Headnotes

to the Order of the Second Senate of 22 July 2021

- 2 BvC 10/21 -

1. When dealing with complaint proceedings regarding non-recognition as a political party pursuant to Art. 93(1) no. 4c of the Basic Law, § 13 no. 3a and §§ 96a ff. of the Federal Constitutional Court Act, the Federal Constitutional Court does not ordinarily review the constitutionality of the statutory provisions upon which the Federal Electoral Committee based its decision not to recognise an association as a political party for Bundestag elections.

2. Affected associations are free to assert the unconstitutionality of statutory provisions that are relevant to their non-recognition in electoral scrutiny proceedings.

FEDERAL CONSTITUTIONAL COURT

- 2 BvC 10/21 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the complaint against non-recognition as a political party

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

Maidowski,

Langenfeld,

Wallrabenstein

held on 22 July 2021:

1. The complaint against non-recognition as a political party is rejected.

2. The application for preliminary injunction is procedurally impermissible.

R e a s o n s:

The decision, which, pursuant to § 96d first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), was initially communicated without reasons on 22 July 2021, rests on the reasons set out below pursuant to § 96d second sentence BVerfGG:

A.

In a submission dated 12 July 2021, the complainant challenged the decision of the Federal Electoral Committee (Bundeswahlausschuss ) of 9 July 2021 not to recognise the complainant as a political party for the upcoming Bundestag elections (§ 18(4) first sentence no. 2 of the Federal Elections Act, Bundeswahlgesetz – BWahlG). In the reasons for its decision, the Federal Electoral Committee had stated that the complainant had lost its legal status as a political party because, for each of the previous six years, it had either failed to submit financial reports or had submitted reports that were incomplete (§ 2(2) second sentence of the Political Parties Act, Parteiengesetz – PartG).

I.

1. In the six years prior to the notice of intended participation in the 2021 Bundestag elections, the complainant only provided the Bundestag with financial reports for 2019 and 2020. These reports had not been audited by an accountant or sworn auditor nor had they been certified in accordance with § 30(2) PartG.

2. […]

3. In its public sitting of 9 July 2021, the Federal Electoral Committee decided with one dissenting vote not to recognise the complainant as a political party. The Committee found that the complainant had lost its legal status as a political party. According to a communication by the Bundestag , the complainant had failed to submit financial reports that met the legal minimum standards (§ 2(2) second sentence PartG) and thus violated the financial accountability obligations under § 23 PartG. The financial reports for 2019 and 2020 had neither been audited by an accountant or sworn auditor nor had they been certified in accordance with § 30(2) PartG. § 23(2) fourth sentence PartG provides for an exemption under which non-audited financial reports can be submitted to the President of the Bundestag if a political party does not meet the requirements of § 18(4) first sentence, first half sentence PartG and its income or assets do not exceed EUR 5,000 for the financial year. In the present case, these prerequisites for an exemption [from the obligation to submit an audited and certified financial report] had not been met.

II.

On 12 July 2021, the complainant lodged a “constitutional complaint” challenging the decision of the Federal Electoral Committee of 9 July 2021 and filed an “application for a preliminary injunction”.

1. The complainant requested that § 23(2) fourth sentence PartG be declared void insofar as it provides that financial reports are to be certified by an auditor or an accounting firm [...] as soon as the political party’s income or assets exceed EUR 5,000 for the financial year. According to the complainant, the permissible and appropriate financial threshold from which political parties are required to provide certified financial reports should be determined by a discretionary decision of the Federal Constitutional Court, rather than by the challenged provision. The complainant seeks a preliminary injunction reversing the decision of the Federal Electoral Committee and recognising the complainant as a political party for the elections to the 20th German Bundestag .

2. In the reasons for its applications, the complainant submitted that the Federal Electoral Committee’s decision not to recognise the complainant as a political party violated Art 21(1) of the Basic Law (Grundgesetz – GG) and was entirely disproportionate when considering the rather irrelevant breach of the obligation to provide a certified financial report. […]

[…]

III.

The Federal Electoral Committee has been given the opportunity to submit a statement pursuant to § 96b BVerfGG.

[…]

IV.

[…]

B.

The complaint against non-recognition as a political party (Nichtanerkennungsbeschwerde ) is unfounded. Pursuant to Art. 93(1) no. 4c GG, § 13 no. 3a and § 96a BVerfGG, in complaint proceedings regarding non-recognition, the Court does not ordinarily review the constitutionality of the provisions of electoral and party law that are relevant to the challenged decision: in this case § 2(2) second sentence in conjunction with § 23(2) fourth sentence PartG (see I. below). None of the possible exceptions to this general rule are applicable in the present case (see II. below). The fact that the Court refrains in principle from conducting an “incidental” review of statutory provisions (inzidente Normenkontrolle) [in which a statutory provision’s constitutionality is reviewed not as the main subject matter but as an “incidental” question on account of the provision’s relevance to a challenged measure] does not create gaps in legal protection that are incompatible with Art. 19(4) GG (see III. below). Ultimately, the decision of the Federal Electoral Committee is unobjectionable in the complaint proceedings regarding non-recognition as a political party (see IV. below).

I.

When dealing with non-recognition complaints, the Federal Constitutional Court does not ordinarily review the constitutionality of the statutory provisions upon which the Federal Electoral Committee based its decision not to recognise a political party for Bundestag elections.

The procedure by which associations can challenge their non-recognition as a political party for Bundestag elections is set out in Art. 93(1) no. 4c GG, §§ 96a-d BVerfGG and § 18(4a) BWahlG. When interpreting these provisions according to their wording (see 1. below), systematic approach (see 2. below), legislative history (see 3. below) and spirit and purpose (see 4. below), it is clear that the scope of the Federal Constitutional Court’s review is limited to examining whether the relevant statutory provisions were properly applied by the Federal Electoral Committee (see 5. below).

1. The wording of Art. 93(1) no. 4c GG, §§ 96a-d BVerfGG and § 18(4a) BWahlG does not explicitly set out the scope of the Federal Constitutional Court’s review in complaint proceedings regarding the non-recognition of a political party.

a) It can only be inferred from Art. 93(1) no. 4c GG that the purpose of non-recognition complaints is to ensure the possibility of review of decisions taken by the Federal Electoral Committee ([...]) und thus the review of decisions regarding the prerequisites for submitting candidate nominations “as a political party” for a specific Bundestag election ([...]).

b) [...]

2. By contrast, systematic considerations suggest that, in non-recognition complaint proceedings, the scope of review generally does not extend to the constitutionality of the provisions of electoral and party law relevant to the challenged decision. The procedural rules themselves support this presumption (see (a) below). Further support for the presumption that non-recognition complaint proceedings are not designed to include an incidental review is found in the principle that legal protection in electoral matters is deferred until after the election (see (b) below).

a) aa) § 18(4a) second sentence BWahlG provides that in cases where an association has lodged a complaint against its non-recognition as a political party, it must be treated like a political party [until the Federal Constitutional Court has rendered a decision on the complaint]. Yet this provisional party status expires no later than the 59th day before the election. This suggests that the legislator assumes that the Federal Constitutional Court will have decided on the non-recognition complaint by this point as this is the only scenario ensuring that an association that is eligible for recognition as a political party does not suffer any disadvantage during the election campaign. The exclusion of preliminary injunctions in the complaint proceedings regarding non-recognition as a political party pursuant to § 96a(3) BVerfGG confirms this legislative expectation ([...]).

If the Federal Electoral Committee decides on the 79th day before the election (§ 18(4) first sentence BWahlG) and the complainant makes use of the four-day time limit for lodging a non-recognition complaint (§ 18(4a) first sentence BWahlG), the Federal Constitutional Court is left with only 16 days for obtaining a statement by the Federal Electoral Committee (§ 96b BVerfGG) and making a decision within the time limit prescribed by § 18(4a) second sentence BWahlG. It is true that the statutory requirements for the recognition of an association as a political party for an election can usually be reviewed within such a timeframe ([...]). It is doubtful, however, whether such a timeframe is also sufficient for a final assessment of whether the provisions of electoral and party law that are relevant to the challenged decision are constitutional.

bb) Likewise, the fact that § 96a(2) BVerfGG allows a period of just four days in which to state reasons for the complaint indicates that no incidental review of statutory provisions is to be conducted during such proceedings, since it would not usually be possible within this timeframe to submit reasons to substantiate the unconstitutionality of a provision relevant to the dispute in accordance with § 23(1) second sentence BVerfGG. Given the brief time period within which to submit a statement, the Federal Electoral Committee, which, pursuant to § 96b BVerfGG, must be given the opportunity to submit a statement, generally can also not be expected to give a thorough assessment of the constitutionality of the relevant provisions that addresses the complainant’s submissions.

cc) Unlike § 94(4) and § 77 BVerfGG [which determine the parties entitled to submit statements in constitutional complaint and judicial review proceedings], §§ 96a ff. BVerfGG do not specify which parties are entitled to submit a statement if the unconstitutionality of a law is asserted in complaint proceedings regarding non-recognition of a political party. Apart from § 96b BVerfGG, which grants the Federal Electoral Committee the opportunity to submit a statement, no allowance is made for the submission of statements in non-recognition complaint proceedings. This again suggests that such proceedings are not systematically designed to allow for the constitutionality of statutory provisions to be reviewed.

dd) § 32(5) BVerfGG provides for the possibility of rendering a decision in preliminary injunction proceedings without reasons. § 96d BVerfGG extends the possibility of rendering a decision without reasons to the principal proceedings of non-recognition complaints, thereby acknowledging that non-recognition complaint proceedings must be conducted in a highly expedited manner ([...]). This circumstance also calls into question the suitability of such proceedings for an incidental review of statutory provisions.

b) The principle that legal protection in electoral matters is generally deferred until after the election is equally an argument in favour of the presumption of a limited scope of review in non-recognition complaint proceedings. This principle is enshrined in Art. 41 GG and takes account of the fact that elections are mass scale operations (see (aa) below). The principle of deferred legal protection in electoral matters guarantees that potential electoral errors are subject to comprehensive review after the election has been completed. This includes a possible review of whether the relevant provisions of electoral law are constitutional (see (bb) below). The introduction of the non-recognition complaint as a new remedy is an isolated exception and has not changed the applicability of the principle that legal protection in electoral matters is deferred until after the election (see (cc) below). Accordingly, it is in electoral scrutiny proceedings that the Federal Constitutional Court reviews the constitutionality of electoral provisions (see (dd) below).

aa) Pursuant to Art. 41(1) GG, the scrutiny of elections is the responsibility of the Bundestag . The Basic Law thus provides for Parliament to be the first to make an assessment where the scrutiny of elections is concerned ([...]). Parliament’s decision is subject to review by the Federal Constitutional Court pursuant to Art. 41(2) GG.

Legal protection in electoral matters is deferred until after the election for a number of reasons, not least to ensure that elections are held in a timely manner. Bundestag elections require a number of individual decisions by several electoral bodies. In this sense, organising the popular will is a mass scale operation, during which errors cannot be completely avoided (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 85, 148 <158 f.>; [...]). It can only be ensured that parliamentary elections are conducted in a timely manner if legal review of the numerous individual decisions taken by electoral bodies is limited while the process is still ongoing, reserving scrutiny of such measures for an ex post review carried out after the elections (cf. BVerfGE 151, 152 <163 para. 31> with further references). If all decisions made while preparing and carrying out the Bundestag elections could be challenged with legal remedies before the elections, the process of organising elections would face major obstacles given that it is characterised by multi-level interaction between individual electoral bodies and numerous fixed dates and deadlines. A thorough investigation of the facts and clarification of complex factual and legal questions would hardly be possible without significant effects on the timely conduct of the election (cf. Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 24 August 2009 - 2 BvQ 50/09 -, para. 5). Yet the principle of democracy requires that elections be held regularly and protects their timely conduct ([...]).

It is therefore unobjectionable under constitutional law that, pursuant to § 49 BWahlG, the possibilities for scrutinising decisions related to the electoral process during the election and its preparation are limited, and that electoral errors are generally reviewed only within the framework of electoral scrutiny proceedings conducted after the election (cf. BVerfGE 14, 154 <155>; 16, 128 <129 f.>; 29, 18 <19>; 74, 96 <101>; 83, 156 <158>; 151, 152 <163 para. 31>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 24 August 2009 - 2 BvQ 50/09 -, para. 5). To this end, Art. 41 GG provides for a separate mechanism that constitutes the exclusive recourse to the Federal Constitutional Court in this regard (cf. BVerfGE 22, 277 <281>; 34, 81 <94>; 46, 196 <198>; 66, 232 <234>; 149, 374 <377 f. para. 8>; 149, 378 <381 f. para. 9>).

bb) Ex post legal protection in electoral matters makes it possible to review whether the election was properly conducted. This also includes a review of the constitutionality of the relevant provision of electoral law.

(1) With the adoption of the Act To Improve Legal Protection in Electoral Matters of 12 July 2012 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 1501), the original restriction of ex post legal protection in electoral matters to the review of electoral errors that impacted the allocation of seats in Parliament (Mandatsrelevanz ) ceases to be applicable. Pursuant to § 1(1) of the Act on the Scrutiny of Elections (Wahlprüfungsgesetz – WahlPrüfG), the Bundestag , in scrutinising elections, not only reviews the validity of the elections but also whether subjective rights have been violated while the elections were prepared and carried out. Where a subjective right has been violated, this must be established in the operative part of the decision, regardless of whether this violation impacted the allocation of seats in Parliament (§ 1(2) second sentence WahlPrüfG). Thus, electoral scrutiny proceedings serve to protect the proper composition of Parliament as well as the right to vote and to stand for election.

(2) In cases where electoral scrutiny proceedings are conducted after the election and the Bundestag ’s decision in these proceedings is challenged by way of a complaint to the Federal Constitutional Court under Art. 41(2) GG and § 48 BVerfGG, the Court not only examines whether the relevant provisions of electoral law were correctly applied with regard to the alleged electoral error, it also reviews whether the applied provisions of electoral law are compatible with the Constitution (cf. BVerfGE 89, 243 <249>; 97, 317 <321 f.>). The principle of deferred legal protection in electoral matters also encompasses the incidental review of the constitutionality of the electoral law provisions relevant to the challenged decision (cf. BVerfGE 16, 130 <135>; 21, 200 <204>; 34, 81 <95>; 121, 266 <295>; 123, 39 <68>; 132, 39 <47 para. 22>).

(3) Overall, the principle of deferred legal protection in electoral matters allows for a comprehensive legal review of elections. Given that this review is conducted after the election, those affected can, if they challenged an electoral error that does not impact the allocation of seats in Parliament, usually only attain a finding that their subjective electoral rights have been violated. If, however, it becomes clear in electoral scrutiny proceedings that an electoral provision is unconstitutional, the Federal Constitutional Court will declare the provision void or incompatible with the Basic Law, regardless of whether the challenged electoral error had an impact on the allocation of seats in Parliament (cf., e.g., BVerfGE 122, 304 <306>; 151, 1 <1 f.>).

cc) The non-recognition complaint that can be lodged pursuant to Art. 93(1) no. 4c GG and §§ 96a ff. BVerfGG derogates from the principle of deferred legal protection in electoral matters. Affected associations are thus, exceptionally, afforded the possibility to have a decision by the Federal Electoral Committee reviewed by a court and possibly rectified.

This does not call into question the general validity of the principle of deferred legal protection in electoral matters ([...]). Rather, the non-recognition complaint is an exception which does not undermine the general validity of the principle of deferred legal protection in electoral matters but ultimately reinforces it ([...]).

dd) The exceptional nature of the non-recognition complaint suggests that its scope of application should be determined with restraint. Since the Federal Electoral Committee is bound by the provisions of electoral and party law when deciding whether to recognise an association as a political party for an election pursuant to § 18(4) first sentence no. 2 BWahlG, and since the Committee is not authorised to review the constitutionality of the applicable provisions, the natural conclusion is that the scope of the Federal Constitutional Court’s review in non-recognition complaint proceedings is limited to whether the statutory provisions were applied correctly by the Federal Electoral Committee.

3. This interpretation is not refuted by the legislative history of the Act [introducing the non-recognition complaint]. Its legislative history does not indicate in any way that by introducing the complaint against non-recognition as a political party, the legislator wanted to create a legal remedy that opened up the possibility to review the constitutionality of the legal provisions relevant to a challenged decision prior to the elections. Rather, the complaint was introduced as a response to the widespread criticism regarding the lack of a possibility to challenge, prior to the elections, the Federal Electoral Committee’s decision not to recognise an association as a political party for election.

a) Prior to the introduction of the complaint against non-recognition as a political party, the Federal Electoral Committee’s decisions pursuant to § 18(4) BWahlG were completely excluded from judicial review (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 17/9391, p. 1; BTDrucks 17/9392, p. 4). Affected political parties or associations could only challenge such decisions in ex post electoral scrutiny proceedings under Art. 41 GG. Such proceedings could only be brought when the non-recognition as a political party and the resulting exclusion from the Bundestag elections could have impacted the allocation of seats in Parliament ([...]). It could not normally be assumed that this was the case where small or new political parties were concerned given that parties have to gain 5% of the vote in an election to sit in Parliament under the 5% threshold (5 %-Hürde ) ([...]).

[…]

b) The legislator […] introduced the non-recognition complaint as an ex ante legal remedy for associations not recognised as political parties for upcoming elections with the Act Amending the Basic Law of 11 July 2012 (BGBl I p. 1478), which inserted Art. 93(1) no. 4c GG into the Basic Law; moreover the legislator enacted implementing provisions specifying this amendment in § 13(1) no. 3a, § 96a ff. BVerfGG and § 18(4) and (4a) BWahlG (Act To Improve Legal Protection in Electoral Matters of 12 July 2012, BGBl I p. 1501 ff.). The legislative objective was to close the criticised gap in legal protection (cf. BTDrucks 17/9392, p. 4; BTDrucks 17/9391, pp. 1 and 5). The Federal Constitutional Court was tasked with reviewing and possibly remedying the non-recognition decision of the Federal Electoral Committee within a short time period upon complaints lodged by affected associations.

c) The scope of the review to be conducted by the Federal Constitutional Court cannot be clearly inferred from the legislative materials, nor is it ascertainable whether this review is to go beyond the scope of review of the Federal Electoral Committee. [...]

4. The presumption that no incidental review of statutory provisions is to be conducted during non-recognition complaint proceedings is further reinforced by the spirit and purpose of the provisions governing such proceedings.

a) Non-recognition complaint proceedings serve to review the Federal Electoral Committee’s refusal to recognise an association as a political party entitled to stand for election (cf. BTDrucks 17/9392, p. 4). Non-recognition complaint proceedings are not aimed at providing a mechanism to challenge and comprehensively review violations of objective law. Rather, they are designed to give associations that have lodged a complaint against a non-recognition decision by the Federal Electoral Committee pursuant to § 18(4) BWahlG an opportunity to have that decision swiftly reviewed with a view to participating in the election.

The purpose of non-recognition complaints is thus to grant timely legal protection to associations that are wrongly denied recognition as a political party, thereby giving them equal opportunities to participate in the election ([...]). The provisions governing the design of the proceedings under §§ 96a ff. BVerfGG serve to ensure that elections are held in a timely manner, while at the same time allowing for legal review and possible rectification of the Federal Electoral Committee’s decision to exclude an association from participation in an election (cf. regarding comparable Land constitutional law, Constitutional Court of the Land Brandenburg, Verfassungsgericht Brandenburg , Order of 21 June 2019 - VfGBbg 42/19 - juris, para. 6). This could not be ensured without the strict rules on timing under § 18(4a) BWahlG.

The non-recognition complaint thus has a somewhat hybrid character: although the proceedings are principal proceedings, they must be conducted in a highly expedited manner and are ultimately treated like preliminary injunction proceedings ([...]). In this respect, the non-recognition complaint differs from all other proceedings before the Federal Constitutional Court and amounts to a sui generis remedy that is subject to its own unique standards.

b) [...]

[…]

c) If the scope of review for non-recognition complaints were extended to the constitutionality of the legal provisions to be applied in the course of a recognition decision, this could create irresolvable tensions in the individual case. On the one hand, a finding of unconstitutionality would require an exhaustive legal assessment given that the principle of the separation of powers mandates that the Federal Constitutional Court exercise restraint vis-à-vis the legislator (cf. BVerfGE 140, 99 <106 f. para. 12> with further references). It appears doubtful whether the assessment required for an act to be repealed can be concluded with the necessary depth in the 16 to 20 days available for decision on non-recognition complaints [...] in each case. On the other hand, the primary objective of the proceedings would no longer be attainable if the decision were rendered later than the 59th day before the election, and thus when the association that lodged the complaint no longer has to be treated as a political party entitled to nominate candidates. The affected party’s right to equal opportunities to participate in the elections would then no longer be guaranteed.

5. Ultimately, the scope of review by the Federal Constitutional Court in non-recognition complaint proceedings is limited to examining whether the Federal Electoral Committee properly applied statutory law. An incidental review of statutory provisions is generally ruled out in these proceedings.

II.

The question of whether the Court should consider deviating from the presumption against reviewing the constitutionality of the relevant provisions in non-recognition complaint proceedings in cases where the manifest unconstitutionality of a provision of electoral law threatens to result in serious electoral errors (see 1. below) need not be decided here. The issue does not arise in the present case (see 2. below)

1. Notwithstanding the general precedence of ex post scrutiny of elections, ex ante legal protection is exceptionally required, including without a statutory basis, according to the case-law of the constitutional courts of the Länder , if a particularly qualified violation of rights gives rise to an electoral error of extraordinary weight which is likely to lead to new elections (cf. Constitutional Court of the Free State of Saxony, Verfassungsgerichtshof Sachsen , Judgment of 16 August 2019 - Vf. 76-IV-19 (HS) -, juris, para. 60 ff.). This could apply in case of (non-)recognition of an association as a political party pursuant to § 18(4) first sentence no. 2 BWahlG if a legal provision relevant to the recognition as political party is manifestly unconstitutional. There is no need to decide here whether in such a case, the incidental review of statutory provisions would exceptionally be permissible in non-recognition complaint proceedings.

2. This is because any constitutional concerns regarding § 2(2) second sentence and § 23(2) PartG (see (a) below) – the provisions relevant to the complainant’s non-recognition decision – do not reach the level of manifest unconstitutionality (see (b) below).

a) The loss of the legal status as a political party on grounds of failure to fulfil financial accountability obligations could be excluded if § 2(2) second sentence PartG were fully or in part void due to a violation of Art. 21(1) GG. This could be the case if loss of the legal status as a political party pursuant to § 2(2) second sentence PartG amounted to a constitutionally unjustified interference with the principle of the freedom of political parties under Art. 21(1) first and second sentence GG. The Federal Electoral Committee assumes that the complainant lost its legal status as a political party since it did not fulfil its financial accountability obligations following from § 2(2) second sentence in conjunction with § 23(2) PartG (see (aa) below). These obligations are a specific manifestation of the constitutional requirement of financial transparency under Art. 21(1) fourth sentence GG (see (bb) below). This, however, does not mean that the loss of the legal status as a political party on grounds of failure to fulfil this obligation under § 2(2) second sentence PartG (see (cc) below) is unobjectionable under constitutional law in the cases not covered by § 23(2) fourth sentence PartG (see (dd) below).

aa) Pursuant to § 2(2) second sentence in conjunction with § 23 PartG, an association loses its legal status as a political party if it fails to submit, in breach of its financial accountability obligations, a financial report that satisfies the statutory requirements over a six-year period. Pursuant to § 23(2) first and second sentence PartG, the statutory requirements include that the financial report must be audited and certified by an accountant or sworn auditor in accordance with §§ 29 to 31 PartG. Pursuant to § 23(2) fourth sentence PartG, political parties are only exempt from the obligation to submit a certified financial report if they do not receive state funding and if their income or assets do not exceed EUR 5,000 for the financial year.

bb) The financial accountability obligations applicable to political parties under §§ 23 ff. PartG have their constitutional basis in Art. 21(1) fourth sentence GG. This provision states that political parties must publicly account for their assets and for the sources and use of their funds.

This constitutional requirement is based on the consideration that the formation of the political will within a political party can be considerably influenced by people or organisations that provide large amounts of financial resources. Such interdependence of political and economic interests must be transparent to ensure the openness of the process of the formation of the political will. Voters must be able to obtain information about the powers that determine party politics and to examine the similarities between a party’s political agenda and the behaviour of those who try to influence a party through funding (cf. BVerfGE 24, 300 <356>; 111, 54 <83>). This serves to ensure that voters are put in a position to decide which party to support with their vote or otherwise. Moreover, the financial accountability obligations are designed to protect the internal order of political parties against undemocratic influence (cf. BVerfGE 85, 264 <319>).

Pursuant to Art. 21(5) GG, it is for the legislator to set out the details of the constitutional requirement of transparency. The legislator is afforded a wide margin of appreciation and leeway in this regard. In exercising this margin, the legislator may, in line with the meaning and purpose of the transparency requirement, take into account practicality aspects (cf. BVerfGE 85, 264 <321>; 111, 54 <84>). It is therefore generally not objectionable for the legislator to assume with respect to §§ 23 ff. PartG that only a complete financial report, drawn up with the involvement of external expertise, is sufficient to satisfy the constitutional requirement of providing citizens with information about a party’s income, expenditure and assets (cf. BVerfGE 24, 300 <356>; 111, 54 <89>). Even if the financial accountability obligations imposed on political parties by §§ 23 ff. PartG do interfere with their freedom of activity protected under Art. 21(1) first and second sentence GG, these obligations are in principle justified by Art. 21(1) fourth sentence GG.

cc) However, Art. 21(1) fourth sentence GG is only capable of justifying such interference if the withdrawal of recognition as a political party adheres to the requirement to strike an appropriate balance between, on the one hand, the freedom of political parties under Art. 21(1) first and second sentence GG and, on the other hand, the constitutional financial reporting obligations.

As yet, the Federal Constitutional Court’s case-law offers no guidance on whether § 2(2) second sentence PartG provides such justification. Legal scholars have raised considerable constitutional concerns regarding this provision ([...]). [...]

dd) […]

b) Despite these concerns, it is not manifestly obvious that § 2(2) second sentence in conjunction with § 23 PartG are unconstitutional; yet for the reasons set out above, such manifest unconstitutionality is the only relevant issue in the present proceedings.

aa) An assessment of the constitutionality of these provisions would require establishing the factual accuracy of the complainant’s assertion that political parties not covered by the exemption under § 23(2) fourth sentence PartG are unable to comply with the obligation to have their financial reports audited and certified, or at least that the burdens associated with this obligation unreasonably (unzumutbar ) impair the exercise of their constitutional mandate as a political party.

bb) Furthermore, it is not evident that the statutory design of the financial reporting obligations and the consequences of non-compliance fail to satisfy the constitutional requirement to strike an appropriate balance between the freedom of political parties and the transparency requirement. When balancing these constitutional interests, the prominent role in the formation of the political will that the Basic Law affords political parties in Art. 21(1) first sentence GG must be taken into account. At the same time, however, the significance of the transparency requirement must be given consideration. This requirement can generally justify the legislative decision to apply a strict standard and to demand the involvement of external expertise when it comes to parties’ financial reporting obligations ([…]). In this respect, it would also be required to assess the fact that under § 2(2) second sentence PartG a political party only loses its legal status if, over a six-year period, the party, in breach of its obligations, fails to submit a full financial report pursuant to § 23 PartG in each of the six years. Overall, it is at least not manifestly evident that § 2(2) second sentence in conjunction with § 23(2) fourth sentence PartG are unconstitutional.

III.

The narrow standard of review in complaint proceedings regarding non-recognition as a political party does not violate the guarantee of effective legal protection under Art. 19(4) GG. The possibility of lodging a non-recognition complaint prior to an election does not prevent complainants from challenging the constitutionality of the provisions of electoral and party law relevant to an association’s non-recognition as a political party in the context of post-election legal proceedings (see 1. below). There is thus no gap in legal protection that is incompatible with Art. 19(4) GG (see 2. below).

1. An association not recognised as a political party can initiate a review of the constitutionality of the legal provisions relevant to the decision of non-admission to the elections in electoral scrutiny proceedings (Art. 41(2) GG, § 13 no. 3, § 48 BVerfGG) given that in this type of proceedings, the Federal Constitutional Court not only reviews adherence to the provisions of the law on Bundestag elections, but also their compatibility with the Constitution (cf. BVerfGE 16, 160 <135 f.>; 121, 266 <295>; 123, 39 <68>; 132, 39 <47 para. 22>).

This does not rule out the possibility of lodging a non-recognition complaint. It is true that some legal scholars argue that the non-recognition complaint is a specific legal remedy whose scope of application in principle precludes post-election review ([...]).

However, this standpoint fails to consider the general rule that the Court does not conduct an incidental review of statutory provisions in non-recognition complaint proceedings and therefore does not examine any of the related constitutional questions., It can therefore be ruled out that the decision on the (un)constitutionality of the applied provisions has the force of law, in a mutatis mutandis application of § 31(2) first and second sentence BVerfGG. [...]

This corresponds to the specific function of the non-recognition complaint. Deciding on the lawfulness of the non-recognition at an early stage is meant to strengthen effective legal protection against decisions of the Federal Electoral Committee and afford political parties that were wrongly denied party status the possibility to participate in the elections. The non-recognition complaint is not intended to deprive a political party of other possibilities for legal protection. It is in line with these considerations that the binding effect of a decision on a non-recognition complaint is defined in such a way that the possibilities for legal protection are not curtailed compared to the situation before the non-recognition complaint was introduced ([...]). Pursuant to § 48(1) BVerfGG, affected associations are free to lodge an application in proceedings for the scrutiny of elections to assert a violation of their subjective electoral rights that arises from the unconstitutionality of the provisions relevant to its non-recognition.

2. Based on these considerations, the general exclusion of the possibility of an incidental review of statutory provisions in non-recognition complaint proceedings does not violate the guarantee of effective legal protection under Art. 19(4) GG. In its established case-law, the Federal Constitutional Court assumes that the exclusive recourse provided by electoral scrutiny proceedings rules out claims under Art. 19(4) GG (see para. 30 above). With Art. 41 GG, electoral scrutiny proceedings have a separate constitutional basis that takes the specific features of the electoral process into account. Therefore, electoral scrutiny proceedings generally do not fall under the scope of application of Art. 19(4) GG. Gaps in legal protection arising from this are a constitutionally unobjectionable consequence of the Bundestag elections being a mass scale operation ([…]).

[…]

IV.

In light of the above, it follows that the only question to be reviewed in the present non-recognition complaint was whether the decision not to recognise the complainant as a political party for the elections was based on the proper application of § 18(4) first sentence no. 2 BWahlG in conjunction with § 2(2) second sentence and § 23 PartG.

The Court found that it was. The complainant is not covered by the exemption under § 23(2) fourth sentence PartG and was thus not exempt from the obligation to provide an audited and certified financial report. Nevertheless, the complainant failed to submit certified financial reports over a time period of six years. Pursuant to § 2(2) second sentence PartG, the complainant has therefore lost its legal status as a political party. In the complaint proceedings regarding non-recognition, it is thus not objectionable that the Federal Electoral Committee did not recognise the complainant as a political party for the elections to the 20th German Bundestag pursuant to § 18(4) first sentence no. 2 BWahlG.