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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
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Abstract of the Federal Constitutional Court’s Order of 6 December 2021, 2 BvR 2164/21 [CODICES]
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AbstractThird Chamber of the Second Senate
Order of 6 December 2021
2 BvR 2164/21
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Headnotes (non-official):
1. The pandemic-related restriction of hotel accommodation in Berlin to guests who are either vaccinated against COVID-19 or have recently recovered from does not aim specifically to restrict the mandate of members of Parliament and therefore does not affect the scope of protection of the right to the free exercise of the office of Member of Parliament (Art. 38(1) second sentence of the Basic Law – Grundgesetz – GG). That right in principle also protects the actual possibility of attending parliamentary sittings. Its scope of application, however, only covers situations in which an action aims specifically to impede or render impossible the exercise of the office of Members of Parliament. Provisions that serve a different purpose and only incidentally and inevitably lead to a factual restriction of the freedom to exercise the office of Member of Parliament do not impinge upon the free exercise of the office of Members of Parliament.
2. The constitutional complaint of several members of Parliament from the Alternative für Deutschland (AfD) party against pandemic-related restrictions on accommodation in Berlin is inadmissible for lack of sufficient substantiation
2a. Given that the complainants failed to exhaust all remedies before the administrative courts, they would have had to substantiate how they were prevented from exercising their offices as Members of Parliament, in particular in light of the fact that no such restrictions on accommodation were in effect in neighbouring Brandenburg.
2b. Furthermore, in view of the scope of application of the right to the free exercise of the office of Members of Parliament, as well as in light of the limits on what can be claimed by Members of Parliament in constitutional complaint proceedings, the complainants would have had to substantiate how the challenged pandemic measures even constituted an interference with protected rights of office of Members of Parliament that could be asserted in a constitutional complaint.
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Summary:
I.
The complainants, who are all members of Parliament belonging to the AfD party, challenged pandemic measures in effect in Berlin, which restrict overnight accommodation in Berlin to persons who are vaccinated COVID-19 or recently recovered from it. The complainants asserted that they do not fulfil the requirements for accommodation and claimed to live outside of Berlin “far away from Parliament”. They asserted that they needed to stay overnight in Berlin on two consecutive nights in order to attend the election of the Federal Chancellor by the Federal Parliament at 9am, followed by a plenary sitting of Parliament the next day, followed by “a very important meeting” of the AfD parliamentary group on the third day.
The complainants claimed that the accommodation restrictions hindered their attendance of Parliament, and thus interfered with the right to the free exercise of their office (Art. 38(1) second sentence GG).
II.
Based on the considerations outlined in the headnotes above, the Federal Constitutional Court did not admit the constitutional complaint for decision on grounds of inadmissibility.
The Court stated that the complainants did not sufficiently substantiate how their complaint satisfies the principle of subsidiarity: they neither showed how their complaint is of general significance, nor how they were at risk of suffering severe and unavoidable disadvantage if they were first required to seek remedy before the administrative courts.
Furthermore, the Court held that the violations of fundamental rights claimed by the complainants were also not sufficiently substantiated. In particular, the complainants did not sufficiently demonstrate how an interference with the office of a Member of Parliament can be challenged in constitutional complaint proceedings. Further fundamental rights violations were also asserted in general terms without any further substantiation.
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