What is behind the chancellor’s power, whether it was permissible and what it means for the chancellor’s authority – here are the most important questions and answers:
Federal Chancellors only make use of the directive competence in special cases. The social democrat Helmut Schmidt once stated that he had never used the instrument. Instead, he saw it as a duty “to make great efforts to bring about reasonable, practically useful compromises that are equally reasonable for both sides”.
It was different with the former chancellor. Angela Merkel (CDU) north of Thomas de Maizière at the height of the refugee crisis. Merkel also once clashed with Horst Seehofer. It was again about the refugee issue. The chancellor explained the CSU interior minister’s plan to unilaterally reject certain refugees at the border as a matter of her competence to issue guidelines.
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>> Read also: The atomic boom from Chancellor Olaf Scholz: Three winners and one loser
During his term in office, the former SPD Chancellor Gerhard Schröder explicitly referred to his authority to set guidelines, for example with regard to the 2001 Afghanistan policy.
Is the policy decision on the nuclear power plant dispute a sign of strength?
For the Berlin political scientist Gero Neugebauer, the matter is clear: “The decision gives him respect and strengthens his authority,” Neugebauer told the Handelsblatt. “Olaf Scholz delivers the leadership that he promised to deliver.” Neugebauer is alluding to Scholz’s much-quoted sentence: “Anyone who orders leadership from me must know that they will get it.”
Podcast: Did the Greens draw red lines too early in the nuclear power plant dispute?
On the other hand, it is remarkable that the chancellor used his authority to set guidelines in his first year in office. The Green faction deputy Konstantin von Notz points out that the instrument is a card, “that you can’t draw often“. The Green politician Jürgen Trittin quoted Franz Müntefering, who once said about the Chancellor’s authority to set guidelines: “Anyone who does this in a coalition knows that the coalition is over.”
What exactly is behind the directive competence that the chancellor cites as the basis for his actions?
In his – publicly distributed – letter, Olaf Scholz explicitly refers to paragraph 1 of the Federal Government’s rules of procedure. It says: “The Federal Chancellor determines the guidelines for domestic and foreign policy.” These are binding for the Federal Ministers and they must implement them independently and under their own responsibility in their area of responsibility.
Article 65, sentence 1 of the Basic Law is again included with this passage. Here it says: “The Chancellor determines the guidelines of politics and is responsible for them.”
Was the Chancellor’s conduct constitutionally permissible?
Yes, says former constitutional judge Gertrude Lübbe-Wolff. “It is a constitutional truism that the Federal Chancellor’s authority to issue guidelines is not limited to completely abstract specifications,” Lübbe-Wolff told the Handelsblatt. The chancellor is not allowed to meddle in just any detail of the departments, but when it comes to matters of fundamental political importance, concrete decisions, right down to individual decisions, are permissible.
Opponents in the nuclear dispute: Finance Minister Lindner (left) and Economics Minister Habeck.
(Photo: Reuters)
Lübbe-Wolff explains: “It would be pointless if the chancellor were allowed to announce abstract guidelines, but were not authorized to ensure that his ministers adhere to them in their concrete decision-making practice.” The question of the temporary continued operation of nuclear power plants is in of such fundamental importance in the current energy crisis that the authority to set guidelines can be claimed for this. The constitutional lawyer Ulrich Battis told the Handelsblatt: “The current situation is almost a school case for the exercise of policy competence.”
In order to implement Scholz’s order, the nuclear phase-out law must now be changed – is that just a formality?
Scholz made the dispute over the lifetime of the last three German nuclear power plants binding for the federal government: “All members of the government are now bound by the instructions of the chancellor,” explains constitutional lawyer Battis. A minister who is instructed to draft a law – as happened in the specific case – must then implement it in his own department. “If you don’t want that, you have to resign,” Battis clarifies.
The dispute over the continued operation of the nuclear power plants during the crisis has occupied the traffic light for a long time.
(Photo: dpa)
But then there is the parliamentary level. “The Chancellor’s instructions do not apply here,” says the constitutional lawyer. “If the cabinet decision goes to the Bundestag, the members of parliament, including those from the government factions, are only bound by their conscience. Then the coalition question could arise again.”
Is the guideline issued by Olaf Scholz now permanently valid?
No, says state attorney Battis. The Chancellor’s current instruction provides for the continued operation of the three nuclear power plants until mid-April 2023. “Should the situation deteriorate dramatically in winter, this point could change again,” explains the lawyer. “The chancellor can adapt his policy competence to the respective situation.”
More: Stress test for the energy transition: Why the nuclear phase-out is no longer untouchable