CDU/CSU parliamentary group partially successful in the proceedings concerning the Committee of Inquiry Investigating Donations to Political Parties

Press Release No. 44/2002 of 08 April 2002

Judgment of 8 April 2002
2 BvE 2/01

The Second Senate of the Federal Constitutional Court held in a judgment pronounced today that certain decisions taken by the Parliamentary Committee of Inquiry Investigating Donations to Political Parties (Parteispendenuntersuchungsausschuss) violated Art. 44(1) sentence 1 of the Basic Law (Grundgesetz – GG). CDU/CSU Committee members had challenged the Committee’s decisions to reject their motions to take evidence and its decisions to refrain from actually taking evidence that it had already decided to consider.

Information on the background to the case is given in Press Release no. 29/2002 of 7 March 2002 (in German). 

The Federal Constitutional Court gave the following reasons for its judgment in the principal proceedings: 

I. 

1. The applications are for the most part admissible. The CDU/CSU parliamentary group (applicant no. 1) and its representatives on the Committee (applicant no. 2) may be parties to legal proceedings and have standing. They may claim in Organstreit proceedings (dispute between constitutional organs) that minority rights deriving from Art. 44(1) first sentence of the Basic Law have been violated. 

2. Art. 44(1) first sentence GG grants rights to take evidence to a qualified minority on the Committee. The fact that Art. 44(1) first sentence GG is a provision primarily intended to protect the opposition in a parliamentary democracy from the government and from the governing majority is already evident from the requirement that a parliamentary committee of inquiry must be constituted on the motion of (merely) one quarter of the members of the Bundestag. This protection (‘minority protection’) applies throughout the committee’s proceedings. Although the principle of majority rule remains valid, the members of a parliamentary group which is entitled to establish a committee of inquiry must be given a reasonable say in the taking of evidence within the committee’s mandate. 

A qualified minority also enjoys this right in a parliamentary committee of inquiry established on the motion of the parliamentary group that enjoys a majority in the Bundestag (majority inquiry). If this were not the case, the opposition would have to submit its own motion to establish a committee whenever a majority inquiry were held, and there would have to be two committees on the same issue. This would not be conducive to the efficient functioning of parliament. The minority that is potentially entitled to establish a parliamentary committee of inquiry therefore retains the procedural rights contained in Art. 44 GG even if it initially voted against establishing the committee in question. The minority must nonetheless be able to influence the taking of evidence in order to ensure that the subject under investigation is examined in what it considers to be a balanced way.

Accordingly, the minority’s motions to hear evidence must be granted, unless they are unreasonable or manifestly constitute an abuse of process. This may be the case if the motion pertains to evidence that goes beyond the committee’s mandate or if it is unlawful, if its sole purpose is to delay proceedings, or if it manifestly constitutes an abuse in some other way. A motion to hear evidence may not be rejected merely on the basis of the principle of majority rule enshrined in Art. 42(2) GG; rather, valid reasons must always be given. Due to parliamentary independence and the special nature of committees of inquiry, the Court may only review whether the reasons given by the majority were comprehensible and if the discretion stemming from the majority’s procedural autonomy was exercised in a reasonable manner. The Court may hold that this was not the case if the reasons given for rejecting a motion do not show that it was unreasonable, or if the majority’s interpretation of the committee’s mandate cannot be supported using legal methodology. 

3. Where the committee has decided to take evidence, it must as a general rule put this decision into practice. It is the majority in the committee that in principle has the procedural power to determine the schedule for the taking of evidence. However, the minority’s right to reasonable participation must be preserved within these limits. If it is not possible for all decisions to take evidence to be implemented, the majority must ensure, by applying appropriate procedural rules, that reasonable consideration is given to the minority. 

II. 

On the basis of these standards, the following applies to the matters raised by the applicants: 

1. The Committee was entitled to refrain from implementing the decisions taken, with one exception. Federal Chancellor Schröder did not have to appear as a witness because of procedural defects in the motion regarding his questioning on the Leuna/Minol issue, as the Senate explained in detail. The Committee majority was further entitled to refrain from formally questioning a parliamentary state secretary and a former head of a federal institute as witnesses, since they had both already been interviewed less formally. The fact that the decision to take evidence from the former SPD federal treasurer was not implemented is unobjectionable, as is the failure to interview the SPD Executive Committee’s financial adviser and auditor. In these cases, the original decision had been overtaken by events. In contrast, the reasons given by the Committee majority for refraining from questioning Federal Finance Minister Eichel in spite of its decision to call him, do not meet the constitutional requirements. 

2. Having regard to the rejection of various motions to take evidence submitted by the CDU/CSU members of the Committee, the Court holds that the motion concerning evidence about a major donation from Federal Justice Minister Däubler-Gmelin was unfounded; however, as regards the other four issues, the Committee minority’s rights had been violated by the rejection of the motions. These motions were related to assets held by the SPD and their listing in the financial report. The Court sets out in detail just how the reasons given by the Committee majority when rejecting these motions did not meet the constitutional requirements. 

3. The decision of 15 November 2001 was not of itself unconstitutional. However, in the future the Committee will have to ensure that decisions designed to conclude the evidentiary stage of proceedings are taken in compliance with rules that enable both the majority and the qualified minority to hear enough of the evidence that they each consider absolutely necessary. When time is limited, especially towards the end of the electoral term, the Committee must adopt rules governing how the Committee majority and minority can both be provided reasonable opportunity to obtain the evidence they seek. Motions to hear evidence submitted by the minority must not be given so little priority when scheduling hearings that they suffer when the evidentiary phase has to be concluded due to time pressure. Where fair procedural rules apply, however, both the majority and the minority can be expected to forsake some of the evidence they still wanted to hear, if this is the only way in which the Committee’s final report can be submitted to the plenary on time. 

III. 

In this judgment, the Federal Constitutional Court did not decide that the evidence which had been unjustly rejected had to be heard. This is a matter for the Committee, to be determined taking into account the applicants’ rights as set out by the Court. It also has to take into account whether new circumstances make it necessary to set new priorities. Even so, however, it remains imperative for the Committee to choose a procedure that ensures the interests of the majority and the minority are reasonably balanced.