Legal experts question the appropriateness of swearing in new federal ministers only after the parliamentary summer recess. According to constitutional lawyer Stefan Pieper of the University of Münster, should a cabinet reshuffle take place during the pause, immediate swearing-in is only possible if the Bundestag convenes in a special session.
Pieper notes that existing legal commentary suggests that new ministers should not exercise their duties until they have been sworn in before parliament following the end of the summer break. While a scenario where ministers are initially only appointed by the Federal President but are sworn in before the Bundestag in September is described by Pieper as “not entirely unproblematic,” it raises significant legal questions.
Under the Basic Law, federal ministers are appointed by the Federal President upon the Chancellor’s recommendation. Pieper clarifies that both the appointment and dismissal of ministry candidates can naturally occur while a cabinet reshuffle is taking place, as the appointment itself is constitutive, officially commencing the role. However, Article 64, Paragraph 2, of the Basic Law mandates that federal ministers must take the official oath before the Bundestag upon assuming office. State practice dictates that the oath-taking should immediately follow the appointment.
The concern lies not in the validity of actions taken before the oath-since the oath itself holds no constitutive legal power, only the appointment does-but rather in the admissibility of the performance of the office. Pieper insists that acting in the capacity of a minister before taking the oath is considered unacceptable. The only exception to this rule is if a minister already sitting in the cabinet assumes a different department.
Pieper concludes that a temporary or custodial assumption of duties is not explicitly provided for in the Basic Law. However, he adds that mechanisms exist, such as appointing the previous incumbents to manage the departments’ administrative affairs, or utilizing mutual representation as permitted by the Rules of Procedure of the Federal Government.
