Germany, Hierarchy, Boundaries - understand-culture

The Supervisory Board May Not Manage

The Stock Corporation Act says: Der Vorstand hat unter eigener Verantwortung die Gesellschaft zu leiten. The management board runs the company on its own responsibility. The supervisory board oversees it, but management measures cannot be transferred to the supervisory board.

It may only require that certain kinds of transactions need its consent. The shareholders’ meeting may decide a question of management only if the management board asks it to. In a limited liability company, the GmbH, the arrangement is different. There the managing directors must observe the limits that the shareholders set.

Piëch Keeps His Distance

On 10 April 2015 Ferdinand Piëch, chair of Volkswagen’s supervisory board, told Der Spiegel: Ich bin auf Distanz zu Winterkorn. I am keeping my distance from Winterkorn. Martin Winterkorn was the company’s chief executive. A week later, the presidium of the supervisory board called Winterkorn the best possible chief executive and proposed extending his contract.

According to the news agency dpa, the other five members of the presidium all stood against Piëch. On 25 April Piëch resigned from all his posts at Volkswagen with immediate effect.

Bismarck and the Order of 1852

A Prussian cabinet order of 8 September 1852 regulated the position of the minister-president toward the other ministers. In March 1890 Kaiser Wilhelm II demanded that Otto von Bismarck draft an order to repeal it. Bismarck refused. In his letter of resignation of 18 March 1890 he argued that unified policy was impossible wenn jeder einzelne Minister allerhöchste Anordnungen extrahieren kann, if each individual minister can extract orders from the monarch.

He wrote that he was außerstande, Euerer Majestät Befehl auszuführen, unable to carry out Your Majesty’s command. The dispute over the order was the formal occasion of his dismissal. The two men were also divided over social policy and the Social Democrats.

A Low Point in Federal Culture

In April 2021 the federal government took over part of the Covid rules from the states. Under the Bundesnotbremse, the federal emergency brake, curfews, contact limits and other measures applied automatically in any district where the seven-day incidence was above 100 on three consecutive days. The Bundestag passed the law on 21 April 2021. The next day the Bundesrat, the chamber of the states, let it pass.

Its president, Reiner Haseloff, the premier of Saxony-Anhalt, said: Der heutige Tag ist für mich ein Tiefpunkt in der föderalen Kultur der Bundesrepublik Deutschland. For me, today is a low point in the federal culture of the Federal Republic of Germany. An objection by the states, he said, would only have delayed the law, not improved or prevented it. The law expired on 30 June 2021.

The Ban on Cooperation

Since the federalism reform of 2006, the Basic Law has kept the federal government out of the states’ school policy, in particular by not allowing it to finance education measures. Germans call this the Kooperationsverbot, the ban on cooperation. To let federal money flow into school digitalization, the Basic Law had to be amended. The Bundesrat approved the change unanimously on 15 March 2019.

Even now, the federal government may help the states only with investments in municipal education infrastructure and with temporary spending directly tied to them. In a 2020 survey by the ifo Institute, 60 percent of respondents said the federal government should in principle make the important decisions in education policy.

Wages Are Not the State’s Business

Article 9 of the Basic Law protects the right to form associations to improve working and economic conditions. From it follows the Tarifautonomie, under which unions and employers set wages free from state interference. A statutory minimum wage arrived only on 1 January 2015, at 8.50 euros an hour. Its adjustments were left to a commission in which unions and employers each have three voting members.

In 2022 the Bundestag instead raised the minimum wage by law, to 12 euros from 1 October. When the plan was presented, the president of the employers’ federation BDA, Rainer Dulger, called it a grobe Verletzung der Tarifautonomie, a gross violation of bargaining autonomy. The federation complained that the increase was set without the commission that was actually responsible.

Judges Answer Only to the Law

Article 97 of the Basic Law: Die Richter sind unabhängig und nur dem Gesetze unterworfen. Judges are independent and subject only to the law. Judges still have a superior for administrative matters. The German Judges Act limits that supervision: Der Richter untersteht einer Dienstaufsicht nur, soweit nicht seine Unabhängigkeit beeinträchtigt wird.

A judge is subject to supervision only as far as it does not impair his independence. The superior may point out an improper manner of handling official business, and may urge orderly and timely work. Anything that would impair the judge’s independence is outside the superior’s reach.

Clarity of Responsibility

Under the Hartz IV reform, the Federal Employment Agency and the districts ran joint job centers for people on long-term benefits. On 20 December 2007 the Federal Constitutional Court ruled that the arrangement violated the districts’ right to perform their tasks on their own responsibility.

It also violated the principle of Verantwortungsklarheit, clarity of responsibility, because it prevented a clear attribution of state action to one of the two bodies. To keep the joint job centers, the Basic Law itself was amended in July 2010 with a new Article 91e.

Portfolio Against Guidelines

In June 2018 the interior minister, Horst Seehofer, wanted to turn back certain asylum seekers at the German border. Chancellor Angela Merkel wanted a European solution. Seehofer’s party, the CSU, argued that the minister’s responsibility for his own portfolio took precedence, and that he could act alone if necessary.

Lawyers debated how far the chancellor’s Richtlinienkompetenz, her power to set the guidelines of policy, reached into a minister’s portfolio. Seehofer said: Mir gegenüber hat sie mit der Richtlinienkompetenz nicht gewedelt. She did not wave the guideline power at me.

Before the Law

In Franz Kafka’s parable Vor dem Gesetz (Before the Law), a man from the country asks a doorkeeper to let him into the law. The doorkeeper says: Ich bin mächtig. Und ich bin nur der unterste Türhüter. Von Saal zu Saal stehn aber Türhüter, einer mächtiger als der andere. I am powerful. And I am only the lowest doorkeeper.

But from hall to hall there are doorkeepers, each more powerful than the other. The man waits for the rest of his life. At the end the doorkeeper tells him that this entrance was meant only for him. Ich gehe jetzt und schließe ihn. I am going now to close it. The parable was first published in 1915 and is part of Kafka’s novel Der Process (The Trial).