FEDERAL CONSTITUTIONAL COURT

- 2 BvF 1/21 -

IN THE NAME OF THE PEOPLE

In the proceedings
for constitutional review of

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

Maidowski,

Langenfeld,

Wallrabenstein

held on 20 July 2021:

1. The application for preliminary injunction is rejected.

R e a s o n s:

A.

The applicants, 216 members of the Bundestag from the parliamentary groups Bündnis 90/Die Grünen , Die Linke and FDP, lodged an application for preliminary injunction, together with an application for abstract judicial review of statutes, against Art. 1 nos. 3 to 5 of the Twenty-Fifth Act Amending the Federal Elections Act of 14 November 2020 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 2395 <BWahlGÄndG>, hereinafter: the Amendment Act). The Amendment Act in particular revises the procedure set out in § 6 of the Federal Elections Act (Bundeswahlgesetz – BWahlG) for calculating the total number of seats in the Bundestag as well as the distribution of seats among the Land lists presented by the political parties in Bundestag elections.

With their application for preliminary injunction, the applicants seek a provisional suspension of Art. 1 nos. 3 to 5 of the Amendment Act to the effect that the challenged provisions not be applied in the upcoming Bundestag elections.

I.

1. The provisions at issue, which are being challenged with an application for abstract judicial review lodged in the principal proceedings, were introduced by the parliamentary groups CDU/CSU and SPD in a bill for amending the Federal Elections Act (Bundestag document, Bundestagdrucksache – BTDrucks 19/22504 and 19/23187). These two parliamentary groups had initiated the bill because in the 2017 Bundestag elections, the then applicable law had led to a Parliament comprising 709 members [as opposed to the original statutory number of 598 members]. There were concerns that the upcoming elections could lead to a further increase in seats, jeopardising the proper functioning of the Bundestag and its ability to take action, and undermining acceptance among the general public (cf. BTDrucks 19/22504, pp. 1, 5).

[Excerpt from Press Release No. 73/2021 of 13 August 2021]

[Under Germany’s electoral system of proportional representation combined with candidate-centred elements, citizens entitled to vote in Bundestag elections can cast two votes on the ballot paper: the first vote is cast for candidates nominated for direct election in the constituencies, the second vote is cast for party lists, the so-called Land lists. The strength of a party in Parliament is in principle determined by the second votes received.]

Art. 1 nos. 3 to 5 of the Amendment Act entered into force on 19 November 2020, essentially revising § 6(5) and § 6(6) BWahlG, which govern the procedure for the distribution of seats in Bundestag elections. In its amended version, § 6 BWahlG now sets out the following procedure: For the initial distribution of seats – which is not affected by the amendment – the total number of seats allocated to each Land (federal state) is determined on the basis of its share in the German population using a divisor (so-called overall allocation). In a second step, the seats in each Land are distributed between the party lists competing in that Land based on the proportion of second votes each party received (so-called specific allocation). In this distribution, only the parties that have cleared the five-percent threshold (Sperrklausel – threshold clause) or have gained at least three direct constituency seats (Grundmandatsklausel – minimum representation clause) are taken into consideration. The number of direct constituency seats won by a party in the respective Land is deducted from the number of seats allocated to its Land list, in accordance with § 6(4) BWahlG. The party retains these direct constituency seats even if their number exceeds the number of seats allocated to its Land list (‘quasi-overhang mandates’).

In the next step, an increase of the total number of seats takes place under § 6(5) BWahlG. Basically, this provision states that, following the deduction of direct constituency mandates, the remaining number of seats is increased until each party, in the second distribution round as per § 6(6) BWahlG, has received at least the total number of seats falling to their Land lists. At the same time, § 6(5) fourth sentence BWahlG provides that “up to three seats won in the constituencies” are to be disregarded for the purposes of calculating the additional number of seats required (overhang mandates not compensated by balance seats, hereinafter: ‘uncompensated overhang mandates’).

In the following second round of distribution, based on the amended § 6(6) BWahlG, the seats resulting from the increase under § 6(5) BWahlG are distributed at the federal level among all parties entitled to seats; this is done on the basis of the divisor procedure used in the initial distribution. For each party, the seats are then distributed among the party’s Land lists, again using the divisor procedure. From the number of seats allocated to a Land list in this way, the number of direct mandates won by that party in the constituencies of the respective Land are deducted. In any case, the party keeps all direct constituency mandates even where they exceed the number of seats established for that party in the second distribution round pursuant to § 6(6) first sentence BWahlG. In this event, the total number of seats is increased by the difference, but there is no recalculation of the distribution. The remaining seats go to candidates nominated in the Land list in the order laid down in it, disregarding those candidates who have already won a direct constituency seat.

End of Excerpt ]

[...]

2. […]

II.

1. In their application brief of 1 February 2021, the applicants submit that the application for abstract judicial review lodged in the principal proceedings is admissible and well-founded. The applicants claim that Art. 1 nos. 3 to 5 of the Amendment Act violates Art. 20(3) of the Basic Law (Grundgesetz – GG), Art. 20(1) and Art. 20(2) GG, as well as Art. 38(1) first sentence GG and Art. 21(1) GG, and is thus void.

[...]

2. The applicants further submit that their application for preliminary injunction is admissible and well-founded. [...]

[...]

III.

1. a) The Bundestag submitted a statement arguing that the application for judicial review lodged in the principal proceedings is in any case unfounded.

[...]

b) aa) According to the Bundestag , the application for preliminary injunction [...] is already inadmissible. [...]

[...]

bb) The Bundestag furthermore contends that the application for preliminary injunction is in any case unfounded. [...]

[...]

2. a) The Federal Government also considers the application for judicial review lodged in the principal proceedings to be unfounded.

[...]

b) As for the application for preliminary injunction, the Federal Government is of the view that the application is already inadmissible. [...]

The Federal Government furthermore submits that the application for preliminary injunction is unfounded. [...]

IV.

[...]

B.

The application for preliminary injunction is admissible but unfounded.

I.

The prohibition to prejudice the outcome of the principal proceedings (Verbot der Vorwegnahme der Hauptsache ) does not oppose the admissibility of the application for preliminary injunction in the present case (see 1. below), nor do the applicants lack a recognised legal interest in bringing proceedings (see 2. below).

1. a) In principle, issuing a preliminary injunction is impermissible if it would would prejudice the outcome of the principal proceedings (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 34, 160 <162>; 46, 160 <163 f.>; 67, 149 <151>; 147, 39 <46 f. para. 11>; 152, 63 <65 para. 5>; established case-law). This is due to the fact that preliminary injunctions serve only to provisionally manage a matter in a pending dispute and must not predetermine the decision to be rendered in the principal proceedings (cf. BVerfGE 8, 42 <46>; 15, 219 <221>; 147, 39 <47 para. 11>; 152, 63 <66 para. 5>).

An application for preliminary injunction is therefore generally inadmissible if an applicant seeks an expedited decision on the measure challenged in the principal proceedings rather than a mere provisional order (cf. BVerfGE 147, 39 <47 para. 11>; 152, 63 <66 para. 5>). […]

However, in exceptional cases, an application for preliminary injunction may be permissible despite that fact that the order sought would result in a prejudicing of the principal proceedings. This is the case if the decision in the principal proceedings would most likely be rendered too late and the applicant has no other available means of seeking adequate legal protection in time (cf. BVerfGE 34, 160 <163>; 67, 149 <151>; 108, 34 <40>; 130, 367 <369>; 147, 39 <47 para. 11>; 152, 63 <66 para. 5>; established case-law). These prerequisites are met, in particular, if the disputed matter in the principal proceedings concerns a singular event, or a situation that unfolds within a brief period of time, on which the decision in the principal proceedings would no longer have any impact as the matter would already be moot by the time that decision were rendered ([...]).

b) Based on these standards, issuing the preliminary injunction sought would (at least to some extent) prejudice the decision in the principal proceedings (see aa) below). Yet in the present case, this does not preclude the admissibility of the application for preliminary injunction (see bb) below).

aa) With their application for preliminary injunction, the applicants seek a provisional suspension of Art. 1 nos. 3 to 5 of the Amendment Act to the effect that the challenged provisions not be applied in the upcoming Bundestag elections on 26 September 2021; such an injunctive order would to some extent prejudice the principal proceedings. In the principal proceedings, the applicants seek an order declaring the challenged provisions void. A preliminary injunction ordering that the provisions not be applied in the upcoming Bundestag elections would essentially grant the relief sought, at least in relation to those elections. Provisionally suspending legislation usually amounts to a prejudicing of the principal proceedings if the latter concern an application for abstract judicial review by which the applicant seeks to have legal provisions declared void (cf. § 78 first sentence of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG). By contrast, it is irrelevant for establishing a possible prejudicing of the principal proceedings whether and to what extent the legislator would enact new legislation to replace the challenged legal provisions.

In the present case, the preliminary injunction sought would have a significant practical impact given that a decision on the application for abstract judicial review cannot be rendered before the Bundestag elections take place on 26 September 2021. This finding is primarily informed by the fact that abstract judicial review proceedings entail an objective review of constitutionality independent of the applicant’s intent, given that the application lodged by the applicant only serves to initiate the review as such (cf. BVerfGE 1, 208 <219>; 68, 346 <351>), and involves a comprehensive examination of all legal issues arising under constitutional law (cf. BVerfGE 37, 363 <396 f.>; 86, 148 <211>; 97, 198 <214>; 101, 239 <257>; 112, 226 <254>). It is thus possible that legal issues beyond the ones raised by the applicants will need to be resolved in the principal proceedings. Moreover, it is in principle mandatory for the Court to conduct an oral hearing in abstract judicial review proceedings […], unless the applicants in their capacity as parties to the proceedings waive their right to a hearing (cf. § 25(1) BVerfGG). The Court must therefore dedicate time and effort to preparing and conducting such an oral hearing, especially since the present case strongly suggests that it would be conducive to hear from third party experts summoned in accordance with § 27a BVerfGG.

It follows that the preliminary injunction sought in the present case would (at least to some extent) prejudice the principal proceedings. The procedure for the distribution of parliamentary seats in § 6(5) and § 6(6) BWahlG, as revised by Art. 1 no. 3 of the Amendment Act which is currently being challenged in abstract judicial review proceedings, is only applicable to the calculation and determination of electoral results following Bundestag elections (cf. § 42(2) BWahlG, § 78 of the Federal Electoral Regulations, Bundeswahlordnung – BWahlO), which in principle only take place every four years (cf. Art. 39(1) first and third sentence GG) or if repeat elections (cf. § 44(4) BWahlG) become necessary ([...]). If these provisions were not applied in an election event due to a preliminary injunction to that effect, this would at least come close to temporarily declaring the legislation in question to be no longer in force (on suspending the execution of a court decision until after an election day by way of a preliminary injunction, cf. BVerfGE 34, 160 <163>).

bb) Nevertheless, seeking an injunction that could prejudice the principal proceedings is admissible in the present case. The Court’s decision in the principal proceedings would come too late to have any impact on the Bundestag elections to be held on 26 September 2021 (see (1) below), and there are no other means available to the applicants to obtain adequate legal protection (see (2) below).

(1) As set out above, the Court will not be able to render its decision on the application for judicial review lodged in the principal proceedings before the upcoming Bundestag elections. The decision in the principal proceedings would therefore come too late, at least as far as the applicability of the challenged provisions in the upcoming elections is concerned. To this extent, the decision could no longer grant the relief sought by the applicants.

(2) No other means of obtaining legal protection are available to the applicants in the present case. Most notably, proceedings for the scrutiny of elections under Art. 41(1) first sentence and Art. 41(2) GG do not constitute a sufficient alternative remedy.

(a) As regards abstract judicial review proceedings pursuant to Art. 93(1) no. 2 GG, § 13 no. 6, § 76(1) BVerfGG, the applicants are able to initiate such proceedings jointly in their capacity as members of the Bundestag (cf. Federal Constitutional Court, Order of the Second Senate of 3 November 2020 - 2 BvF 2/18 -, para. 15). By contrast, the applicants would not have legal ability to jointly initiate electoral scrutiny proceedings in that same capacity. This is because an electoral complaint to the Federal Constitutional Court is only admissible if an objection with the Bundestag has been filed first (cf. Art. 41(1) first sentence GG, § 2(1) of the Electoral Scrutiny Act, Wahlprüfungsgesetz – WahlPrüfG), which according to § 2(2) WahlPrüfG can only be done by individual citizens entitled to vote, by certain groups of citizens entitled to vote, or – acting in their official capacity – by each of the Land returning officers, the Federal Returning Officer or the President of the Bundestag . [...]

(b) Moreover, electoral scrutiny proceedings might in any case not necessarily be suitable for achieving the objective pursued by the applicants, who wish to subject the challenged provisions to an abstract review of constitutionality.

(aa) In accordance with Art. 41(1) first sentence GG, § 1(1) WahlPrüfG, electoral scrutiny exercised by the Bundestag is limited to findings of electoral errors in practice. Specifically, it does not extend to a constitutional review of the underlying legal bases of the elections at issue (cf. BVerfGE 151, 152 <163 para. 32>; […]). It is true that subsequent review proceedings before the Federal Constitutional Court, which may be initiated under Art. 41(2) GG, § 48(1) BVerfGG by way of an electoral complaint following the Bundestag ’s decision, extend to the constitutionality of electoral provisions if examination of the asserted electoral errors hinges on the validity of such legal provisions (cf. BVerfGE 146, 327 <348 para. 55>; 151, 152 <164 para. 32>). However, this does not alter the fact that the procedure conducted by the Bundestag is limited to scrutinising specific electoral errors and thus does not entail an abstract review of constitutionality regarding the underlying electoral laws as such (cf. BVerfGE 151, 152 <164 para. 32>). It is entirely possible that even if electoral scrutiny proceedings were initiated, this would not necessarily subject the [...] amended electoral framework in § 6(5) fourth sentence and § 6(6) fourth sentence BWahlG to a review of constitutionality given that the provisions at issue here, which allow for uncompensated overhang mandates, might not in the end actually come into play in the upcoming elections. It follows that neither the scrutiny procedure before the Bundestag under Art. 41(1) first sentence GG, § 1(1) WahlPfrüfG nor a subsequent electoral complaint to the Federal Constitutional Court under Art. 41(2) GG, § 13 no. 3 BVerfGG, § 48(1) first half-sentence BVerfGG would sufficiently ensure the type of legal protection sought by the applicants in the principal proceedings, which is an (abstract) review of constitutionality regarding the challenged electoral provisions.

(bb) Moreover, electoral scrutiny proceedings only provide ex post legal protection and as such would not allow a review of whether the electoral provisions at issue satisfy constitutional requirements prior to the elections (cf. in this regard BVerfGE 14, 154 <155>; 16, 128 <129 f.>; 28, 214 <219 f.>; 134, 135 <137 f. para. 4 f.>; […]). Such proceedings would therefore not enable the applicants to obtain timely legal protection before the 2021 Bundestag elections take place.

This is not called into question by the fact that, in terms of the content and legal effects of the Court’s decision, electoral scrutiny proceedings may well go beyond the scope of abstract judicial review proceedings (cf. § 78 first sentence BVerfGG), in that scrutiny proceedings may result in the elections being declared invalid and thus ultimately lead to repeat elections being ordered (cf. § 44(1) BWahlG) (on the prerequisites for such an order, cf. BVerfGE 121, 266 <311 f.>; 129, 300 <343 ff.>). Even where electoral scrutiny proceedings confirm the existence of electoral errors, this by no means automatically leads to repeat elections. Rather, the decision on repeat elections is contingent upon a balancing between the interest in safeguarding the status and stability of the newly elected Parliament, which is rooted in the principle of democracy, and the actual impact of the electoral errors in question (cf. BVerfGE 103, 111 <135>; 121, 266 <311 f.>; 129, 300 <345>; 154, 372 <381 f. para. 34>; established case-law). Ultimately, if the applicants were to initiate scrutiny proceedings after the elections, and even if they were successful in those proceedings, they would not necessarily obtain the legal protection they seek. Even successful scrutiny proceedings would not prevent the distribution of seats in the next Bundestag from being conducted on the basis of Art. 1 nos. 3 to 5 of the Amendment Act, nor would ex post electoral scrutiny lead to the undoing of such a seat distribution.

(c) Claiming that the applicants themselves precluded the possibility of conducting the principal proceedings and of thereby obtaining sufficient legal protection in time before the elections because they waited too long before lodging their application is not a valid argument in the present case [...]. It was not the applicants who only initiated a reform of the electoral framework in the year before the scheduled elections. Besides, it could not be expected of the applicants that they draft their application before the Amendment Act had been formally adopted, which was not until the Bundesrat rendered its decision in the legislative process on 6 November 2020 (Art. 78 GG). Taking into account the complexity of the matter at issue, it cannot be said that the applicants, who filed their application brief on 1 February 2021, waited unreasonably long after the conclusion of the legislative process to initiate review proceedings, and it cannot therefore be said that the applicants themselves are at fault for having undermined their chances of obtaining timely legal protection in the principal proceedings.

2. […]

II.

Nevertheless, the application for preliminary injunction is unfounded.

1. Pursuant to § 32(1) BVerfGG, the Federal Constitutional Court may provisionally decide a matter arising in a dispute by way of a preliminary injunction if this is urgently required to avert severe disadvantage, prevent imminent violence or for other important reasons in the interest of the common good. In assessing whether the prerequisites for issuing an injunction under § 32(1) BVerfGG are met, the Court must generally apply a strict standard given the potentially far-reaching consequences of a preliminary injunction (cf. BVerfGE 55, 1 <3>; 82, 310 <312>; 94, 166 <216 f.>; 104, 23 <27>; 106, 51 <58>; 132, 195 <232 para. 86>). When the Court decides on an application for preliminary injunction, the reasons submitted for the unconstitutionality of the challenged measure are not to be taken into account unless the declaration sought, or the application made, in the principal proceedings is inadmissible from the outset or clearly unfounded (cf. BVerfGE 89, 38 <43 f.>; 103, 41 <42>; 118, 111 <122>; 154, 1 <10 para. 25>; established case-law). If the prospective outcome of the principal proceedings cannot be foreseen, the Federal Constitutional Court must weigh the consequences that would arise if the preliminary injunction were not issued but the application were successful in the principal proceedings, against the consequences that would arise if the preliminary injunction sought were issued but the application in the principal proceedings were unsuccessful (cf. BVerfGE 126, 158 <168>; 129, 284 <298>; 132, 195 <232 f. para. 87>; 154, 1 <10 para. 25>; established case-law).

This standard for establishing the prerequisites for a preliminary injunction under § 32(1) BVerfGG is particularly strict if the suspension of a law is at issue (cf. BVerfGE 3, 41 <44>; 6, 1 <4>; 64, 67 <69>; 117, 126 <135>; 151, 152 <161 para. 24>; established case-law). The Federal Constitutional Court must exercise the utmost restraint in using its power to provisionally suspend a law, or even to stay the entry into force of a law, as such action constitutes a significant encroachment upon inherent competences of the legislator (cf. BVerfGE 104, 23 <27>; 122, 342 <361>; 131, 47 <61>; 140, 99 <106 f. para. 12>; 151, 152 <161 para. 24>; established case-law). Generally, the reasons in favour of the preliminary injunction sought must carry such weight that they render the issuing of the injunction indispensable. In the particular case where suspension of a law is sought, the underlying reasons must possess even greater weight (cf. BVerfGE 104, 23 <27 f.>; 122, 342 <361 f.>; 140, 99 <107 para. 12>; 151, 152 <161 para. 24>; established case-law).

2. Based on these standards, the application for preliminary injunction is not successful in the present case. While the application in the principal proceedings is neither inadmissible nor clearly without any prospects of success (see a) below), the necessary weighing of consequences is not in favour of the applicants (see b) below).

a) The application for abstract judicial review of statutes under Art. 93(1) no. 2 GG, § 13 no. 6, §§ 76 ff. BVerfGG, as lodged in the principal proceedings, is neither inadmissible from the outset (see aa) below) nor clearly unfounded (see bb) below).

aa) In the present case, the only possible grounds for objecting to the admissibility of the judicial review application in the principal proceedings derive from the principle of exclusive recourse through electoral scrutiny (Grundsatz der Exklusivität der Wahlprüfung ). Yet these objections are ultimately without merit.

(1) Art. 41(1) first sentence GG provides that the Bundestag is responsible for the scrutiny of elections, and that the Bundestag ’s decision can be challenged with an electoral complaint to the Federal Constitutional Court under Art. 41(2) GG. Accordingly, § 1(1) WahlPrüfG states that it is for the Bundestag to decide on the validity of Bundestag elections, and on rights violations that occurred in preparing or conducting the elections to the extent that such violations fall within the scope of electoral scrutiny in accordance with Art. 41(1) GG, and that this applies without prejudice to the possibility of challenging the Bundestag ’s decision with an electoral complaint to the Federal Constitutional Court under Art. 41(2) GG. In this regard, the Bundestag ’s powers of scrutiny extend to the entire electoral process, from the preparations to the actual holding of the elections and the establishment of the official results (cf. BVerfGE 151, 152 <163 para. 30>; […]). Within this remit, electoral scrutiny proceedings constitute a special mechanism that supersedes more general instruments of legal protection, and thus in principle preclude other forms of recourse (cf. BVerfGE 151, 152 <163 para. 30>; […]). To this extent, the mechanism set out in Art. 41(1) first sentence and Art. 41(2) GG constitutes the exclusive legal recourse available ([…]). For the purposes of Bundestag elections, this notion is reflected in § 49 BWahlG according to which any decision and measure directly affecting the electoral process may only be contested by means of the legal remedies provided in the Federal Elections Act and the Federal Electoral Regulations and by way of electoral scrutiny proceedings.

The resulting restrictions of access to legal protection are not objectionable under Art. 19(4) GG [right to effective legal protection]. Elections are mass scale operations that must be conducted swiftly and must lead to a timely determination of the official results. A smooth electoral process can only be ensured 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 to an ex post review carried out after the elections (cf. for a general overview BVerfGE 151, 152 <163 para. 31> with further references).

(2) Yet the principle of exclusive recourse through electoral scrutiny is not applicable in relation to proceedings for the abstract judicial review of statutes (cf. BVerfGE 151, 152 <163 para. 32>; […]). The legal exclusivity stemming from the special nature of electoral scrutiny proceedings is limited by the scope of the review conducted by the Bundestag as set out in § 1(1) WahlPrüfG. It is true that subsequent electoral complaint proceedings before the Federal Constitutional Court, which may be initiated under § 48(1) BVerfGG by way of an electoral complaint following the Bundestag ’s decision, extend to the constitutionality of electoral provisions if examination of the asserted electoral errors hinges on the validity of such legal provisions (cf. BVerfGE 146, 327 <348 para. 55>). However, this does not alter the fact that the scrutiny procedure by the Bundestag is limited to scrutinising specific electoral errors (cf. BVerfGE 151, 152 <163 para. 32>) and the subsequent electoral complaint proceedings do not per se serve to enable an abstract review of constitutionality regarding electoral law (cf. BVerfGE 146, 327 <348 para. 55>).

(3) The mere fact that abstract judicial review proceedings are initiated in close temporal proximity to an election day does not merit an exception to this rule (cf. BVerfGE 151, 152 <164 para. 33>; [...]). In keeping with the spirit and purpose of the principle of exclusive recourse through electoral scrutiny, it is not necessary to accord precedence to electoral scrutiny proceedings over abstract judicial review proceedings. Electoral scrutiny proceedings are designed to manage the risk that too many individual legal challenges against individual measures could jeopardise the holding of the elections, whereas with abstract judicial review proceedings there is no such risk from the outset. Other risks stemming from abstract judicial review proceedings that could jeopardise the holding of the elections are not ascertainable or can effectively be ruled out. Even in the event that the Federal Constitutional Court conducted an abstract judicial review of electoral provisions and arrived at the conclusion that certain provisions were unconstitutional, the Court could in particular opt for a declaration of incompatibility, together with an order that the contested provisions nevertheless continue to be applicable in upcoming elections, if a declaration of ex tunc voidness would jeopardise the holding of elections scheduled to take place in close proximity to the Court’s decision (cf. BVerfGE 151, 152 <164 f. para. 33>).

bb) The application for abstract judicial review lodged in the principal proceedings is not manifestly unfounded either. It does not appear that the challenges brought by the applicants against Art. 1 nos. 3 to 5 of the Amendment Act, on the grounds that these provisions violate the constitutional requirement of specificity (see (1) below) and the principles of equal suffrage and of equal opportunities for political parties (see (2) below), are without merit from the outset. Moreover, it appears possible that the judicial review application in the principal proceedings could prove to be well-founded on the grounds that the amended § 6 BWahlG as such violates constitutional requirements beyond the issues raised by the applicants (see (3) below).

(1) (a) The principle of the rule of law (Art. 20(3) GG) gives rise to the requirement that legal provisions be sufficiently specific (principle of specificity). This principle obliges the legislator to make provisions as specific as possible with regard to the particular nature of the subject matter addressed and in consideration of the legislative objective pursued (cf. BVerfGE 49, 168 <181>; 59, 104 <114>; 78, 205 <212>; 103, 332 <384>; 134, 141 <184 para. 126>; 149, 293 <323 para. 77> with further references). The requirement of specificity serves to ensure that the law subjects the government and administration to sufficiently clear standards that direct and limit state action, and that the courts can effectively review the lawfulness of such action (cf. Federal Constitutional Court, Order of the First Senate of 10 November 2020 - 1 BvR 3214/15 -, para. 86). Decisions on measures restricting the freedom of citizens may not be left unilaterally to the discretion of public administration (cf. BVerfGE 78, 214 <226> with further references; 113, 348 <376>; 149, 293 <323 para. 77>). In this sense, the requirement of specificity is inherently related to the requirement of a parliamentary decision (cf. BVerfGE 56, 1 <13>; 120, 378 <408>; 150, 1 <99 ff. para. 198 ff.>).

The level of specificity required cannot be determined beforehand in abstract and general terms but depends on the particular nature of the subject matter addressed in a law and the legislative objective pursued (cf. BVerfGE 89, 69 <84>; 103, 111 <135>; 123, 39 <78>; 131, 316 <343>). The fact that the meaning of a legal provision is open to interpretation does not by itself raise doubts as to the degree of legal specificity and clarity required in a democratic society under the rule of law (cf. BVerfGE 21, 73 <79>; 78, 205 <212>; 83, 130 <145>; 131, 316 <343>; 149, 293 <324 para. 78>; 150, 1 <96 ff. para. 190 ff.>). Rather, the requirement of specificity is satisfied if problems of interpretation can be overcome by applying established legal methodology (cf. BVerfGE 83, 130 <145>; Federal Constitutional Court, Order of the First Senate of 10 November 2020 - 1 BvR 3214/15 -, para. 86). Regarding administration action that results in fundamental rights interferences, the Federal Constitutional Court has held that the more intrusive the interference, the stricter the standards are regarding the level of specificity and clarity required of the statutory basis created to authorise such interference (cf. BVerfGE 59, 104 <114>; 134, 33 <81 para. 111>; 149, 293 <323 f. para. 77>; 150, 1 <98 para. 196>; each with further references). Lastly, the standards applicable in the specific case may also be dependent on the group of persons that have to apply the law and the group of persons addressed by the law (cf. BVerfGE 48, 48 <57>; 126, 170 <196>; 128, 282 <318>; 149, 293 <324 para. 77>; 150, 1 <98 para. 196 f.>).

(b) When it comes to electoral law in particular, a sufficient degree of specificity in designing legal provisions is imperative (cf. BVerfGE 131, 316 <343 f.>; […]). This is due to the fact that elections serve as the constituent act by which the continuous process enabling the formation of the political will of the people is channelled into the formation of the political will of the state (cf. BVerfGE 20, 56 <98>; 123, 39 <68>; 144, 20 <210 para. 546>). Electoral law is of paramount importance in giving effect to the principle of democracy. It would thus appear unacceptable for executive bodies to be given free discretion to influence the distribution of seats following parliamentary elections. The decision on which electoral system to adopt and how the details of this system are to be designed is reserved to the democratically elected legislator (cf. BVerfGE 131, 316 <334 ff.>). This is reflected in Art. 38(3) GG, which explicitly confers a mandate upon the federal legislator to this end (cf. BVerfGE 3, 19 <24>; 131, 316 <335 f.>). The requirement of specificity therefore appears to bear a close connection to the principle of direct parliamentary elections enshrined in Art. 38(1) first sentence GG, which requires that the elected members of Parliament be directly determined through and by the act of citizens’ voting (cf. BVerfGE 3, 45 <49>). This principle precludes the adoption of an electoral system in which another authority steps in between the voters and the candidates standing for elections, using its own discretion to determine which candidates should be elected, thereby preventing a direct election (cf. BVerfGE 7, 63 <68>; 47, 253 <279 f.>).

(c) Measured against these standards, it cannot be entirely ruled out that the amendments to §§ 6, 48 BWahlG as laid down in Art. 1 nos. 3 to 5 of the Amendment Act are incompatible with the requirements of legal specificity and clarity.

The applicants contend that § 6(5) fourth sentence BWahlG does not sufficiently specify whether the phrase requiring “up to three seats won in the constituencies” to be disregarded in calculating the increase of the total seat number refers to the constituencies won in each Land or the ones won by each party, or whether it generally refers to all parties in all the Länder . It must be noted that the wording of the provision is indeed silent on this matter. On the one hand, it does appear somewhat plausible that the statutory clause in question can be interpreted as providing that generally up to three ‘quasi-overhang mandates’ resulting from the first distribution round are to be disregarded in the subsequent increase of seats under § 6(5) first sentence BWahlG. On the other hand, there is also reason to assume that the element “to be disregarded” is to be understood in the sense that up to three of such overhang mandates do not have to be compensated by newly-created balance seats. Ultimately, however, the conclusive determination of whether the provision is indeed lacking in terms of specificity must be left to the principal proceedings. This is especially true given that during the legislative process, experts ([...]) and members of the Bundestag ([...)] had expressed differing views as to how the proposed bill was to be understood, and yet the legislator took no action to resolve or clarify this issue before adopting the bill.

As for § 6(6) BWahlG, the final determination as to whether this provision satisfies the above specificity standards must also be left to the principal proceedings. For now, it cannot be ruled out from the outset that determining how that provision is to be understood could reveal contradictions that would ultimately make it impossible to reach a conclusive interpretation in line with the requirement of legal clarity. If this were the case, it would be in violation of the constitutional requirement that the procedure for calculating the actual distribution of seats among parties and among candidate lists be laid down in sufficiently clear and specific statutory provisions.

Similar concerns arise with regard to § 48(1) second sentence BWahlG. According to that provision, seats that become vacant because the elected candidate steps down are not filled [as would usually be the case] with the next candidate on the party’s Land list if the party in question still holds “seats as per § 6(6) fourth sentence BWahlG” for the respective Land . The wording of the law does not further specify how mandates within the meaning of this provision are to be determined. The experts that were heard in the legislative process suggested different calculation methods, none of which can be inferred from the wording of § 48(1) second sentence BWahlG itself. Further examination on the part of the Court is therefore required to assess whether the provision can nevertheless be regarded as sufficiently clear for the purposes of determining in which cases, i.e. in relation to which Land lists and mandates, vacant seats are to be left unfilled.

(2) (a) The principle of equal suffrage safeguards the equality of citizens as a prerequisite for giving effect to the principle of democracy (cf. BVerfGE 99, 1 <13>; 135, 259 <284 para. 44>; 146, 327 <349 para. 59>; each with further references). Under this principle, which is to be understood as a strict and formal equality guarantee, it is imperative that all persons entitled to vote and to stand for elections can exercise these rights on equal formal terms (cf. BVerfGE 121, 266 <295>; 135, 259 <284 para. 44>; 146, 327 <349 f. para. 59>; each with further references). In a system of proportional representation, the principle of equal suffrage requires in particular that all voters, in casting their vote, have the same level of influence on the composition of the parliamentary body for which elections are held (cf. BVerfGE 129, 300 <317 f.>; 146, 327 <350 para. 59>; each with further references).

Under Art. 21(1) GG, it is imperative that all political parties be given equal opportunities in the entire electoral process, meaning that they have equal chances of winning parliamentary seats. The right of political parties to equal opportunities is closely linked to the principles of universal and equal suffrage, which in turn are shaped by the principle of democracy (cf. BVerfGE 85, 264 <297>; 120, 82 <105>; 129, 300 <319>; 135, 259 <285 para. 48>; 146, 327 <350 para. 60>).

The principles of equal suffrage and of equal opportunities for political parties do not give rise to an absolute prohibition of differentiation. Yet the formal nature of these two guarantees means that the legislator, when deciding on the design of the electoral framework, has only limited leeway for differentiation. Any differentiation must be justified by constitutionally recognised, legitimate reasons that carry weight commensurate with the weight attached to equal suffrage and to equal opportunities for political parties (cf. BVerfGE 146, 327 <350 f. para. 61> with further references). Reasons capable of justifying differentiations in electoral law include the aims of elections. These include safeguarding the function of elections as an integrative process for the formation of the political will of the people and, as an interrelated interest, safeguarding Parliament’s ability to function (cf. BVerfGE 146, 327 <351 para. 62> with further references). Moreover, the electoral system of proportional representation combined with a candidate-centred element is designed to allow voters to cast their vote for a specific person even though the electoral system as such operates on the basis of proportional representation. This also constitutes a legitimate aim capable of justifying interferences with the principles of equal suffrage and of equal opportunities for political parties (cf. BVerfGE 7, 63 <74 f.>; 16, 130 <140>; 95, 335 <360 f.>; 131, 316 <365 ff.>).

It is generally incumbent upon the legislator to balance the principle of equal suffrage against conflicting constitutional interests (cf. BVerfGE 95, 408 <420>; 131, 316 <338>; 146, 327 <352 para. 63> with further references). In this respect, the Federal Constitutional Court only assesses whether constitutional limits have been observed; it does not assess whether the approach adopted by the legislator constitutes an expedient or desirable solution in terms of legal policy (cf. BVerfGE 95, 408 <417 f.>; 129, 300 <322>; 135, 259 <289 para. 57>; 146, 327 <352 para. 63> with further references). When enacting laws that touch upon the conditions of political competition, the parliamentary majority essentially decides on its own interests, which is why the design of electoral laws is subject to a strict review by the Federal Constitutional Court as to whether the law in question satisfies constitutional requirements (cf. BVerfGE 120, 82 <105>; 129, 300 <322 f.>; 130, 212 <229>; 135, 259 <289 para. 57>; 146, 327 <352 para. 63>).

(b) Based on these standards, the application for judicial review lodged in the principal proceedings also does not appear manifestly unfounded insofar as the applicants assert a violation of the electoral principles of equal suffrage and equal opportunities for political parties. In the principal proceedings, further examination will be necessary to assess whether the amendment at issue, which allows for uncompensated overhang mandates, is compatible with the Basic Law.

(aa) The revised distribution procedure entails the possibility that overhang mandates won in the constituencies are not fully compensated by the creation of balance seats. As a consequence, the so-called success value (Erfolgswert ) of votes cast in the elections differs (cf. BVerfGE 79, 161 <167>; 131, 316 <362>). Where a party gains an overhang, this means that voters who have cast their first vote for that party’s constituency candidates allowed the party to gain more direct seats than can be deducted from the seats won for the respective party lists. As a result, the proportional representation of parties, as calculated on the basis of second votes, is distorted. This impairs the principle of equal success values, at least to the extent that overhang mandates are not offset by additional balance seats (cf. BVerfGE 7, 63 <74>; 16, 130 <139>; 95, 335 <363>; 131, 316 <362 f.>). Moreover, the existence of uncompensated overhang mandates affects the right of political parties to equal opportunities. This is because a party gaining uncompensated overhang mandates is essentially allocated more seats in relation to its share in second votes than would be the case for parties without such an uncompensated overhang in constituency mandates (cf. BVerfGE 79, 169 <172>; 95, 335 <359>; 131, 316 <363>).

bb) In an electoral system of proportional representation (second vote) in combination with a candidate-centred element (first vote), as operated in Germany, this discrepancy in the success value of votes, resulting from the possibility of uncompensated overhang mandates, can only be justified to a limited extent. The electoral system that combines proportional representation with a candidate-centred element aims to allow voters to cast their vote for individual persons even though the system as such is based on the proportional allocation of seats to party lists. This aim is recognised as a legitimate interest under constitutional law. By adopting this electoral design, the legislator intended firstly to strengthen the connection between voters and members of the Bundestag as the elected representatives of the people. Secondly, the legislator intended to provide for a corrective element, reflected in the independent status of members of the Bundestag (Art. 38(1) second sentence GG), to moderate the dominant role assigned to political parties in the formation of the political will of the people (Art. 21(1) first sentence GG). At the same time, the candidate-centred element in the form of constituency mandates serves to ensure that at least half the members of the Bundestag have a closer personal connection to their constituency [compared with party list candidates] (cf. BVerfGE 7, 63 <74>; 16, 130 <140>; 41, 399 <423>; 95, 335 <358>; 131, 316 <365 f.>). The aim pursued with this electoral design is sufficiently weighty to justify the allocation of uncompensated overhang mandates to a limited extent at least (cf. BVerfGE 131, 316 <366 f.> with further references).

However, the extent to which the allocation of uncompensated overhang mandates results in different success values being attributed to votes must be in keeping with the underlying legislative concept (cf. BVerfGE 95, 408 <421>; 131, 316 <367>). The allocation of Bundestag seats to a party beyond its proportional share in second votes must not undermine the basic rationale of the electoral system, which is that the distribution of seats in Parliament is ultimately determined, in terms of proportional representation, by the results of the votes cast for party lists in the elections (cf. BVerfGE 95, 335 <361, 365 f.>; 131, 316 <367>). In the past, the Court already held that in such a system, electoral law must strike an appropriate balance between, on the one hand, ensuring that the allocation of seats in Parliament is as close as possible to a proportional representation of second votes, and on the other hand safeguarding the interest in preserving all direct mandates gained by constituency candidates. The Court also stated that an electoral design can no longer be considered appropriate if the number of overhang mandates is more than roughly half the number of seats needed to form a parliamentary group (i.e. more than 15 mandates) (cf. BVerfGE 131, 316 <367 ff.>).

(cc) Based on these considerations, it appears possible that allowing the creation of overhang mandates not compensated by balance seats could in fact be compatible with the constitutional requirements deriving from Art. 38(1) first sentence GG and Art. 21(1) first sentence GG – this would be even more likely if the Court were to conclude that § 6(5) fourth sentence BWahlG is indeed to be interpreted to the effect that it only allows for up to three uncompensated overhang mandates in total. Nevertheless, this would require a more in-depth determination of how the resulting interference with the aforementioned electoral equality guarantees can be justified under constitutional law. For instance, should it turn out that allowing (up to three) uncompensated overhang mandates is not necessary to strengthen the candidate-centred element of the electoral system, given that additional balance seats are in any case created to offset the remaining overhang mandates, a different basis for justifying the provision at issue would have to be demonstrated under constitutional law. Another constitutionally protected interest of comparable weight, which could possibly justify the interferences with the principles of equal suffrage and of equal opportunities for political parties, is the proper functioning of the Bundestag . Yet the underlying issues of constitutional law cannot be fully resolved in preliminary injunction proceedings but require further examination in the principal proceedings.

(3) Lastly, the judicial review application lodged in the principal proceedings could prove to be well-founded because § 6 BWahlG, as amended, might be objectionable on the grounds of constitutional concerns beyond the ones raised by the applicants. In abstract judicial review proceedings, an objective review of constitutionality independent of the applicant’s intent is conducted, which entails a comprehensive examination of all legal issues arising under constitutional law (cf. BVerfGE 37, 363 <396 f.>; 86, 148 <211>; 97, 198 <214>; 101, 239 <257>; 112, 226 <254>). In the present case, it is yet to be determined whether § 6 BWahlG, with all subsections read together, is compatible with the constitutional requirement that legal provisions be sufficiently clear and comprehensible.

(a) The requirement of legal clarity, which arises from the principle of the rule of law enshrined in Art. 20(3) GG (cf. BVerfGE 21, 73 <79>; 47, 239 <247>; 103, 21 <33>; 108, 52 <74>; 139, 194 <227 para. 110>), serves to ensure that the persons addressed and bound by a legal provision can understand its normative content (cf. BVerfGE 128, 282 <318>). Accordingly, the primary focus is on substantive comprehensibility of legislation (cf. BVerfG, Order of the First Senate of 10 November 2020 - 1 BvR 3214/15 -, para. 87). The principle of legal clarity extends to all dimensions and constituent elements of a legal provision and thus applies with regard to both the prerequisites and the legal consequences laid down therein ([...]). This notwithstanding, the principle of legal clarity does not prohibit the use of indeterminate legal concepts (unbestimmte Rechtsbegriffe ) (cf. BVerfGE 21, 73 <79>; 149, 293 <323 f. para. 77 f.>). Nor does this principle per se prevent the legislator from relying on chains of statutory references (to other legislation). Yet where persons bound by a legal provision are not able to discern, with reasonable effort, the prerequisites and legal consequences laid down therein, this is an indication that the principle of legal clarity is violated (cf. BVerfGE 110, 33 <61 ff., especially 63 f.>).

There is reason to assume that this standard, requiring that legal provisions be sufficiently clear and comprehensible, is also applicable to electoral law. This is in line with the findings of the Second Senate of the Federal Constitutional Court in past proceedings, in which the Senate alerted the legislator to the fact that “the principle of legal clarity sets particularly strict standards in electoral law” (cf. BVerfGE 79, 161 <168>) and called on the legislator to “take action regarding the almost impenetrable maze of provisions governing the distribution of seats in the Bundestag, which is hardly comprehensible to voters anymore, and to create a new, clear and comprehensible legal basis in electoral law instead” (cf. BVerfGE 121, 266 <316>; 122, 304 <311>; Federal Constitutional Court, Order of the Second Senate of 9 February 2009 - 2 BvC 11/04 -, para. 17; Orders of 18 February 2009 - 2 BvC 6/03 -, para. 19 and - 2 BvC 9/04 -, para. 27; Orders of 26 February 2009 - 2 BvC 6/04 -, para. 20 and - 2 BvC 1/04 -, para. 21; Order of 25 February 2010 - 2 BvC 6/07 -, para. 18). In this respect, it appears possible – without prejudice to further examinations in the principal proceedings – that constitutional law imposes on the legislator an obligation to design the electoral process in a manner that allows voters to determine, before they cast their vote, what impact their voting decision could have on the prospects of candidates standing for election (cf. BVerfGE 47, 253 <279 f.>; 95, 335 <350>; 121, 266 <307>; each concerning the principle of direct elections; cf. also BVerfGE 131, 316 <336>). In electoral law, it also appears that the principle of legal clarity bears a direct connection to the principle of public elections (Grundsatz der Öffentlichkeit der Wahl ). The latter requires that all essential steps of elections be subject to public scrutiny, and that the electoral process not be designed in a manner that precludes voters from assessing whether their vote counted towards the determination of the electoral results in an undistorted manner (cf. BVerfGE 123, 39 <69 f.>).

(b) It cannot in any case be entirely ruled out that § 6 BWahlG, as amended, falls short of the requirements derived from the principle of legal clarity. It can be assumed that even in its former version, i.e. before the challenged amendment was enacted, the procedure set out in § 6 BWahlG had reached a considerable degree of complexity, starting with the initial distribution of seats followed by an increase in the number of seats before a second distribution round takes place, combined with the interim steps required for the ‘overall allocation’ and the ‘specific allocation’ of seats in each distribution round. Further revising this procedure, Art. 1 nos. 3 to 5 of the Amendment Act now provides inter alia for “up to three overhang mandates” to be disregarded for the purposes of calculating the increase in parliamentary seats and for the possibility to offset ‘quasi overhang mandates’ internally for each party, adding yet another element to the process and thus another layer of complexity. The Court will therefore have to examine in the principal proceedings whether § 6 BWahlG, in its current version, constitutes a clear and comprehensible legal basis, in line with constitutional law, for calculating the distribution of seats in the Bundestag following elections. In this light, it is not necessary to decide at present whether the provisions at issue raise further unresolved questions of constitutional law – for instance, with regard to the timing of the electoral amendment or the phenomenon of ‘negative voting weight’ (negatives Stimmgewicht ).

b) In light of the foregoing, the decision in the present preliminary injunction proceedings must be taken on the basis of a weighing of consequences. In this respect, there are both weighty reasons in favour of the preliminary injunction sought (see aa) below) as well as weighty reasons opposing it (see bb) below). Ultimately, the reasons in favour of issuing the injunction sought by the applicants are not sufficient to justify the resulting encroachment upon the competences of the legislator (see cc) below).

aa) If the preliminary injunction were not issued but the new procedure for the distribution of seats, as revised by Art. 1 no. 3 of the Amendment Act, were later found to be unconstitutional, this would considerably impair the principles of equal suffrage and of equal opportunities for political parties (see (1) below). Moreover, this could lead to executive authorities tasked with implementing the procedure having an undue amount of influence on the allocation of seats following the elections (see (2) below). The possible violations of the constitutional requirements derived from the principle of legal clarity could furthermore impair the function of the elections in conferring democratic legitimation (see (3) below). Yet subsequent proceedings for the scrutiny of elections could help mitigate these consequences (see (4) below). Compared to the potential consequences of Art. 1 no. 3 of the Amendment Act, the consequences stemming from changes to § 46 and § 48 BWahlG [as set out in Art. 1 nos. 4, 5 of the Amendment Act] are negligible in the present proceedings (see (5) below).

(1) (a) If the procedure for the distribution of seats, as amended by Art. 1 no. 3 of the Amendment Act, were applied in the upcoming Bundestag elections on 26 September 2021, this could – depending on the electoral results – lead to the allocation of uncompensated overhang mandates under the revised § 6(5) fourth and fifth sentence BWahlG as well as § 6(6) fourth and fifth sentence BWahlG. If the revised procedure were later found to be unconstitutional, the upcoming Bundestag elections would be marred by an electoral error (cf. BVerfGE 130, 212 <224>; 146, 327 <341 para. 38>; […]). Yet this would not necessarily call into question the newly elected Bundestag ’s ability to function properly. Even if the elections were later declared invalid, which would be possible based on a balancing between the interest in safeguarding the status and stability of the new Parliament and the severity of the electoral error (cf. BVerfGE 103, 111 <135>; 121, 266 <311 f.>; 129, 300 <345>; 154, 372 <381 f. para. 34>; established case-law), such declaration would only take effect ex nunc (cf. BVerfGE 121, 266 <313>). All legal acts adopted up to that point, most notably legislation, would remain in force (cf. BVerfGE 34, 81 <95 f.> with further references).

However, to the extent that the elections suffered from a legal error in that scenario (cf. BVerfGE 121, 266 <313 f.>), the legitimising function of the electoral process would be impaired. Firstly, such impairment would result from the fact that the principle of equal suffrage would be violated in that scenario. The voting weight of those voters whose votes led to the creation of uncompensated overhang mandates would ultimately be higher than the weight attached to the votes cast by the remaining electorate, given that both the first and the second votes cast by the former would have a direct influence on the allocation of seats (cf. BVerfGE 7, 63 <74>; 16, 130 <139 f.>; 95, 335 <363>; 131, 316 <362 f.>). In this regard, civil participation rights, of which the right to vote enshrined in Art. 38(1) first sentence GG is considered the ‘most noble right’ conferred upon citizens in a democracy (cf. BVerfGE 1, 14 <33>; 151, 1 <46 para. 106>; 151, 152 <166 para. 37>), are of a formal-egalitarian nature ([...]). It follows that the principle of equal suffrage must be understood as a strict and formal equality guarantee (cf. BVerfGE 121, 266 <295>; 135, 259 <284 para. 44>; 146, 327 <349 f. para. 59>; each with further references). The legitimacy of democratic rule is thus contingent upon the right to participation in the legitimation and exercise of public authority on formally equal terms ([…]). Where this right is violated, elections cannot fully give effect to their function, which is to serve as an integrative process (cf. BVerfGE 95, 408 <418>; 146, 327 <351 para. 62>) for the formation of the political will of the people. Secondly, the legitimising function of elections would be impaired by a violation of the right to equal opportunities for political parties, which the Basic Law recognises as an indispensable element of the free and open process for the formation of the popular will and public opinion (cf. BVerfGE 44, 125 <145>). Such violation would result from the fact that a party gaining uncompensated overhang mandates would be privileged in the distribution of seats as it would require less second votes to win a seat than would be the case for parties that did not gain an uncompensated overhang in constituency mandates (cf. BVerfGE 79, 169 <172>; 95, 335 <359>; 131, 316 <363>).

(b) Taking into account the paramount importance attached to equal suffrage under Art. 38(1) first sentence GG and to equal opportunities for political parties under Art. 21(1) first sentence GG, these considerations carry considerable weight. What is more, the allocation of uncompensated overhang mandates in accordance with § 6 BWahlG, as amended, would effectively impact parliamentary majorities and, as the case may be, these mandates could be decisive for establishing the absolute majority of Bundestag members (so-called chancellor majority) required under Art. 63(2) first sentence GG and Art. 121 GG, or the two-thirds majority required to adopt constitutional amendments under Art. 79(2) GG (cf. only BVerfGE 131, 316 <365>).

(c) At the same time, it can be assumed that the actual impact of the challenged changes to the procedure for the distribution of seats under § 6 BWahlG – if interpreted to the effect that the maximum number of three uncompensated overhang mandates indeed refers to the distribution of seats at federal level and across all parties – would effectively only concern a relatively small number of seats. According to the legislative materials, the expected effect of the amended § 6(5) BWahlG was estimated as leading to a reduction by six seats on the basis of current polls for the upcoming Bundestag elections; estimated as leading to about ten seats on the basis of simulated calculations that took into account 4,000 likely electoral outcomes; and estimated as concerning about 8.6 seats on average ([…]). In its case-law, the Federal Constitutional Court has held that as long as the number of uncompensated overhang mandates does not exceed roughly half the number of mandates needed to form a parliamentary group (cf. BVerfGE 131, 316 <369 f.>), such mandates do not call into question the basic nature of Bundestag elections as conforming to a system of proportional representation. While it is true that in the present case, the amended § 6(5) BWahlG might come to bear on the formation of parliamentary majorities, the scope of its potential impact might not be objectionable under constitutional law (cf. BVerfGE 131, 316 <365>).

(2) (a) Moreover, if the preliminary injunction were not issued but the amended electoral framework, specifically § 6(5) fourth and fifth sentence BWahlG and § 6(6) fourth and fifth sentence BWahlG, did indeed prove to lack sufficient specificity, bodies of the executive branch tasked with implementing the elections would have considerable influence over the distribution of seats after the upcoming Bundestag elections, which would not be compatible with constitutional law. Depending on how the implementing electoral bodies would choose to apply the challenged provisions, the number of uncompensated overhang mandates could exceed the permissible threshold of 15 seats. If it were up to executive authorities whether to recognise a higher or a lower number of uncompensated overhang mandates, the establishment of required parliamentary majorities and the formation of the government would be dependent on discretionary decisions made by the executive branch.

(b) It follows that the implementing electoral bodies could potentially have considerable influence over the electoral results. This would be objectionable under constitutional law, in particular under Art. 38(3) GG according to which it is for the federal legislator to determine the essential features of the electoral system (cf. BVerfGE 95, 335 <349>; 121, 266 <296>; 122, 304 <314>; 124, 1 <19>; 132, 39 <47 ff. para. 25 ff.>; 146, 327 <360 f. para. 82>). The fact that the electoral outcome would to some degree depend on discretionary decisions made by executive bodies would compromise the legitimising function of the elections.

(c) Yet the actual impairment of the legitimising function would be less severe, the fewer uncompensated overhang mandates were actually allowed by the implementing electoral bodies. If the executive branch chose to exert its influence in a manner that limits the allocation of uncompensated overhang mandates to three seats in total, the resulting impairment of electoral functions would be mitigated. In the present situation, it can reasonably be assumed that the implementing electoral bodies will apply the amended electoral framework with the understanding that not more than three uncompensated overhang mandates in total will be allowed ([...]). It appears unlikely that the responsible bodies will apply a different interpretation in the upcoming Bundestag elections.

(3) To the extent that the principal proceedings have prospects of success on the grounds that the amended provisions could violate the requirement that electoral law be sufficiently clear to citizens, this violation could impair the legitimising function of the elections as well. This is because voters are only able to exercise the ‘most noble right’ they have within the democratic state (cf. BVerfGE 1, 14 <33>; 151, 1 <46 para. 106>; 151, 152 <166 para. 37>) if they can sufficiently comprehend how casting their vote influences the distribution of seats. Yet it must be noted that even if the preliminary injunction sought were issued, meaning that the upcoming elections would have to be conducted on the basis of the former statutory regime, a violation of the principle of legal clarity would still not necessarily be ruled out – although the violation would probably be less severe in that case.

(4) In addition, the potential consequences arising from the Court’s rejection of the application for preliminary injunction are mitigated further by the fact that the alleged violations of constitutional law could be challenged by way of an electoral complaint, which could – if successful and depending on the severity of the confirmed electoral errors (cf. BVerfGE 103, 111 <135>; 121, 266 <311 f.>; 129, 300 <345>; 154, 372 <381 f. para. 34>; established case-law) – potentially lead to new elections being ordered (cf. BVerfGE 121, 266 <311>).

(5) [...]

bb) As for the potential consequences arising if the preliminary injunction were issued, the former version of § 6 BWahlG (in force until 18 November 2020) would then have to be applied in the upcoming elections (see (1) below). This could lead to a relative increase in Bundestag seats due to the allocation of additional balance seats to compensate overhang mandates (see (2) below). In this scenario, the legitimising function of the elections could also be impaired, namely in the event that the application for judicial review were later found to be unfounded (see (3) below). Other reasons opposing the preliminary injunction in that scenario are not ascertainable (see (4) below).

(1) Contrary to what was argued by the procedural parties entitled to submit statements in the present proceedings, granting the application for preliminary injunction would not create legal uncertainty as to the applicable law in the upcoming elections. Rather the distribution of seats following the elections would then have to be conducted on the basis of § 6 BWahlG in its former version, i.e. the one applicable before Art. 1 nos. 3 to 5 of the Amendment Act entered into force (hereinafter: former version). This follows from the wording of the application for preliminary injunction, which expressly seeks the suspension of that specific amendment. [...]

(2) If the preliminary injunction were issued, the application of the former statutory regime could potentially lead to a larger Bundestag , due to a greater increase in seats, than would be the case if the preliminary injunction were not issued. This is due to the fact that ‘quasi-overhang mandates’ would then have to be fully compensated by the creation of balance seats under § 6(5) BWahlG (former version).

However, it can be assumed that the actual increase would be quite moderate in the end: According to model calculations conducted in the legislative process, the application of the amended electoral framework in the previous 2017 Bundestag elections would have led to 686 seats as opposed to the current 709 seats that resulted from the (then applicable) former statutory framework ([...]). While it cannot be ruled out that applying the former statutory regime would have a bigger effect in the upcoming elections ([...]), it does not appear realistic that it would lead to a (further) increase in seats of such scale that it would jeopardise the proper functioning of the Bundestag . Therefore, this concern can be disregarded in the weighing of consequences.

(3) (a) However, there are other consequences to be taken into account if the Court issued the preliminary injunction sought but the application for judicial review of the amended electoral framework were later rejected as unfounded. In that scenario, the distribution of seats in the new Bundestag would be contrary to what the legislator intended. If the preliminary injunction sought were issued, to the effect that all overhang mandates would have to be fully offset by balance seats, and if the Court then found that this is not actually required under constitutional law, the injunction would prompt the creation of additional balance seats contrary to what the legislator permissibly intended. This outcome would run counter to Art. 38(3) GG, which specifically puts the federal legislator in charge of designing the electoral framework. In this respect, it must again be noted that this discrepancy would only concern relatively few mandates. Nevertheless, the distribution of seats as mandated by the preliminary injunction would be flawed in that scenario. This would impair the functions of the elections in serving as an integrative process for the formation of the political will of the people and in providing democratic legitimation.

(b) Moreover, if the Court issued the preliminary injunction sought, the effects of such an injunctive order would not be limited to merely creating a provisional legal situation until a decision is rendered in the principal proceedings. According to Art. 39(1) first sentence GG, and without prejudice to the other rules laid down in that article, the Bundestag is elected for four years (cf. also BVerfGE 62, 1 <86>; 114, 121 <148>). Early elections that bring the parliamentary term to a premature end are only permissible based on the exceptional grounds laid down in the Constitution (especially Arts. 67, 68 GG) ([...]). These grounds do not cover the present scenario, i.e. the issuing of a preliminary injunction suspending electoral reforms enacted by the legislator. Besides, if the application for judicial review were later rejected in the principal proceedings, this would not in any case provide grounds for having the elections declared invalid in electoral scrutiny proceedings under Art. 41(1) first sentence and Art. 41(2) GG. This is because the issuing of a preliminary injunction cannot give rise to an electoral error and thus cannot be invoked as a basis for bringing a challenge in electoral scrutiny proceedings (on the substantive interpretation of what constitutes an ‘electoral error’, cf. only BVerfGE 146, 327 <341 para. 38>). The effects of an injunctive order not to apply the amended electoral framework in the 2021 Bundestag elections would therefore last de facto for the entire parliamentary term.

(c) It follows that issuing the injunction sought would amount to a considerable intrusion upon the legislative branch, with no corrective mechanism available to undo its effect if the application for judicial review were later rejected in the principal proceedings. Rather, the new concept for the distribution of seats, as envisaged by the legislator, would effectively be rendered completely inapplicable for the entire duration of the next parliamentary term. In light of the leeway afforded to the legislator in designing the electoral system, this interference with legislative competences carries significant weight. The electoral provisions enacted by the legislator would be entirely suspended for the one event to which they would be applicable, namely the 2021 Bundestag elections. This would prejudice the principal proceedings as it would essentially grant the relief sought there, a concern that must additionally be taken into account in the weighing of consequences at hand ([...]).

(4) Other possible detrimental effects opposing the preliminary injunction sought are not ascertainable in the present case.

(a) In the statement submitted by the Bundestag , concerns are raised that the preliminary injunction sought would selectively cancel individual elements of the legislative compromise laid down in Art. 1 of the Amendment Act. Yet these concerns are without merit as the compromise as such would not be affected even if the distribution of seats following the upcoming elections would be conducted on the basis of the preliminary injunction sought. [...]

(b) It has also been argued that the preliminary injunction sought would change the applicable electoral framework too shortly before the elections, and that this would be objectionable on the grounds of the constitutional protection of legitimate expectations. However, this argument is not capable of establishing sufficiently weighty consequences opposing the injunction.

It is true that legitimate expectations meriting protection include the expectation that amendments to electoral law should allow sufficient time before the electoral date so that political parties can adapt to the new legal situation when deciding on the nomination of candidates (cf. BVerfGE 121, 266 <316>[…]). In the present case, however, such legitimate expectations opposing the preliminary injunction sought are not ascertainable.

It is from the outset hardly plausible that the changes to electoral law set out in Art. 1 nos. 3 to 5 of the Amendment Act would have any bearing on the lawfulness of candidate nominations, which have in any case already been concluded at this point. The amendments in question only concern the distribution of seats following the elections, as well as certain other matters that take place only after the elections. The amendments thus lack any relevance for the preparations undertaken by political parties before the elections.

[...]

(c) Lastly, the Federal Government claims that the preliminary injunction sought would pose problems at the level of implementation. According to the Government, the currently applicable electoral framework has already been relied on as the basis for the information on the legal bases of the elections as provided by the Federal Returning Officer; for electoral publications (manuals) edited by private publishers; and for training materials compiled by the municipalities. Moreover, the Government argues that the electoral software used by the Federal Returning Officer would require further testing in that scenario. However, the Government fails to assert and substantiate to what extent the preliminary injunction sought by the applicants would impose substantial additional burdens and has thus failed to plausibly demonstrate that issuing the preliminary injunction would have detrimental consequences in this regard.

[...]

cc) When weighing the relevant consequences outlined above, the reasons in favour of issuing the preliminary injunction sought do not outweigh the reasons against it.

(1) (a) If the preliminary injunction were not issued but the application in the principal proceedings later proved to be well-founded, this would possibly enable unjustified interferences with equal suffrage. Moreover, the legitimising function of the Bundestag elections might be impaired by the possible creation of uncompensated overhang mandates, or rather the lack of balance seats to offset such mandates, that would result from the application of the challenged provisions. These consequences carry significant weight, given that the legitimation of public authority through elections, by which the exercise of public authority is linked back to the people (cf. BVerfGE 20, 56 <98>; 123, 267 <340>; 131, 316 <335>), is one of the cornerstones of the principle of democracy. Possible overhang mandates could furthermore impact parliamentary majorities, meaning that the legitimation deficit could ultimately be “transmitted” to the Federal Government, which requires the support of the majority in Parliament (cf. in this regard BVerfGE 123, 267 <340>).

(b) By contrast, if the preliminary injunction were issued, this could result in an increase of seats in the Bundestag , albeit only by a small number. It does not seem likely that this would jeopardise the proper functioning of the Bundestag , especially since the present Bundestag , which already comprises 709 seats, has proven to be quite capable of functioning ([…]). Nevertheless, in this scenario the preliminary injunction sought would suspend a statutory amendment to the law governing federal elections even though the amendment was in fact constitutional. As a consequence, a limited number of candidates would be elected to the new Bundestag even though they would not have gained seats had the constitutionally sound amendment of electoral law not been suspended. This outcome would amount to a considerable encroachment upon the competences of the legislator (Art. 38(3) GG). At the same time, it cannot be ruled out that the allocation of additional (balance) seats contrary to the legislative reform could play a decisive role in establishing the majority in Parliament.

(c) The weighing of consequences leads to a similar conclusion with regard to the legitimising function of the elections: If the preliminary injunction were not issued but the application for judicial review were later successful, the election of the next Bundestag and the distribution of seats conducted on the basis of the amended electoral framework would lead to significant legitimation deficits due to the fact that possibly up to three overhang mandates would not be compensated by balance seats; this is all the more significant because these mandates could again impact parliamentary majorities. However, if the preliminary injunction sought were issued but the application for judicial review were ultimately not successful, this would also impair the legitimising function of the upcoming elections. In this case, the preliminary injunction would suspend an amendment to electoral law that was in fact constitutional. This would lead to more balance seats being created to fully offset ‘quasi-overhang mandates’ – seats that too could impact majority relations in Parliament – than would have been the case had the amended (constitutionally sound) electoral framework been applied as intended by the legislator.

(2) Based on these considerations, the potential consequences arising from not issuing the preliminary injunction do not carry sufficient weight to justify the encroachment upon the competences of the legislator, which would potentially be the consequence of issuing the injunction sought.

Generally, the reasons in favour of a preliminary injunction pursuant to § 32(1) BVerfGG must carry such weight that they render the issuing of the injunction indispensable. In the particular case where suspension of a law is sought, the underlying reasons must possess even greater weight (cf. BVerfGE 104, 23 <27 f.>; 122, 342 <361 f.>; 140, 99 <107 para. 12>; 151, 152 <161 para. 24>; established case-law). This is especially true for electoral law as Art. 38(3) GG expressly puts the federal legislator in charge of designing the electoral system and affords significant leeway in that regard (cf. BVerfGE 3, 19 <24>; 59, 119 <124>; 95, 335 <349>; 121, 266 <315 f.>; 131, 316 <335 f.>).

In the present case, reasons that carry sufficient weight to support a preliminary injunction are not ascertainable. The reasons in favour of issuing the preliminary injunction sought do not clearly outweigh the reasons against it, and are thus not capable of justifying the encroachment upon inherent competences of the legislator that would result from the injunction. This is further aggravated by the fact that while the injunctive order might formally only be applicable until the upcoming elections (cf. BVerfGE 151, 152 <172 para. 53>), its effects would de facto persist until the next elections. In designing the electoral system, some interests must always be taken into account and others may permissibly be accommodated (cf. only BVerfGE 95, 335 <349 f.>; 131, 316 <335>; [...]). With regard to these different interests, the legislator has undertaken a balancing that has ultimately found expression in Art. 1 nos. 3 to 5 BWahlG. If the amendment were suspended by a preliminary injunction, this balancing would be disregarded completely. This outcome would only be acceptable if the reasons in favour of the preliminary injunction outweighed the reasons against it to such a degree that no other decision appears tenable. These conditions are not met in the present case. The disadvantages that would arise under constitutional law if the preliminary injunction were not issued but the challenged provisions were later found to be unconstitutional, and the disadvantages that would arise if the preliminary injunction were issued but the application for judicial review were ultimately unsuccessful, are more or less equally weighty. In this respect, it must also be taken into account that according to the materials published by the Federal Returning Officer, which outline how the distribution of seats is to be carried out under the amended Federal Elections Act, only up to three uncompensated overhang mandates in total – in relation to all parties in all the Länder – will be allowed ([...]) in the calculation and establishment of the electoral results (cf. § 42(2) BWahlG, § 78 BWahlO). This approach would further lessen the weight attached to the aforementioned adverse consequences that would arise if the preliminary injunction were not issued ([…]).