has now put his foot down, or rather written it down.
In a letter to the Minister and Ministers Steffi Lemke, Robert Habeck and Christian Lindner, Scholz expressly made use of his authority to issue directives and decided that the legal basis for the continued operation of Isar 2, Emsland and Neckarwestheim 2 should be created.
The authority to issue directives is laid down in Article 65 sentence 1 of the Basic Law and in Section 1 GOBReg. The Federal Chancellor determines the policy guidelines and is responsible for them. The guidelines laid down by the Chancellor are binding for the federal ministers and are to be implemented on their own responsibility. This individual responsibility of the ministers already points to another principle that is contrary to the authority to issue directives: the departmental principle. This principle, laid down in Art. 65 sentence 2 GG, gives the ministers independent management authority and their own responsibility over their areas of responsibility, i.e. not merely the implementation of the Chancellor's directives. To complete the constitutional ménage-à-trois, the third sentence of Article 65 of the Basic Law also lays down the collegial principle, which means that all ministries of the Federal Government work together in order to reach a collegial decision or agreement in the event of disputes.
These three principles must be balanced. Doubts could arise as to whether Scholz was allowed and able to exercise his authority to issue directives in this case.
A distinction must be made between what is permissible and what is possible. First of all, the may.
The collegial principle cannot put a stop to the Federal Chancellor's request. This applies when there are disagreements between the ministries concerning issues for which no binding guidelines have been established.
The departmental principle could stand in the way of exercising the authority to issue directives. This would be the case if the instruction to allow the continued operation of the designated nuclear power plants is not a directive at all. It is possible to understand a directive as a guideline for decision-making, which only specifies the basic political directions, but does not define specific individual cases.
However, decisions on individual cases are ultimately political decisions for which the Federal Chancellor bears full political responsibility. He can only bear this responsibility if he is allowed to bring about a decision on the issue. In the case of the authority to issue directives, it is not a question of whether a general political course is to be set or whether an individual decision is to be taken, but whether this question has comprehensive political significance. If it does, the Federal Chancellor can only be responsible for decisions that lie within his direct sphere of influence and for which the respective ministers can no longer insist on making their own decisions on the basis of their departmental principle. Otherwise, the Federal Chancellor would also have to bear responsibility for the fact that the question of continued operation is still being debated for weeks and a decision comes too late or is taken contrary to his own convictions.
In view of the current energy crisis and the long-running dispute, particularly between the Minister of Economics and the Minister of Finance, the question of the continued operation of the nuclear power plants is of great political importance and may therefore be decided by the Federal Chancellor by way of his authority to issue directives.
The question remains as to whether the Federal Chancellor only has this power in formal terms, meaning that the ministries concerned do not have to follow his instructions, or whether the exercise of this authority is such a powerful formality that the Federal Chancellor has thereby spoken a real word of power, which he can enforce accordingly within the ministries.
Formally, the entire Federal Government is bound by the decision of the Federal Chancellor. However, there is no instrument available that would enable the Federal Chancellor to "intervene" directly in the ministers' areas of responsibility and take the necessary actions on their behalf. In this respect, his power is of a formal nature. Ministers who do not wish to comply with the decision cannot be forced to produce the necessary draft legislation. In such a case, the Federal Chancellor would have to dismiss the relevant ministers and appoint new ministers. This competence of the Federal Chancellor arises from Art. 64 para. 1 GG.
Such a procedure would be a further escalation stage that would have far greater political implications than just the implementation of a directive. Accordingly, ministers are dismissed with caution, as it could lead to the collapse of the coalition and exacerbate a government crisis.
The power to issue directives is therefore not such a powerful formality that a problem area can be regarded as definitively over once it has been debated.
Nevertheless, in this case the minister concerned and the ministers have made it clear that they want to act in accordance with Scholz's instructions and are preparing the necessary legislation. A draft bill could still fail in parliament alone. Members of Parliament are not subject to the Chancellor's directive, but solely to their conscience, Art. 38 para. 1 sentence 2 GG.
The Federal Chancellor was allowed to exercise his authority to issue directives on the issue of the continued operation of nuclear power plants. However, his directive only binds the government and cannot be enforced against the will of the ministers. Nevertheless, Chancellor Scholz exercised more than a formal power. The formal exercise of the power to issue directives can be used as a political instrument to establish government discipline. In this respect, it is similar to the vote of confidence(Article 68 of the Basic Law), which has already been called several times in the history of the Federal Republic and was intended to discipline parliament on a number of occasions. Both Chancellor Helmut Schmidt in 1982 and Chancellor Gerhard Schröder in 2001 used the vote of confidence to discipline Parliament. Both wanted to ensure that their policies were supported by Parliament in general and their coalition partners in particular. In the first case, support was needed for the NATO double-track decision, in the second case for the deployment of the Bundeswehr in Afghanistan. In both cases, the vote of confidence led to the Chancellor's policy being endorsed by Parliament and the political decisions being supported, even though the reservations on the substantive issue remained.
For Chancellor Scholz, the vote of confidence could potentially have been an opportunity to gain the necessary support for his political course. Even now, the vote of confidence remains a means available to him if the draft legislation prepared by the ministries for the lifetime extension is in danger of not finding a majority in parliament. Article 81 para. 1 of the German Basic Law provides for a question of confidence to be linked to a substantive issue. However, the vote of confidence always carries the risk of not receiving a vote of confidence from Parliament. The consequence of this would not be the immediate dissolution of parliament, as this would first require a corresponding motion to be submitted to the Federal President, but at the very least it would significantly damage one's own position of power. Such a connection would only be an option for Scholz if the matter were urgent enough.
Similarly, the exercise of the power to issue directives can exert pressure on the lead ministry to draft legislation in accordance with the Chancellor's specifications in the run-up to a legislative resolution. On the other hand, pressure can also be exerted on the relevant ministers to implement decisions that meet with their own approval but are contrary to the political will of the core electorate. By externalizing the decision to the chancellor, political pressure is taken off the relevant minister.
The power to issue directives is therefore one thing in any case: a powerful instrument in political discourse.
Janina Kusterka Dr. Fiete Kalscheuer