Thu, May. 26, 2005

New Diet: Substantive Discontinuity

.   The surprise elections in Germany generate much discussion of the legality of chancellor Schröder's call to have the president disband the federal diet, Bundestag.

The Sartorienfelder blog examines an important issue that arises with the end of the current diet: What will happen to the legislation currently in progress?


When a new Congress comes into town, new legislation begins with bill number 1. Washington is surprised when a new Congress enacts major legislation quickly, as happened this year with S.5, the Class Action Fairness Act.


By contrast, certain legislation can survive elections in Germany, under the right conditions, which Sartorienfelder explores. The key principle is sachliche Diskontinuität, substantive discontinuity. This rule is the opposite of the Periodizitätsprinzip, the principle of periodicity found in Art 69(1)(1) of the federal constitution, author Uwe Tetzlaff explains, and not based on the constitution. It belongs to the procedural rules of the legislative body and constitutes a kind of constitutional common law.


Under the principle, certain legislation that has passed the diet and is not halted by other bodies can survive the electoral rupture. The rule permits the upper house, Bundesrat, to ratify legislation after a prior diet has been dissolved. Like Congress, a new Bundestag is not bound, however, by prior incomplete legislative efforts.



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