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Germany: the power of the President if there is no majority

My colleague James Sloam writes here about the likely outcomes of the German election.

The most likely outcome is still a majority for CDU-CSU + FDP. If they don't have enough seats, then the next most likely outcomes are either a grand coalition of CDU-CSU + SPD or a coalition of CDU-CSU plus the Greens. But what happens if the CDU-CSU is unable to come to an agreement with either the SPD or the Greens? In 2005, this is what happened following the elections. After some time in which the SPD and CDU did not speak to each other, a Grand Coalition was subsequently formed.

For further guidance, we need to look at Article 63 of the German Basic Law or Constitution. First, the Federal President nominates a Chancellor. If the Bundestag rejects this nomination, which it has never done, then the Bundestag moves to elect a Chancellor of its own volition within 14 days and by an absolute majority. In 1949, this condition was inserted in case the President abused his powers of appointment in the same way as President Hindenburg back in 1925-34. In practice, the President has since 1949 always nominated the clear leader of the winning coalition. In 2005, Angela Merkel was eventually nominated with the consent of the SPD and was in any case the leader of the largest party. Article 63(4) tells us that if after 14 days an absolute majority in the Bundestag fails to elect a Chancellor, it will then proceed to elect a Chancellor by simple majority. If there is no absolute majority the President may decide either to accept that Chancellor or to dissolve the Bundestag for new elections.

In other words, if an election is inconclusive and nobody can find an overall majority in the Bundestag, the President has a significant - and never used - power to choose to go for new elections or indeed to veto a dissolution and to accept a government without an overall majority.

In 2005, it was probably the threat of using this power (rather than its actual use) that led to the Grand Coalition. The President may well have told Angela Merkel and Gerhard Schröder that he would not consent to a second dissolution.



Posted on Friday, September 13, 2013 at 01:20PM by Registered CommenterDr Giacomo Benedetto | CommentsPost a Comment

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