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Inspired by another question:

According to European Parliament legislative resolution of 3 May 2022, Article 24.1:

  1. The office of Member of the European Parliament shall be incompatible with the following offices:

– member of a national or regional parliament or assembly vested with legislative powers,

In Germany, district councils (Kreistage) decide on the district's statute (Kreissatzung), they control the budget and set some taxes and fees, all of which I would consider legislative powers.

Yet, there are some German MEPs who are members of district councils:

There are probably more, these were just the first I found who mention their membership on the EP website.

There is also Rainer Wieland, one of the EP's vice presidents, who is a member of the assembly of the Stuttgart Region (link in German).

Is this an oversight or do Kreistage and Regionalversammlungen not meet the criteria set out in the resolution? If they do not meet the criteria, why don't they?

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    According to the German constitution the Kreistage have some devolved powers (article 28) but they are not considered legislative bodies, so the question does not come up. Feb 14, 2023 at 12:58
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    Urgh... another "inspired by" question. I have downvoted.
    – James K
    Feb 14, 2023 at 22:08

1 Answer 1

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As ccprog has detailed in a comment below, thanks to a ruling by the Constitutional Court, Kreistage are not considered to have legislative powers (Gesetzgebung), but rather the power to introduce statutes within the limits of the existing law. As a result, the incompatibility described in the resolution does not include membership of these bodies.

In any case, as I have just pointed out in my answer to the other question you refer to, the legislative resolution calls for an EU Council Regulation which has yet to be agreed upon, consented to in the European Parliament, unanimously adopted by the Council, and finally ratified by the EU Member States in accordance with their respective constitutional requirements.

As such, the rules you quote are not in force and there is currently no incompatibility between these offices under article 7 of the 1976 European Electoral Act, as amended in 2002.

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    In German understanding, communal elected bodies like Kreistag and Stadtverordnetenversammlung are not parliaments and have no legislative powers. They can decide on statutes (Satzungen), but cannot pass laws (in the formal sense). This is reserved for state and federal parliaments.
    – ccprog
    Feb 15, 2023 at 13:51
  • @ccprog I see, I suppose it would eventually depend on how the definition was interpreted. I'll rewrite to clarify.
    – CDJB
    Feb 15, 2023 at 13:56
  • Interpretation is quite simply literal: "legislative powers" means "power to pass a law". (German version of the resolution says "mit Gesetzgebungsbefugnissen")
    – ccprog
    Feb 15, 2023 at 13:59
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    ...Gesetzgebung is a fixed legal term that cannot include Satzungen. Those are defined by the constitutional court (ruling of 14. Juli 1959 – 2 BvF 1/58) as "nicht in dem von der Verfassung für die Gesetzgebung vorgeschriebenen Verfahren zustande [gekommen]" – not arrived at in the proceedings prescribed by the constitution for the passage of a law. The term including both laws and statutes would be "Rechtssetzung".
    – ccprog
    Feb 15, 2023 at 14:17
  • @ccprog Thank you for that context! Since ECJ and BVerfG are not always of the same opinion, I checked whether the EU also recognizes the difference between formal and material laws. The EU does have non-legislative acts, which seem pretty similar, so it looks like the distinction does exist and Kreistage are safe.
    – xyldke
    Feb 15, 2023 at 15:06

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