Republic, there were three popular initiatives and two national referendums (in 1926 and 1929); during the National Socialist period, three plebiscites were held, with biased questions and blatant manipulation of results.
II. Regional Level
Six of the 11 states of the former Federal Republic (the "old" Bundesländer)Bavaria, Berlin, Bremen, Hesse, Nordrhein-Westfalen and Rheinland-Pfalzincorporated both initiative and referendum into their new constitutions immediately after 1945. Baden-Württemberg and the Saarland followed suit in the 1970s. After 1990, the peaceful revolution in the former GDR unleashed a wave of reform which meant that by 1994, all 16 "old" and "new" federal states had introduced elements of direct legislation.
In all states, popular participation in the formulation and passing of laws is divided into three stages, but since the specific procedures have been elaborated by the individual states themselves, they vary considerably in detail. The following gives a broad outline of the most important provisions:
a. First Stage: Petition ("Popular Initiative," an application for the commencement of a process which may ultimately lead to a referendum)
• The first stage is when citizens present a formal application/request to initiate the process. This application can be called a popular initiative. In Brandenburg and Schleswig-Holstein, the state parliament is already involved at this stage, advising and deciding on the application.
• The legality of the application is checked at this stage.
• The quorum, or minimum required number of signatures to launch the initiative, varies from 3,000 (Nordrhein-Westfalen) to about 120,000 (Hesse). The quorum is usually expressed as a percentage of the electorate.
• Initiatives on both legislative and constitutional matters are allowable in principle in most parts of Germany, although in Berlin, Hesse and the Saarland, constitutional issues are excluded.
• In practice, only legislative proposals (draft laws) are allowed, although in principle "other political issues" can be raised in Brandenburg, Hamburg and Schleswig-Holstein.
• Initiatives dealing directly or indirectly with the economy (the so-called "finance tabu"), including taxation and the salaries of politicians and officials, are excluded.
b. Second Stage: Initiative ("Popular Demand,"Volksbegehren)
• The second stage involves the collection of signatures supporting the initiative.
• Signature quorums usually vary between 8% and 20% of the state electorate. Only Brandenburg, Hamburg and Schleswig-Holstein have low, "citizen-friendly" quorums of 4% and 5%.
• Registration procedures vary. Nine states permit the free collection of signatures within time limits of between three and 12 months. In the seven remaining states, signatures have to be recorded in designated official places, and time limits vary between two weeks and two months.
• A "Volksbegehren" which achieves the required number of signatures must be debated in the state parliament (Landtag). If the latter accepts the proposal as it stands, no referendum need be held. If the proposal is not accepted and the issue is taken to referendum, the parliament has the right to make a competing, alternative legislative proposal.
c. Third Stage: Citizens’Decision ("Referendum,"Volksentscheid)
• A referendum result is legally binding. However, in most statesin contrast to the rule in electionsa simple majority of votes cast does not automatically win.
• In referendums on straightforward laws, most states demand a minimal approval of either 20%, 25%, or 33% of the electorate. Nordrhein-Westfalen demands a participation quorum of 15%; Rheinland-Pfalz, of 30%. Only Bavaria, Hesse, Nordrhein-Westfalen and Saxony do not require such a threshold.
• In constitutional referendums, all states have a minimum approval quorum of 50%, with the exemption of Bavaria, where the approval quorum is 25%. Moreover, this quorum is further linked to a supermajority of two-thirds in favor of the reform, which makes any changes virtually impossible. In practice, about one fourth of all citizens’ initiatives are declared invalid on legal grounds. By 2003, 145 popular initiatives/petitions ("Volksinitiativen") had been started. 41 of them reached the second stage, the popular demand ("Volksbegehren"), and ten eventually went to referendum. The largest proportion of popular initiatives (31 out of 131) and referendums (5 out of 10) were in Bavaria, the only state which can claim any regular and active use of the instruments of direct democracy in Germany.
The overall view is somewhat sobering: in only four of the 16 federal states has there been a citizen-initiated referendum. As a statistical average, a referendum takes place in each federal state only once in 43 years. The direct success rate of all initiatives launched is around 20%. In addition to legislative referendums, other types of referendums exist. 14 state constitutions were accepted by popular referendum. In Bavaria and Hesse, there is also the statutory constitutional referendum, which has been invoked on five occasions in each of these states. Seven referendums have been held on boundary changes. In all, there have been 34 referendums since 1946 in all the federal states combined.
III. Local Level
The wave of reform which spread after 1989 affected the local authority level as well as the state level. Before this reform, the right of popular involvement in decision-making by local referendum (Bürgerentscheid) was known only in Baden-Württemberg, but today direct democracy has been introduced at the local level in 15 of the 16 states. Only in Berlin is there still no direct democracy at the district level within the city. Bavaria and Hamburg are special cases. Here the right to local referendum was introduced by the people themselves in statewide referendums, even though in both cases the state government was opposed to it. It is no surprise, therefore, that these two states have by far the most liberal procedures. In all the states, the popular decision-making process is in two stages:
a. Popular Initiative (Bürgerbegehren)
• In the majority of states, certain important local issues are excluded from the process (these are listed in a socalled "negative catalogue"). Only Bavaria, Hamburg, Hesse and Saxony generally forego such exclusions.
• In half of the states there is a sliding scale of signature quota depending on the size of the community: in Hamburg it is from 2% to 3%; in Sachsen-Anhalt, from 6% to 15%. In the remaining states there is a uniform threshold, varying from 10% to 20% between states.
• Time limits for signature collection apply only when the initiative is directed against some decision taken by the local authority. The period of time allowed varies from four weeks to three months.
• Normally, the local authority decides on the admissibility of an initiative. The initiative group can appeal a negative decision.
• The local council can accept the initiative, in which case the issue does not go to referendum.
b. Citizens’Decision (Bürgerentscheid)
• In almost all the federal states there is a participation quorum of between 20% and 30%. Initially, Bavaria had no quorum, but the state government (Landtag) introduced a sliding scale of between 10% and 20% depending on the size of the community. Only in Hamburg is a simple majority of the votes accepted without further qualifications or restrictions.
• When a local referendum has been successful, the majority of states impose an exclusion period of one to three years, during which the referendum result can be repealed, or allowed to lapse, only by a new referendum.
An average of about 200 local referendums are held in Germany every year. The most by far are in Bavaria, where there were more than 1,260 initiatives and 578 referendums in the first six years after I&R was instituted. This still means that each community in Bavaria has a referendum only, on average, once every 24 years. In the other federal states, where the hurdles are higher, local referendums are used less frequently. For example, in Lower Saxony there have been only 54 initiatives and 18 referendums, giving an average of only one referendum per community every 344 years.
IV. Trends
There is a clear trend in Germany towards more direct democracy. However, the path towards a workable popular right to direct participation in decision-making is still long and arduous. The ruling SPD/Green coalition presented a bill on citizens’ initiative and referendum to the Bundestag in the summer of 2002. However, the proposal did not obtain the required supermajority of two-thirds of votes in the parliament. The federal government elected in 1998a coalition of the SPD, the citizens’ rights party Bündnis 90 and the Greenshad promised to introduce a national right to citizen participation in legislation. Three of the five parties represented in the Bundestag supported this intention, but without the support of the CDU, it could not obtain the two-thirds majority required in the Bundestag for constitutional change. There is still a chance that the initiative element of I&Rthe right to force parliament to debate a topic chosen by the peoplemight be introduced. All parties in the Bundestag promised that there would be a new attempt after the national elections in autumn 2002. This could be the first stage of a gradual introduction of direct democracy at the national level.
During the debate about a referendum on the new EU constitution, the Liberals and the Bavarian Christian Democrats proposed a single referendum law. However, the government coalition of Social democrats and Greens tried again to introduce the full right of initiative and referendum into the German constitution, and the Christian Democrats blocked everything.
a. PollsOpinion polls show that between 70% and 85% of the public supports the idea of national referendum.
In September 2001, Mehr Demokratie launched a national campaign under the slogan "Menschen für Volksabstimmung" ("People for Popular Referendum"). The campaign is supported by an alliance of 80 different organizations representing the environment, citizens’ rights, trade unions, employers, churches, and social groups.
At the state and local authority levelsin particular as a result of the wave of reform beginning in the early ’90sthere has been a dramatic increase in the number of popular initiatives. However, for the majority of initiatives at the federal state level, the experience has been sobering. Despite wide popular support, they have typically failed to reach the high quorums required by current law. As a result, some states have already seen a decrease in the numbers of initiatives.
b. Wave of ReformsThere is an urgent need to reform institutions for direct democracy in the federal states.
After the initial successes of Mehr Demokratie in Bavaria and Hamburg, state governments and constitutional courts have blocked all subsequent popular initiatives to extend citizens’ direct-democratic rights. The justification for blocking them is the usual, highly questionable assertion that extending the right of citizens to be directly involved in decision-makingincluding the drafting, passing and repealing of lawswould violate the norms of German democracy. Opponents of direct democracy claim that the current, unsatisfactory state of German direct democracy represents the maximum that can be legally achieved. Such judgments reflect the enormous distrust of the people which still characterizes many in positions of power in Germany, especially within the political and legal elites. Despite this, state parliaments in Bremen, Hamburg, Nordrhein-Westfalen and Rheinland-Pfalz recently decided to lower the hurdles for direct democracy at the state and local levels, although their reforms have been fairly minor. Other states are also debating whether to simplify the rules for popular initiatives.
Main author: Ralph Kampwirth, with additional remarks by Otmar Jung
*GERMANY
• Population: 82,047,000
• Area: 357,022 km2
• Capital: Berlin
• Official languages: German (91%), and in certain regions also Danish, Sorbian, Friesian
• Religion: Protestant (34%), Roman Catholic (33%)
• Political System: Federal Republic (since 1949), with 16 autonomous States (own constitution, parliament)
• Constitution: 1949 (without referendum)
• Membership: EU, NATO
• GNP/Capita: $25,350
• Human Development Rank: 18
• I&R practice: six nationwide before WWII (three referendums, three Hitler plebiscites), growing regional (54) and local (1000s) referendum experience.