H e a d n o t e s

to the Order of the Second Senate of 27 April 2021

2 BvE 4/15

1. The Federal Government’s duty to notify Parliament comprehensively and as early as possible under Art. 23(2) second sentence of the Basic Law [on matters concerning the European Union] extends to initiatives and positions taken by the Federal Government. The negotiating position of a cabinet member can be attributed to the Federal Government if said member represents the Federal Republic of Germany at the European level and clearly acts as Germany’s representative.

2. Limitations to the duty to provide information arise from the principle of the separation of powers (Art. 20(2) second sentence of the Basic Law), which grants the Federal Government a core of autonomous executive decision-making that does not have to be laid open. Government action no longer falls within this core when and insofar as the Federal Government has reached interim results or developed a position, and uses this as a basis for its actions vis-à-vis external third parties. In such constellations, the Federal Government’s internal deliberation and decision-making process has in any case reached conclusion where the Government itself intends to go beyond the realm of internal coordination and to present its position – even if it is only preliminary – in negotiations with third parties.

FEDERAL CONSTITUTIONAL COURT

- 2 BvE 4/15 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the application to declare that

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Maidowski,

Langenfeld,

Wallrabenstein

held on 27 April 2021:

1. The respondent violated the German Bundestag ’s right under Article 23(2) second sentence of the Basic Law by failing to notify the Bundestag comprehensively and as early as possible of its negotiation strategy, prior to the Eurogroup meeting on 11 and 12 July 2015 and the Euro Summit on 12 and 13 July 2015, with regard to whether Greece should remain in or temporarily exit the euro area.

R e a s o n s:

A.

The applicant claims that the Federal Government failed to provide timely information to the German Bundestag on the Government’s negotiation strategy in July 2015 with regard to whether Greece should remain in or temporarily exit the euro area. By way of an application in Organstreit proceedings (dispute between constitutional organs), the applicant asserts a violation of parliamentary information rights under Art. 23(2) second sentence of the Basic Law (Grundgesetz – GG).

I.

With a view to overcoming the sovereign debt crisis, the finance ministers of the euro area (hereinafter: the Eurogroup) and other participants negotiated for a third aid programme for Greece at a meeting from 11 to 12 July 2015, preparing the summit of the euro area heads of state and government on the same topic (hereinafter: the Euro Summit) on 12 and 13 July 2015.

1. After the second aid package for Greece, which had entered into force in 2012, expired on 30 June 2015, there was fundamental disagreement between Greece and the other members of the euro area about the terms of a third aid programme.

From June 2015, the Federal Government repeatedly pointed out that its primary aim was to negotiate a solution allowing Greece to remain in the euro area, but that further financial aid could not be granted unconditionally. When providing information to the Bundestag ’s Budget Committee on 30 June 2015, the Federal Minister of Finance stated that Greece could not remain in the euro area without a reform programme; in extreme circumstances, Greece would have to be cut off from the European Central Bank’s payment system, in which case the need for a temporary parallel currency could arise.

On 5 July 2015, Greece held a referendum in which the Greek people rejected the reform, austerity and financing measures proposed by the institutions involved (European Central Bank <ECB>, European Commission and International Monetary Fund <IMF>).

[…]

According to the respondent’s submission, which was not disputed by the applicant, discussions were held on 9 July 2015 between the Federal Chancellor, the Deputy Chancellor (who also served as Minister of Economic Affairs at the time) and the Federal Minister of Finance following the Greek Prime Minister’s request for a new aid package on 8 July 2015. It was stated in these discussions that the Federal Republic of Germany remained committed to negotiating a solution with Greece and would make every effort to allow Greece to remain in the euro area. In preparation for a scenario in which no agreement could be reached, the discussions merely touched “as an aside” on the possibility of offering Greece a voluntary, temporary exit from the euro area as a back-up option to enable Greece to reduce its sovereign debt without being bound by the restrictive rules applicable within the euro area.

Late in the evening of 9 July 2015, Greece submitted its reform proposals, which were forwarded to the German Bundestag in the early morning of 10 July 2015.

2. To prepare for the negotiations of the Eurogroup and the Euro Summit scheduled for 11 to 13 July 2015, the Federal Ministry of Finance drew up a document in English on 10 July 2015 at approximately 2:00 p.m.

In this document, the reform proposals submitted by Greece on 9 July 2015 were objected to as insufficient. According to the Federal Ministry of Finance, the proposals lacked a number of important reform areas to modernise the country and to foster long-term economic growth and sustainable development. In particular, the Ministry considered the proposals on labour market reforms, reforms of the public sector, privatisations, the banking sector and structural reforms to be insufficient. That was why, in the Ministry’s view, these proposals could not form the basis for a new, three-year programme under the European Stability Mechanism (ESM), as requested by Greece. Rather, a better, sustainable solution keeping the IMF on board was needed. The Ministry stated that there were two avenues for this:

a) Either the Greek authorities would have to improve their proposals rapidly and significantly, with full backing from the Greek Parliament, which required, among other things, the transfer of Greek assets in the amount of EUR 50 billion to an external fund to be privatised over time and decrease debt. Moreover, the proposals would have to include capacity-building and depoliticising Greek administrative tasks under the auspices of the European Commission and automatic spending cuts in case of missed deficit targets. In parallel, a set of financing elements would be put together to bridge the time gap [until a new programme becomes effective]. This would mean that the existing risk of not concluding a new ESM programme should rest with Greece, not with the other euro area Member States.

b) Or, in the event that debt sustainability and a credible implementation perspective could not be ensured upfront, Greece should be offered swift negotiations on a time-out from the euro area with possible debt restructuring over the next five years. Only this way forward could allow for sufficient debt restructuring, which would not be compatible with membership in a monetary union. The time-out solution should be accompanied by supporting Greece with growth-enhancing, humanitarian and technical assistance. The time-out solution should also be accompanied by streamlining all pillars of the Economic and Monetary Union and concrete measures to strengthen the governance of the euro area.

3. From 9 to 11 July 2015, the Federal Government held extensive deliberations with the governments of the other euro area Member States. In this context, the Federal Minister of Finance raised the question of what options would remain in case the negotiations failed. According to then President of the Eurogroup Dijsselbloem, the Federal Ministry of Finance emailed the document of 10 July 2015 to his office that same evening around 6:00 p.m., and the email was also sent to a small group of top officials of the euro area and, among others, to then President of the European Commission Juncker, then President of the European Council Tusk and then President of the ECB Draghi ([…]).

At the Eurogroup meeting on 11 and 12 July 2015, the Federal Minister of Finance again raised the question of how to proceed in the event that the negotiations with the Greek government failed. He was in possession of the document of 10 July 2015 at that point. The representatives of other Member States made reference to and discussed the proposals and options outlined by the Federal Minister of Finance for the scenario of failed negotiations.

In the final document drawn up by the Eurogroup on 12 July 2015, a sentence was included in brackets at the very end, with the brackets indicating a lack of agreement; this sentence addresses a possible Greek time-out from the euro area with a wording that is very similar to the language used in the document drawn up by the Federal Ministry of Finance on 10 July 2015. Another sentence in the final document, also added in brackets, concerns the transfer of Greek assets and bears considerable linguistic and substantive resemblance to the corresponding sections in the Ministry’s document of 10 July 2015. The final document of the Eurogroup meeting, including the additions in brackets, was shared with the participants of the subsequent Euro Summit, which took place immediately afterwards, and was taken into account in the deliberations there.

4. By 11 July 2015 at the latest, several media outlets had access to the document of 10 July 2015 prepared by the Federal Ministry. On that day, the German press reported on its contents and in particular on the option of a Greek exit from the euro area proposed in the document. Moreover, the original wording of the document was made available on the website of a news magazine. Subsequently, the option of a temporary or permanent exit of Greece continued to receive considerable media attention, with politicians from both Germany and abroad commenting on the matter.

5. The Federal Government, the respondent in the present proceedings, forwarded the document of 10 July 2015 to the German Bundestag on 12 July 2015 at approximately 4:00 p.m., following the meeting of the Eurogroup. […]

The Federal Government communicated the results of the Euro Summit of 12 and 13 July 2015 to the Bundestag on 14 and 16 July 2015. At this Euro Summit, the heads of state and government in principle agreed on negotiating a third aid package for Greece and on the reform programme necessary in this regard.

6. In a meeting of the Bundestag ’s Budget Committee on 16 July 2015, the Federal Minister of Finance stated that the substantive position he asserted at the Eurogroup meeting had been coordinated with the Federal Government. He pointed out that the Federal Ministry of Finance had worked relentlessly to make available all documents to the Bundestag as quickly as possible. The Federal Minister of Finance claimed that he had not “introduced” a paper to the Eurogroup, which is why the Ministry did not consider there to be any duty to inform Parliament in this regard. […]

7. Following these comments, a member of the applicant’s parliamentary group submitted a written question to the respondent regarding the specific circumstances under which the document of 10 July 2015 had been created and used. […]

Thereupon, the Federal Ministry of Finance stated in a letter dated 29 July 2015 that the document drawn up on 10 July 2015 had not been a proposal for the Eurogroup and that the document had not been submitted to the Eurogroup. […]

[…]

II.

The applicant objects to the failure on the part of the respondent to provide timely information to the German Bundestag on the Federal Government’s negotiation strategy prior to the Eurogroup meeting on 11 and 12 July 2015 and the Euro Summit on 12 and 13 July 2015. The applicant claims that this failure had adversely affected the Bundestag ability to exercise its participation rights in informed manner.

[…]

III.

The respondent asserts that the application is inadmissible […]; by way of subsidiary submission, the respondent asserts that the application is unfounded […].

[…]

IV.

[…]

V.

Both the applicant and the respondent waived their right to an oral hearing.

B.

The application is admissible.

I.

As a parliamentary group in the Bundestag , the applicant has legal ability to be a party to the proceedings (Art. 93(1) no. 1 GG, § 13 no. 5 and § 63 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG), and can assert rights of the Bundestag in Organstreit proceedings by way of vicarious standing (Prozessstandschaft ) (cf. Federal Constitutional Court, Order of the Second Senate of 2 March 2021 - 2 BvE 4/16 -, para. 56; Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 131, 152 <190>; 152, 8 <18 para. 25>; established case-law). The Federal Government is a constitutional organ of the Federation and can thus act as respondent in Organstreit proceedings.

II.

By asserting that the respondent failed to notify the applicant, before the start of the Eurogroup meeting, of its negotiating position with regard to whether Greece should remain in or temporarily exit the euro area, the applicant raises a challenge that is admissible in Organstreit proceedings (§ 64(1) BVerfGG).

The applicant has standing to bring this challenge (§ 64(1) BVerfGG), and sufficiently substantiated the asserted violation in its application as required by § 64(2) BVerfGG. Based on the facts submitted by the applicant, it cannot be ruled out from the outset that the delayed and insufficient provision of information by the Federal Government violates the Bundestag ’s right to be notified comprehensively and as early as possible (Art. 23(2) second sentence GG), as asserted by the applicant.

[…]

III.

The applicant has the necessary legal interest in bringing Organstreit proceedings. Specifically, the applicant continues to have a legal interest in the declaration sought even though the respondent has since shared the document of 10 July 2015 with the German Bundestag on 12 July 2015 at approximately 4:00 p.m., following the meeting of the Eurogroup.

In principle, a recognised legal interest in bringing Organstreit proceedings does not cease merely because the challenged rights violation is in the past and has already been concluded (cf. BVerfGE 121, 135 <152>; 131, 152 <193>; 148, 11 <22 para. 35>).

Even if a special interest in the continuation of proceedings seeking a declaratory finding in relation to the asserted rights violation were required in such cases, this requirement would be met in the present case: the applicant has an objective interest in clarification [of the applicable constitutional rights and duties] given the risk that the challenged violation could be repeated (cf. BVerfGE 119, 302 <308 f.>; 121, 135 <152>; 131, 152 <193 f.>; 137, 185 <230 para. 127>; 147, 50 <124 para. 187>; 148, 11 <22 para. 35>). The parties to the proceedings disagree on whether the Bundestag ’s information rights under Art. 23(2) second sentence GG have been violated […]. The respondent maintains its view, as asserted prior to the proceedings, that it was under no obligation to notify the Bundestag of the information in question given that quick action had to be taken under considerable time constraints, that legally speaking the document of 10 July 2015 had been categorised as an internal working paper of the Federal Ministry of Finance, and that no final and joint negotiating position had been agreed on [within the Federal Government] at the time. Accordingly, when the Federal Government subsequently notified the Bundestag by forwarding the document, it did so without recognising a legal duty to do so.

[…]

The applicant has a considerable interest in determining whether it is indeed permissible for the respondent, in such cases, to notify the Bundestag only after the fact, and whether it is true that the Bundestag has no choice but to accept the Government’s actions in this regard, and in particular does not have a legal claim to even such ex post notification. […]

C.

The application is well-founded. Art. 23(2) second sentence GG lays down the Federal Government’s duty to provide information to the Bundestag (see I. below). Contrary to these standards, the respondent did not notify the Bundestag comprehensively and as early as possible – which in the present case would have meant before the Eurogroup meeting began on 11 July 2015 – of its negotiating position at said meeting and the subsequent Euro Summit with regard to whether Greece should remain in or temporarily exit the euro area, and in particular of options the Federal Government introduced into the negotiations; the respondent thus violated its duty to provide information (see II. below).

I.

According to Art. 23(2) first sentence GG, the Bundestag and, through the Bundesrat , the Länder participate in matters concerning the European Union. Art. 23(2) second sentence GG requires that the Federal Government notify the Bundestag and the Bundesrat of such matters comprehensively and as early as possible.

1. Art. 23 GG specifies how the tension between external representation by the executive government and parliamentary responsibility is to be resolved, granting far-reaching participation rights to the Bundestag in relation to matters concerning the European Union, in response to the shift of powers to the executive in the context of European integration (cf. BVerfGE 131, 152 <196>).

In enacting Art. 23 GG, the Constitution-amending legislator responded to shifts in the national balance of powers arising from European integration. As a result of the transfer of sovereign powers to the European Union (Art. 23(1) GG), the European Union has the competence to make law that is directly applicable and in many cases creates rights and duties for Member State citizens. The Member States mostly participate in the decision-making processes on EU law via the European Council and the Council of the European Union, which means that the executive governments and not the national legislative bodies are the primary actors. This poses particular challenges for parliamentary democracy at the national level because Parliament is in part deprived of its role as the central decision-making body. This loss of parliamentary competences in relation to the respective national government can be mitigated by ensuring a closer involvement of national parliaments in the process of European integration (cf. BVerfGE 131, 152 <197 with further references>; cf. also Federal Constitutional Court, Judgment of the Second Senate of 2 March 2021 - 2 BvE 4/16 -, para. 76 ff.).

2. The first sentence of Art. 23(2) GG provides for parliamentary participation rights in relation to ‘matters concerning the European Union’, thereby also determining the subject matters in respect of which the Government is obliged to provide information pursuant to the second sentence of Art. 23(2) GG. In this context, the term ‘matters concerning the European Union’ must be interpreted broadly (cf. BVerfGE 131, 152 <199 ff.>; 153, 74 <145 para. 122>). Such matters include treaty changes and corresponding changes in primary law and other legislative acts, as well as international treaties that supplement or are otherwise closely tied to EU law (cf. BVerfGE 131, 152 <199 ff., 215>; 153, 74 <146 f. para. 124 f.>).

3. Pursuant to Art. 23(2) second sentence GG, the Federal Government must notify the Bundestag “comprehensively”.

In its second sentence, Art. 23(1) GG refers to the right of the Bundestag to participate in matters concerning the European Union enshrined in the first sentence of that provision (cf. BVerfGE 131, 152 <202>). Notification primarily serves to provide the Bundestag the opportunity to influence the Federal Government’s decision-making processes in a timely and effective manner. The Bundestag is only capable of accompanying and influencing the European integration process, including by debating the advantages and disadvantages of a matter and by preparing statements of position, if it has sufficient information as the basis for its decisions (cf. BVerfGE 131, 152 <202 f.>). Mandatory notification also serves to offset information asymmetries between the Federal Government and the Bundestag , insofar as this is necessary to ensure that the Bundestag can effectively exercise its rights and participation mandate. A narrow interpretation of the provision would undermine this purpose (cf. BVerfGE 131, 152 <203 f.>).

a) The principle of democracy enshrined in Art. 20(1) and (2) GG also requires that the Bundestag can obtain the information it needs to assess the essential foundations and consequences of its decisions. The core of the Bundestag ’s information right is therefore guaranteed in Art. 79(3) GG (cf. BVerfGE 132, 195 <241 f. para. 111>; cf. also BVerfGE 131, 152 <204 f.>). The interpretation and application of Art. 23(2) GG must reflect the fact that the provision also serves to give effect to the principle that parliamentary processes are open to the public (principle of parliamentary publicity), which forms part of the principle of democracy (cf. BVerfGE 131, 152 <204>). Decisions that have considerable legal and factual implications for future legislative latitude must generally be preceded by a procedure that allows the public to form and express opinions and that requires Parliament to hold a public debate on the necessity and scope of the envisaged measures (cf. BVerfGE 85, 386 <403 f. para. 267 f.>; 95, 267 <307 f.>; 108, 282 <312>; 131, 152 <205>). Accordingly, even where sovereign powers have been transferred to an intergovernmental system, the Bundestag must retain its overall budgetary responsibility in keeping with these principles (cf. BVerfGE 131, 152 <205>; 135, 317 <402 f. para. 166>). In this respect, comprehensive notification of the Bundestag in matters concerning the European Union is a necessary precondition for ensuring that the Bundestag acts on a sound basis when engaging in public debate and decision-making processes.

The legislative history of Art. 23(2) GG likewise shows that the Constitution-amending legislator deliberately opted to impose [on the Federal Government] far-reaching duties to provide information (cf. BVerfGE 131, 152 <203 f.>). Accordingly, Bundestag and Bundesrat are to be notified of all matters concerning the European Union that “might be of interest to them” (BTDrucks 12/6000, p. 21).

b) To give effect to the Bundestag ’s participation rights, the Government’s duty to notify the Bundestag intensifies the more complex a matter is, the more it affects the sphere of parliamentary responsibility, and the closer a matter comes to reaching a formal decision or agreement (cf. BVerfGE 131, 152 <207>). Where agreements and mechanisms that significantly affect the Bundestag ’s competences, and in particular its overall budgetary responsibility, are concerned, the Federal Government’s duty to notify the Bundestag entails an obligation to provide complete and detailed information ([…]). In this respect, information must be provided in such a way that the Bundestag ’s role is not reduced to merely rubber stamping the Government’s actions after the fact (cf. BVerfGE 131, 152 <202 f. with further references>; cf. also BVerfGE 123, 267 <420>; 132, 195 <242 para. 111>).

In substantive terms, the duty to notify the Bundestag comprehensively encompasses information on initiatives and positions adopted by the Federal Government (cf. BVerfGE 131, 152 <207>). Moreover, this duty extends, but is not limited, to sharing official documents received from institutions, bodies, offices and agencies of the European Union, and from other Member States, relating to matters concerning the European Union. As soon and insofar as the Federal Government itself is engaged in a particular matter, its duty to notify the Bundestag may extend to other information available to the Government, including information on informal activities or information not (yet) documented in writing (cf. BVerfGE 131, 152 <207>).

Especially when it comes to matters of particular significance, a one-off notification is not sufficient for the Federal Government to discharge its duty. Rather, the duty to notify the Bundestag is designed as a permanent and ongoing obligation to provide information, requiring an update each time new political or legal questions arise in the handling of a matter on which the Bundestag has not yet formed an opinion (cf. BVerfGE 131, 152 <209 with further references>). The duty to provide comprehensive notification and to offset information imbalances is therefore to be understood as dynamic rather than static. This duty intensifies the more complex and significant the matter in question is and the closer it comes to reaching a formal decision or agreement (cf. BVerfGE 131, 152 <209 f.>). The Federal Government must update the information provided whenever new developments arise or the Government changes its view on a relevant point ([…]).

Moreover, the Federal Government is obliged to share not only information on legislative acts of [EU law] in respect of which deliberations have already been completed in the relevant EU bodies, let alone only information on legislative acts that have already been adopted with the participation of the Federal Government as well as relevant documents relating thereto. Rather, the Federal Government must also share interim results and preliminary texts available to it. The fact that drafts may be subject to amendments, meaning that such information could quickly become outdated and that further updates become necessary, does not justify postponing written notification to a time when results have already been finalised (cf. BVerfGE 131, 152 <222>).

a) The potentially confidential nature of the information in question cannot generally be invoked as grounds for refraining from sharing information with the Bundestag .

Depending on the circumstances of the individual case, a need for confidentiality may arise in particular where the required notification relates to initiatives and positions developed by the Federal Government. In enacting Art. 23(2) second sentence GG, the Constitution-amending legislator has afforded the Bundestag far-reaching information rights. Particularly where the Federal Government develops initiatives that concern other Member States or EU institutions, premature disclosure of the Federal Government’s position to the public may, in certain constellations, significantly weaken the Government’s negotiating position within the EU. If other participants in the negotiations were aware of the Federal Government’s position, but the Federal Government had no knowledge of the initiatives and negotiating positions of the other parties to the negotiations, this could put the latter at an advantage. In a given case, this could adversely affect the Federal Government’s bargaining power and thus the interests of the Federal Republic of Germany.

In such cases where interests of the state (Staatswohl ) could be jeopardised by the disclosure of confidential information, notification of the Bundestag can be carried out in a manner that protects the confidentiality of the information provided (cf. BVerfGE 131, 152 <208>). […]

The Bundestag has created the necessary conditions to ensure protection of confidentiality by enacting its Rules on Document Security (Geheimschutzordnung ), which form part of the Bundestag Rules of Procedure (Rule 17 of the Bundestag Rules of Procedure, Geschäftsordnung des Deutschen Bundestages – GO-BT) and set out detailed directions for the protection of official secrets by the Bundestag when conducting parliamentary business (cf. BVerfGE 67, 100 <135>; 77, 1 <48>; 130, 318 <362>; 131, 152 <208>; 137, 185 <240 para. 149>; cf. also BTDrucks 17/12816, p. 12). Each member of the Bundestag must observe the Rules on Document Security and breaches are punishable by the penal sanctions set out in § 353b(2) no. 1 of the Criminal Code (Strafgesetzbuch – StGB) (cf. BVerfGE 137, 185 <240 para. 149>). Moreover, the detailed directions set out in Rule 69(7) GO-BT in conjunction with Rule 7 of the Rules on Document Security ensure confidential treatment of material given the security classification CONFIDENTIAL or higher, including on the Committee on European Union Affairs.

These rules protecting the security of information reflect the fact that Parliament cannot exercise its legislative and budgetary powers, nor its parliamentary oversight powers vis-à-vis the Federal Government, if it does not partake in the Government’s secret knowledge (cf. BVerfGE 67, 100 <135>; 137, 185 <240 f. para. 149>). The information and participation rights under Art. 23(2) GG would be undermined in many constellations if the Federal Government could generally invoke the need for protecting confidentiality in respect of processes that unfold at the European level. Moreover, it must be taken into account that within the parliamentary system of government under the Basic Law, the Federal Government is not the sole guardian of state interests; rather, the Bundestag and the Federal Government are jointly entrusted with safeguarding the legitimate interests of the state (cf. BVerfGE 67, 100 <136>; 124, 78 <124>; 137, 185 <241 para 149>). In addition, keeping information secret from Parliament limits parliamentary oversight and may thus impair or disrupt the necessary link of democratic legitimation (cf. BVerfGE 147, 50 <128 para. 199 with further references>). Thus, the Federal Government cannot generally invoke the need for absolute confidentiality vis-à-vis the Bundestag if effective safeguards for preventing the disclosure of official secrets have been put in place on both sides (cf. BVerfGE 67, 100 <136>; 137, 185 <241 para. 149>).

In principle, notification pursuant to Art. 23(2) second sentence GG must be provided to the entire Bundestag , i.e. all its members (cf. BVerfGE 131, 152 <213>). By contrast, restricting the number of persons with whom information is shared, on the grounds of having to maintain absolute confidentiality, to the members of a special body established by the Bundestag can only be justified in rare cases, requiring the existence of an extraordinary need for information security (cf. BVerfGE 130, 318 <359, 362 f.>; 137, 185 <242 f. para. 152>; 147, 50 <130 f. para. 205>; […]). In this determination, the specific circumstances of the individual case must be taken into account (cf. BVerfGE 130, 318 <363 f.>).

b) The Federal Government’s duty to notify the Bundestag is subject to limitations that arise from the principle of the separation of powers (Art. 20(2) second sentence GG). The institutional structure established by the Basic Law rests on the presumption that there is a core in which the Government carries responsibility for autonomous executive decision-making, encompassing a sphere in which the Government is free to initiate, deliberate and take action – this sphere in principle does not have to be laid open. In any case, this core includes internal governmental opinion-forming, both with regard to deliberations within the cabinet and the preparation of cabinet and ministerial decisions, which primarily takes place in intra- and inter-ministerial coordination processes (cf. BVerfGE 67, 100 <139>; 110, 199 <214, 222>; 124, 78 <120>; 131, 152 <206>; 147, 50 <138 f. para. 229>). Thus, as long as the Federal Government’s internal deliberation and decision-making processes have not reached conclusion, Parliament is not entitled to be notified of the relevant information (cf. BVerfGE 131, 152 <206>).

When the Federal Government develops initiatives or adopts a position in respect of projects initiated by third parties in matters concerning the European Union, this is preceded by an opinion-forming process that – depending on the matter in question – can be quite extensive, and in some cases a specific view eventually adopted by the Government may only gradually emerge. Until then, this process is informed by different interests, considerations and developments relating to domestic and foreign policy but also stemming from internal executive structures. At this stage, the process is still volatile and remains within the Federal Government’s inner sphere; consequently, it is in principle not yet constitutionally required to provide information to the Bundestag at this stage (cf. BVerfGE 131, 152 <210>; 137, 185 <235 para. 136>; 147, 50 <139 para. 229>). However, when the Government’s own opinion-forming has taken such specific shape that the Government is ready to share interim or partial results with the public or intends to present its position in negotiations with third parties, its agenda no longer falls within the core of autonomous executive decision-making that is beyond the reach of the Bundestag (cf. BVerfGE 131, 152 <210>). Therefore, this core is no longer affected when and insofar as the Federal Government has reached interim results or developed positions, and uses these as a basis for its external actions. In these cases, Art. 23(2) second sentence GG requires that the Federal Government provide substantive information about its plans to the Bundestag (cf. BVerfGE 131, 152 <210>).

The Federal Government is not exempt from its duty to provide information to the Bundestag on the grounds that it does not yet have a final position on the contents of an intended proposal. In such cases, the duty to provide information relates to the Federal Government’s intention of initiating a process to develop such a proposal. The Federal Government’s internal deliberation and decision-making process has reached conclusion at least where the Government intends to go beyond the realm of internal coordination and to present its position – even if it is only preliminary – in negotiations with third parties (cf. BVerfGE 131, 152 <227>).

4. The duty to provide information is subject to strict rules on timing. The aim of Art. 23(2) GG is to give the Bundestag sufficient time to decide if and, as the case may be, how it wishes to participate in national decision-making (cf. BVerfGE 131, 152 <201 with further references>; cf. also BTDrucks 12/3896, p. 23 f.). The Constitution-amending legislator deliberately opted for the strict requirement that information be provided “as early as possible”, rather than merely “in due time” or “regularly” (cf. BVerfGE 131, 152 <211>). This was intended to prevent a situation where the Bundestag is presented with a fait accompli and has no choice but to accept decisions that have already been taken ([…]). Therefore, the timing of the notification is as significant as the scope of the information provided. The Bundestag can only influence decision-making in matters concerning the European Union, which generally involves multiple actors, if it has early knowledge of relevant proposals (cf. BVerfGE 131, 152 <212>). It must thus be ensured, for instance, that the Bundestag can influence the decision-making process by adopting its own position before other bodies such as the Eurogroup make final decisions on questions like the terms of aid programmes ([…]). In such cases, providing information to the Bundestag as early as possible, as required by Art. 23(2) second sentence GG, is a prerequisite for the Bundestag ’s ability to exercise its participation rights under Art. 23(3) GG.

The Bundestag must receive the Federal Government’s information at the latest at a time that allows the Bundestag to properly address the matter in question and to work on adopting a position before the Federal Government issues binding declarations with external effect, in particular binding declarations on EU legislative acts and intergovernmental agreements. This precludes the Federal Government from launching specific initiatives or participating in decision-making without prior involvement of the Bundestag , and requires that all documents be shared with the Bundestag as soon as they are addressed in negotiations (cf. BVerfGE 131, 152 <212>).

Therefore, official documents, reports and communications as well as any unofficial information must be shared with the Bundestag as soon as they enter the Federal Government’s sphere of influence. The Bundestag must be notified in advance, and in sufficient time, of meetings of EU institutions and informal deliberations in which the Federal Government participates – even if there is no formal proposal or other basis for deliberation yet – so that the Bundestag can form its own opinion on the subject matter of said meetings and influence the Federal Government’s negotiation strategy and voting behaviour. In this respect, the Federal Government has no discretion as to the timing of notification (cf. BVerfGE 131, 152 <212 f. with further references>).

Providing written or oral information after the fact, in particular by subsequently forwarding documents that have already been the subject of deliberations in the Eurogroup or other EU bodies, does not remedy the violation of the duty to notify the Bundestag of relevant information (cf. BVerfGE 131, 152 <222>).

5. Finally, procedural requirements and requirements regarding the form of notification follow from the purpose underpinning the duty to notify the Bundestag under Art. 23(2) second sentence GG.

In principle, the purpose of Art. 23(2) second sentence GG requires that the Federal Government provide the notification in writing. […]

Exceptions to the rule of written notification are only permissible, but under certain circumstances also necessary, within narrow limits, in particular to give effect to the requirement that notification be carried out as early as possible. […]

II.

Based on these standards, the application is well-founded. The Federal Government (the respondent) violated the Bundestag ’s information rights under Art. 23(2) second sentence GG by failing to notify the Bundestag, as early as possible and prior to the Eurogroup meeting on 11 and 12 July 2015, of its negotiation strategy at the Eurogroup meeting and at the Euro Summit on 12 and 13 July 2015, with regard to whether Greece should remain in or temporarily exit the euro area.

1. The negotiations of the euro area Member States, the EU institutions and other actors regarding the granting of financial aid to Greece through an expansion of the European Stability Mechanism that were underway in July 2015 constituted ‘a matter concerning the European Union’ within the meaning of Art. 23(2) GG, giving rise to participation and information rights on the part of the Bundestag (cf. BVerfGE 131, 152 <215 ff.>; 135, 317 <428 para. 232>; 153, 74 <145 f. para. 123>).

2. The Federal Government’s negotiating position, including its proposed solutions, were subject to the duty to notify the Bundestag of relevant information arising from Art. 23(2) GG. The Bundestag was therefore entitled to be notified of the Government’s position prior to the meeting of the Eurogroup and the Euro Summit.

a) The negotiations concerned tens of billions of euros in additional financial aid to be granted to Greece under the European Stability Mechanism, and thus had a direct effect on the Bundestag ’s budgetary powers and its overall budgetary responsibility, which are indispensable elements of the constitutional principle of democracy (cf. BVerfGE 131, 152 <202>; 154, 17 <87 para. 104>). This matter is highly complex and significant in factual, legal and political terms. The same applies to the option, put forward for discussion, of a temporary Greek exit from the euro area, given that this scenario, too, would have very significant effects on European integration and the federal budget. The negotiations on a third aid package for Greece had entered a crucial stage, and it was expected that key decisions would be made at the Euro Summit on 12 and 13 July 2015, which is exactly what happened as the participants reached a political agreement in principle [on granting further aid to Greece].

In light of the paramount significance and complexity of this matter, an especially close involvement of the Bundestag would have been required in order to ensure that the Bundestag could deliberate on the matter in question and reach its own conclusions as to the necessity and scope of the envisaged measures (cf. BVerfGE 131, 152 <220>). […]

b) The Federal Government’s plan and position prior to the Eurogroup meeting and the Euro Summit also included the contents of the document of 10 July 2015 [from the Federal Ministry of Finance], which is attributable to the respondent as part of its own negotiating position in respect of a third aid package for Greece (cf. BVerfGE 131, 152 <207>). The respondent cannot claim that this document merely concerned internal working considerations at the Federal Ministry of Finance […].

Firstly, such a claim would contradict the statements of the Federal Minister of Finance made at the meeting of the Budget Committee on 16 July 2015, in which he emphasised that his position at the Eurogroup meeting had been coordinated with the Federal Government. […]

Secondly, the negotiating position of the competent German Minister is generally attributable to the Federal Government in cases where said Minister enters a coordination process with third parties after a conclusion has been reached in their Ministry on the matter without involvement of the cabinet (cf. regarding the right to ask questions and receive information afforded members of Parliament BVerfGE 139, 194 <231 para. 119>). If no duty to provide information arose in cases where the competent Minister entered a coordination process with third parties, but subsequently stated that the cabinet had not been involved, this would render meaningless large parts of the Bundestag ’s information rights. […] Therefore, the negotiating position of a cabinet member must be attributable to the Federal Government if said member represents the Federal Republic of Germany in negotiations at the European level and clearly acts as Germany’s representative.

c) It is also irrelevant in what form and manner the Federal Government contributes a proposal on European matters. The only decisive aspect is whether it contains substantive ideas that are intended for a coordination process with third parties or for the public and the Government intends to proceed in that manner.

This was the case here. The Federal Government’s negotiating position did include the options documented in the paper of 10 July 2015; the paper was already intended for coordination with third parties at the time it was drawn up and constituted a written record of a plan and position endorsed by the Federal Government that would have required it to notify the Bundestag . According to the respondent’s submission, the document laid out points of reference for the German delegation and was available to them during the meeting of the Eurogroup as a working document and ‘speaking note’. Thus, the contents of the document outlined the Federal Government’s negotiating position and possible courses of action from the Federal Government’s perspective in relation to third parties at that time ; these contents were communicated to external parties and brought to the attention of the other participants in the negotiations. That the document was intended for coordination with third parties is also evident from the facts that it was written in English and that some of the sentences from the document, in slightly modified form, found their way into the official final document of the Eurogroup meeting.

In this respect, it is decisive that the contents of the document of 10 July 2015 were meant to serve a coordination process with third parties and that the German delegation did make use of the document by referencing its contents and using it as a speaking note. By contrast, it is irrelevant whether the document itself was discussed during the negotiations or made available to other participants, for example as a handout. Moreover, according to the account of the then President of the Eurogroup, which was not contested by the respondent, the Federal Ministry of Finance emailed the document of 10 July 2015 to him, other leaders and a small group of top officials of the euro area that same evening. This amounts to initiating a coordination process at the European level, which would have required the Federal Government to provide substantive information to the Bundestag .

As the Federal Government would also have had to notify the Bundestag of its negotiating position regardless of whether this position was put in writing prior to the meeting, it is ultimately irrelevant when and how exactly the document of 10 July 2015 was distributed to third parties. However, where the Federal Government itself has in fact drawn up written documents on one of its initiatives, as in the present case, the information rights arising from Art. 23(2) second sentence GG do require that these documents be shared with the Bundestag .

d) The Federal Government’s submission, according to which its negotiating position had not yet definitively been finalised and thus remained “volatile”, does not lead to a different conclusion.

When the Federal Government puts forward new options and proposed solutions for discussion with its European partners regarding a very significant matter, this decision vis-à-vis external parties also gives rise to a duty to notify the Bundestag of the relevant information under Art. 23(2) second sentence GG. Insofar as the Federal Government has made the decision to adopt a negotiating position in coordination processes or negotiations relating to matters concerning the European Union – in the present case by introducing new courses of action in the event that the negotiation of a solution with Greece fails –, the Government no longer operates within the core of autonomous executive decision-making. It is inherent in the dynamics of such complex and lengthy negotiations at the European level that the Government’s own negotiating position is not necessarily to be regarded as definitively fixed or final; rather, it is to be expected that the Government will regularly adapt and adjust its position in the course of the negotiations in response to points of view emerging from the other participants and in light of ensuing discussions, as well as in consideration of the factual developments. If the Bundestag were only notified once final positions or results had been reached, it would not be able to influence the negotiations in any substantial manner during the crucial stages, i.e. when the outcome is still open; the Bundestag would then be reduced to merely rubber stamping the Government’s actions after the fact (cf. BVerfGE 131, 152 <222 f.>). This is precisely what Art. 23(2) second sentence GG serves to prevent. Therefore, the Federal Government must also notify the Bundestag of its own interim positions, interim results and proposals developed in a coordination process with third parties, even if this information is expected to be “outdated soon” (cf. BVerfGE 131, 152 <222>).

In the present case, it was clear by 2:00 pm on 10 July 2015 at the latest that the Federal Government would present the contents of the document of 10 July 2015 to its European negotiating partners in the Eurogroup. This also included broaching the option of a temporary exit of Greece from the euro area. Therefore, the Federal Government would have been required to communicate to the Bundestag its intent to launch a discussion at the European level on the options set out in the document of 10 July 2015. In this respect, it is irrelevant whether this position of the Federal Government was final and whether the Federal Government – as it claims – continued to work towards a mutually acceptable solution.

e) Notification of the Bundestag in the present case could also not be refrained from on the grounds of any extraordinary need for confidentiality. […]

f) The other information provided by the Federal Government was not sufficient to fulfil its duty to notify the Bundestag .

[…]

According to Art. 23(2) first sentence GG, the Bundestag must be notified “comprehensively” of matters concerning the European Union. In this regard, information on especially significant negotiations at the European level must be provided in full and in a detailed manner. Where a matter falls within the scope of the Federal Government’s duty to notify the Bundestag , the Government has no discretion as to what documents and information to share with the Bundestag . Rather, in such cases, the information provided must include, without reservation, documents concerning the Federal Government’s negotiating position vis-à-vis external parties, which must be forwarded to the Bundestag (cf. BVerfGE 131, 152 <220>). By contrast, it would not suffice to merely share cursory information, on key points only, if the matter in question is clearly significant and gives rise to a strong parliamentary interest in receiving information. In this respect, it is for the Bundestag to decide how it assesses the documents and information provided and on what basis it conducts its own appraisal of the situation. […]

Moreover, in the present case, the Bundestag did not already have knowledge of the Federal Government’s negotiating position, and in particular the option of a temporary Greek exit from the euro area, from other sources. […]

3. In accordance with Art. 23(2) second sentence GG, the information on the Federal Government’s negotiating position would have had to be shared with the Bundestag at the earliest possible moment, and thus much earlier than 4:00 pm on 12 July 2015.

a) The Federal Government has no discretion with regard to the timing of such information sharing (cf. BVerfGE 131, 152 <212>). A duty to provide information arises as soon as it is certain that a proposal or an initiative by the Federal Government is to be addressed in negotiations at the European level, and will thus be communicated to external parties (cf. BVerfGE 131, 152 <226>). The Bundestag must be notified before the Federal Government launches specific initiatives or participates in decision-making vis-à-vis external parties.

As soon as the Federal Minister of Finance, acting on behalf of the Federal Government, had decided which proposals he wanted to put forward in the negotiations of the Eurogroup, the Federal Government was obliged to provide this information to the Bundestag . This was at 2:00 p.m. on 10 July 2015 at the latest, when the document in question had been drawn up. At that point, it was already clear that its purpose was to be presented as the German delegation’s negotiating position at the upcoming Eurogroup meeting. Therefore, the Federal Government would have had to notify the Bundestag of its position at the latest when the document of 10 July 2015 had been drawn up, and thus before it was shared with third parties and before the start of the Eurogroup meeting and the Euro Summit.

b) The Federal Government was also not entitled to refuse to provide information concerning the Federal Government’s negotiating position at the upcoming Eurogroup meeting and Euro Summit on the grounds that there was not enough time for the Bundestag to adopt a position. Whether and how the Bundestag reacts to information provided to it at short notice in cases of urgency and whether it adopts a position on such matters falls within the Bundestag ’s margin of assessment and manoeuvre. In this respect, too, the Federal Government does not have discretion.

c) The subsequent provision of the information in question, once the Eurogroup meeting was concluded and following the start of the Euro Summit, has no bearing on the violation of Art. 23(2) second sentence GG (cf. BVerfGE 131, 152 <222>). This provision is designed precisely to prevent a situation where the Bundestag is reduced to merely rubber stamping decisions made at the European level. Therefore, the fact that the respondent shared the document of 10 July 2015 on Sunday, 12 July 2015 at approximately 4:00 p.m., and thus subsequently notified the Bundestag of its initiative and negotiating position, cannot remedy the violation of the duty to inform.