Definition and Legal Classification of the Coalition Agreement
Der Coalition Agreement is a central element of parliamentary democracy in Germany, Austria, and comparable countries. It is a written agreement between at least two political parties intending to form a government together. The aim of the coalition agreement is to set out shared political objectives, allocate ministries, and establish decision-making mechanisms and consensus-building procedures throughout the legislative period. Legally, the coalition agreement is a contract of its own kind, whose binding effect and legal character are to be considered with nuance.
Conceptual Distinction and Formation
The coalition agreement differs from other political arrangements, such as electoral alliances, in its specific design: It typically arises after exploratory and coalition negotiations and culminates in a detailed written statement of joint political projects. The negotiation and signing process can take several weeks to months and is not subject to any binding statutory formal requirements.
Legal Character and Classification
Civil Law Classification
Legally, the coalition agreement is primarily a political consensus. Although the agreement could be concluded according to the general rules of contract law (§§ 145 ff. BGB), the parties usually lack the intention to be bound by enforceable obligations. Therefore, the coalition agreement is commonly regarded as a so-called “political agreement,” which does not create immediate civil law obligations between the parties and is thus not enforceable before ordinary courts.
Binding Effect and Sanctions
The parties to a coalition agreement are primarily politically, but not legally, obligated to implement the agreements in detail. Legal sanctions in the event of non-compliance are not provided for and, as a rule, occur at the political level, such as coalition breakdown, votes of no confidence, or the premature termination of cooperation.
Constitutional Aspects
Relationship to Basic Law and Constitution
In Germany, coalition agreements are neither explicitly regulated by the Basic Law nor by state constitutions. The freedom of coalition under Art. 21 GG protects the formation and activities of political parties, but not explicitly the conclusion of coalition agreements. Nevertheless, such agreements represent an expression of free political will formation (Art. 21 GG) and fit into the constitutional structure of the parliamentary system of government.
Impact on Government Formation
In the context of government formation, the coalition agreement has significant practical importance. It serves as the basis for cooperation between parliamentary groups and for determining the allocation of cabinet posts. Nevertheless, it has no constitutional binding effect for parliament or the federal government, whose members are bound solely by the Basic Law and their oath of office.
Intra-Party and Organizational Implementation
Approval by Party Committees
The final conclusion of a coalition agreement usually takes place only after approval by the relevant party bodies, such as party conferences or member polls. The respective party statutes determine which committees are responsible and how members are involved in the decision-making process.
Implementation and Oversight
During the legislative period, coalition committees serve as bodies to monitor the implementation of the agreement and to resolve conflicts. Again, there is no legal, but rather a party-political, obligation, oriented towards consensus.
Distinction from Other Types of Contracts
The coalition agreement is classified as a “contract sui generis.” It is not a legal source in the strict sense—such as laws or international treaties—but rather a political-programmatic framework. There is no legally enforceable entitlement to its implementation, neither for the parties themselves nor for third parties.
Content Priorities and Typical Provisions
Programmatic Agreements
The focus is on political guidelines, planned legislative initiatives, joint positions on key social, economic, and foreign policy issues, as well as concrete measures for the duration of the electoral period.
Allocation of Ministries and Decision-Making Mechanisms
The agreement regulates the division of ministries (portfolios) among the coalition partners, designates responsibilities, and regularly describes procedures for conflict resolution, such as the establishment of coalition committees.
Procedures in Case of Dissent and Adaptation
Coalition agreements often contain rules on dealing with disagreements during the term of office, for example, the convening of meetings in the coalition committee or the principle that legislative initiatives are only introduced by mutual agreement.
Significance for Legislation and Administration
Since the Basic Law does not obligate the federal government to implement coalition agreements, members of parliament retain the freedom to decide according to their conscience. Thus, the coalition agreement does not have the force of law or direct external effect; its significance lies in the political steering of government activities and administration.
Coalition Agreement in International Comparison
Comparable arrangements can also be found in other parliamentary democracies. The legal non-binding character and political obligation are typical for many European countries, although the respective procedures for negotiation and implementation may vary.
Conclusion
The coalition agreement is a central building block of parliamentary democracy, but it does not constitute an enforceable legal contract. Its legal peculiarity lies in the absence of immediate legal obligations, while its practical effect is based on the political steering of government and parliamentary group activities. The tension between political commitment and legal non-bindingness makes the coalition agreement a typical instrument of party cooperation within the parliamentary government system.
Further information on this topic can be found in the relevant commentaries on the Basic Law and in the political science literature on coalition formation and government practice in the parliamentary system.
Frequently Asked Questions
What is the legal binding effect of a coalition agreement?
A coalition agreement is, as a general rule, not legally binding. Legally, it is not a contract within the meaning of the German Civil Code (BGB), but rather a political declaration of intent by the participating parties. This means that no party can directly enforce claims or obligations arising from the coalition agreement before a court. It thus has no immediate legal effect, but serves as a political self-commitment by the coalition parties to structure their cooperation and joint government policy. Nevertheless, the coalition agreement has indirect legal relevance, as agreements recorded therein often provide the basis for subsequent legislative initiatives and government decisions, which are then subject to formal legislative procedures.
Is the coalition agreement legally binding on third parties, such as members of parliament or voters?
The coalition agreement applies exclusively among the parties involved in government and does not create any immediate legal effect for third parties. Neither individual members of parliament, regardless of their party affiliation, nor the electorate, can derive legally enforceable claims against the parties, the government, or individual cabinet members from it. Binding members of parliament to the coalition agreement is also excluded for constitutional reasons: According to Article 38 paragraph 1 sentence 2 of the Basic Law, members of parliament are only bound by their conscience (“free mandate”).
What role does the coalition agreement play in the legislative process?
The coalition agreement has no direct influence on the formal legislative process, as it does not have any legal binding effect and does not affect the course or requirements of the legislative process. Legislative initiatives must meet all constitutional and statutory requirements, irrespective of whether they are based on a coalition agreement. However, there is a de facto influence: The agreements set out in the contract often serve as guidelines for governmental action and as the basis for the content of legislative drafts that are subsequently submitted for parliamentary deliberation.
Can a coalition agreement be reviewed or challenged in court?
A judicial review or challenge of the coalition agreement is not possible. Since the agreement does not create civil or public law obligations in the classic sense, there is no basis for claims or lawsuits. Judicial scrutiny by the Federal Constitutional Court or administrative courts is also generally excluded—except if specific provisions of the agreement, in their implementation, violate existing law, particularly constitutional law. Only subsequent legislation or administrative practice based on coalition agreements may, if necessary, be subject to judicial review.
Is the coalition agreement subject to official publication or registration?
There is no statutory obligation to publish a coalition agreement. However, in political practice, coalition agreements are usually published in full to ensure transparency and inform the public. This publication, however, is voluntary and has no legal effect. Likewise, there is no obligation to deposit it with any authority or parliamentary institution; thus, the agreement remains an internal steering instrument of the parties or parliamentary groups involved.
What role does the Basic Law play in relation to the coalition agreement?
The Basic Law does not contain any explicit provisions regarding the coalition agreement. It merely regulates the framework of government formation and parliamentary activities, such as the free mandate of members of parliament (Art. 38 GG), the nomination process for the Federal Chancellor (Art. 63 GG), or the principle of departmental responsibility of the federal government (Art. 65 GG). The coalition agreement must not affect or override constitutional provisions; every measure stipulated in the coalition agreement must be carried out and implemented in accordance with the constitution. Provisions in the agreement that violate the constitution would be null and void and may not be implemented.
Is the coalition agreement subject to parliamentary control?
Although coalition agreements shape the government’s program and influence parliamentary practice, they are not subject to specific parliamentary control or approval. Parliamentary oversight takes place at the level of legislation and government action, not at the level of the agreement or interpretation of the coalition agreement itself. This means that parliament holds the government accountable for its actual policies and legislative proposals, not for compliance with individual coalition agreements.
