State of Defence (Germany)
The state of defence (in German: Verteidigungsfall or V-Fall) is the constitutional state of emergency in Germany if the country is "under attack by armed force or imminently threatened with such an attack".[1] Established by a constitutional amendment in 1968 during the Cold War, this state of emergency gives the federal government extraordinary powers in wartime. It is laid down in the articles 115a to 115l (title Xa) of the German Constitution. As of November 2020, 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, for example, a foreign army invaded Germany, the Bundestag would determine that the action is an "attack by armed force", as described in article 115a, and so Germany is in the State of Defence.) The determination requires at least two thirds of the votes of the Bundestag present at that time (at least half of the members being the quorum[2]). It also has to be approved by the Bundesrat with more than half of its members, which, according to general Bundesrat protocol, is given in bundled form by each Land.
If the Bundestag or the Bundesrat is not able to convene in time or not able to reach a quorum, the Joint Committee decides on their behalf, but approval by the Bundestag and Bundesrat has to be achieved as quick as possible afterwards.
If Germany is under attack by armed force and the Bundestag, the Bundesrat and the Joint Committee are not 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 that time, and the government could react immediately.
Consequences
Commander-in-chief
According to Article 115b GG, the Federal Chancellor becomes Commander-in-chief of the armed forces. (Normally, the Minister of Defence holds that post.)
Extension of federal legislative powers
According to Article 115c GG, the federal government has extended legislative powers:
- The federal government may pass laws with respect to any matter even if it would normally be under exclusive legislative power of the Länder.
- Temporary provisions concerning the compensation for expropriations may differ from those 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 (instead of "no later than the day following his arrest".[3]) However, that 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.
Legislative procedure
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, 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, one third 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 Land is represented by a Bundesrat member. The committee members of the Bundestag must not be members of the Cabinet, and the committee members of the Bundesrat are exceptionally "not bound by instructions". There are thus 16 members of the Bundesrat (one for each Land), 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.[4]
The Joint Committee takes over the tasks of both the Bundestag and the Bundesrat if, during the State of Defence, it determines, with a two-thirds majority of its vote, that either the Bundestag or the Bundesrat is not able to convene in time or reach a quorum. That majority must include at least a majority of all committee members (at least 25 members). For example, if only 30 committee members could be reached, 20 votes would be a two-thirds majority, but 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.[5]
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 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 constructive vote of no confidence by the Joint Committee requires a two-thirds majority (instead of just the majority of the votes 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 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, everywhere in Germany. By law a Compulsory Border Guard Service is still in force, but will only be executed in the state of defence or if there are not enough volunteers joining the federal police.
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 have changed to Federal Police. The Federal Police is also responsible for the security of the railway network, airport security and the protection of federal buildings. However, as the entire title Xa has not been 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 Land authorities receive their orders only from the Land 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 end of the State of Defence.
- The term of office of the President ends nine months after the end of the State of Defence.
Conscription
In 2011, the German Conscription Act was changed to suspend - but not abolish - peacetime conscription. From July 1, conscripts may not be drafted except during a State of Tension or a State of Defence.[6]
Termination
According to Article 115l GG, the State of Defence ends when it is ended by the Bundestag "if the conditions for determining it no longer exist", such as after a peace treaty is signed.
