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43rd Amendment Act of November 3, 1995; the 44th Amendment Act of October 20, 1997; the 45th Amendment Act of March 26, 1998 and the 46th Amendment Act of July 16, 1998 (Germany [de])

© 1999 Oxford University Press
 

43rd Amendment Act of November 3, 1995; the 44th Amendment Act of October 20, 1997; the 45th Amendment Act of March 26, 1998 and the 46th Amendment Act of July 16, 1998

In June 1995, we published our English translations of the 41st Amendment of August 30, 1994, and the 42nd Amendment of October 27, 1994. Since that time, there have been four more Amendments: the 43rd of November 3, 1995, the 44th of October 20, 1997, the 45th of March 26, 1998, and the 46th of July 16, 1998. At this time, we are publishing English translations to bring our English translations of the Basic Law up to date.

The 43rd and 44th Amendment Acts to the Basic Law

The 43rd Amending Act of November 3, 1995, concerned Article 106 paragraphs 3 and 4. It may be noted that Article 106, which concerns the apportionment of tax revenues, is among the frequently amended articles of the Basic Law. The original (1949) article, which consisted of four paragraphs, was relatively simple. Further changes were made by the 44th Amendment on October 20, 1997, which affect the text of paragraphs 3, 5a and 6. The first two articles have remained unchanged, but the third article was amended in 1995 and again in 1997. The present paragraph 4 was inserted in 1995. Paragraph 5a was inserted on October 20, 1997, as were paragraphs 6 and 7.

Article 106 (paragraphs 3-9) now read as follows:

  • (3) Revenue from the income tax, the corporation tax and the turnover tax accrues jointly to the Bund and to the Länder (joint taxes), insofar as the revenue from income tax, pursuant to paragraph 5, and the income from the turnover tax, pursuant to paragraph 5a, is not allocated to municipalities. The revenues from income taxes and corporation taxes are shared equally by the Bund and the Länder. The shares of the Bund and the Länder from the turnover tax are established by a Federal Law, which requires the consent of the Bundesrat. In the determination, the following principles shall apply:

    1. 1.  Within the framework of current revenues the Bund and the Länder have equal claim(s) to the coverage of their current expenditures. In this extent of the expenditures shall be determined with due consideration of financial planning over several years.

    2. 2.  The requirements for financial coverage by the Bund and by the Länder shall be coordinated in a way that achieves an equitable balance, excessive burdening is avoided and the uniformity of living conditions in the entire federal territory is preserved.

    Also, in the determination of the shares of the Bund and the Länder from the turnover tax, reductions in revenue incurred by the Länder from January 1, 1996, due to the provisions made with regard to children in income tax law shall be taken into account. Details are provided by federal law pursuant to paragraph 3.

  • (4) The shares of the Bund and the Länder in the revenue from the turnover tax are to be newly determined if the ratio between the revenues and the expenditures of the Bund and Länder develop in a substantially different way. Reductions in revenue, which according to the fifth sentence of paragraph (3) are to be taken into account in the determination of the turnover tax, shall not be applied (unberücksichtigt). If additional burdens are imposed or revenues are withdrawn by a federal law, the additional burden may be adjusted (ausgeglichen) by means of financial grants by the Bund on the basis of a federal law, which requires the consent of the Bundersrat, provided they are limited to a short time. The law shall determine the principles for the calculation of these financial grants and for their distribution among the Länder.

  • (5) The municipalities receive a share of the revenue from the income tax, which shall be passed on by the Länder to the municipalities on the basis of the income tax burdens (Einkommensteuerbelasturgen) of their inhabitants. Details are determined by a Federal Law which requires the consent of the Bundesrat. It can provide that the municipalities can determine the proportions (Hebesätze) of the municipal share.

  • (5a) Beginning on January 1, 1998, the municipalities receive a share of the revenue of the turnover tax. It is passed on by the Länder to the municipalities on the basis of a key related to the location and the economy. Details shall be determined by a federal Law which requires the consent of the Bundesrat.

  • (6) The revenue from the real property tax and the trade tax accrues to the municipalities, the revenue from local excise taxes accrues to the municipalities, or as provided by Land legislation, to associations of municipalities (Gemeindeverbände). The municipalities are accorded the right to set the tax assessment on real property and trades within the framework of the laws. If there are municipalities in a Land the revenue from real property and trade taxes as well as the local use and excise taxes accrue to the Land. Federation and Länder can participate in the revenue from the trade tax by an assessment. Details concerning the assessment are determined by a Federal law, which requires the consent of the Bundesrat. In accord with Land legislation, taxes on real property and trades as well as the share of he municipalities of the revenue from the income tax and the turnover tax may be used as the basis for calculating the apportionment.

  • (7) Of the Land share of the total revenue from joint taxes a percentage accrues to the municipalities or associations of municipalities which is to be determined by Land legislation. For the rest, the Land legislation determines whether, and to what extent, revenue from Land taxes accrues to the municipalities (associations of municipalities).

  • (8) If the Bund causes individual Länder of municipalities (associations of municipalities) to institute special facilities, which result directly in additional expenditures or reductions in revenue (extra burdens) to these Länder or municipalities (associations of municipalities), the Bund shall provide the required compensation, if and insofar the Länder or municipalities (associations of municipalities) cannot be expected to bear the extra burdens. Compensation by third parties and financial advantages that accrue to the Länder or municipalities (associations of municipalities), as a result of the special facilities, shall be taken into account in the compensation.

  • (9) As revenues and expenditures of the Länder in the meaning of this article, are also deemed the revenues and expenditures of the municipalities (associations of municipalities).

The 45th Amendment Act of March 26, 1998 to the Basic Law

Article 13 (paragraphs 3-7):

  • (3) If certain facts justify the suspicion that someone who committed a serious crime, as specified by law, it is permissible for the prosecution of the deed to employ, on the basis of a judicial order, technical means for the acoustical surveillance of residencies, in which the accused presumably dwells, if the determination of the factual situation would be disproportionately more difficult or hopeless. A time limit is to be established. The decision shall be ordered by a judicial panel composed of three judges. In case of danger by delay, such a decision can also be made by a single judge.

  • (4) For the defense against imminent dangers to the public security, especially a common danger or a life-threatening danger, technical means for the surveillance of residences may be employed on the basis of a judicial order. In case of danger by delay, such a measure can also be ordered by an authority (Stelle) specified by law; a judicial decision is to be requested without delay.

  • (5) If technical means are considered exclusively for the protection of persons active in residences, the measure can also be ordered by an authority specified by law. Another (anderweitige Verwertung) utilization of the findings hereby attained is only admissible, for the purpose of criminal prosecution or the defense against danger, if the legality of the measure has been determined in advance. In case of danger by delay, the judicial decision shall be subsequently obtained without delay.

  • (6) The Federal Government shall inform the Bundestag annually concerning the instituted technical measures, according to paragraph 3 as well as according to paragraph 4 about the scope of competence of the Bund, and according to paragraph 5 about the institution of technical measures, which require judicial review. A board, elected by the Bundestag on the basis of this report, exercises parliamentary control. The Länder provide equivalent parliamentary control.

  • (7) The previous paragraph 3 becomes paragraph 7.

In our June 1995 release, we provided an English translation of Article 28(2) as amended on October 10, 1994. At that time the third sentence was amended. On October 20, 1997, the same article was again amended. This time it concerned the 5th and 6th sentences. At this time we provide a translation of the entire paragraph 2 of Article 28. It now reads as follows:

Article 28

  • (2) Municipalities must be given the right to regulate all matters of the local community on their own responsibility within the framework of the laws. Associations of municipalities also have the right of self-administration within the scope of their legal competences. The guarantee of self-administration encompasses the bases of financial autonomy, to these bases belong the right to establish taxation rates, related to their economic ability.

The 46th Amendment Act of July 16, 1998 to the Basic Law

This amendment concerning Article 39 changed the time limits within which new elections to the Bundestag (as amended on August 23, 1976) must be held. These limits were formerly "forty-five months at the earliest and forty-seven at the latest after the beginning of the electoral period."

The new limits are 45 and 48 months. The entire Article 39 now reads as follows:

Article 39

  1. (1)  Except for the following provisions, the Bundestag is elected for four years. Its electoral term ends with the convening of a new Bundestag. The new elections are held, at the earliest, forty-six months after, or at the latest, forty-eight months after the beginning of the new electoral period. In case of a dissolution of the Bundestag new elections are held within sixty days.

  2. (2)  The Bundestag convenes at the latest on the thirtieth day after the elections.

  3. (3)  The Bundestag determines the end and the resumption of its sessions. The President of the Bundestag may convene it earlier. He is obligated to do so, if one third of the Members, the Federal President or the Federal Chancellor demand it."