Unsuccessful application for a preliminary injunction to prevent legislative bills from being signed into law

Press Release No. 58/2019 of 24 September 2019

Order of 17 September 2019
2 BvQ 59/19

In an order published today, the Second Senate of the Federal Constitutional Court rejected an application for a preliminary injunction submitted by the AfD parliamentary group. The application sought to enjoin the Federal President, until further notice, from countersigning and certifying three laws passed by the Bundestag and promulgating them in the Federal Law Gazette. When these laws came to be voted on in the Bundestag at 1:27 a.m. on 28 June 2019, the applicant had objected that the Bundestag did not have a quorum. The Vice-President of the Bundestag, on behalf of the tripartite Chair of the day’s session (Sitzungsvorstand), dismissed the objection. The applicant contends that it was objectively evident that a quorum was not given and that this shortcoming could thus not be remedied by the Chair’s unanimous affirmation to the contrary. However, the Court held, on the basis of the weighing of consequences as the applicable standard in preliminary injunction proceedings, that a preliminary injunction was not to be issued. In its reasons, the Court stated in particular that the applicant was not at risk of suffering any severe disadvantage if the preliminary injunction were not issued now but the application were successful in subsequent Organstreit proceedings (dispute between constitutional organs). This is in keeping with the principle that the legal protection provided by the Federal Constitutional Court is, in principle, post facto protection, in line with the distribution of competences expressly set out in the Basic Law (Grundgesetz – GG) pursuant to which the Federal Constitutional Court must respect the competence of the Federal President to examine a bill before signing it into law.

Facts of the case:

The Rules of Procedure of the German Bundestag contain provisions on ascertaining the presence of a quorum in the Bundestag. These state that a quorum of the Bundestag exists when more than one half of its members are present at the relevant moment. The rules further state that if, before a vote is taken, a parliamentary group or five per cent of the members of the Bundestag in attendance express doubts as to the presence of a quorum, and its presence is not confirmed unanimously by the Chair, the presence of a quorum or lack thereof shall be ascertained by counting the exact number of votes cast [pursuant to the special “division of the assembly” procedure (Hammelsprung) set out in Rule 51(2) of the Bundestag Rules of Procedure]. The 107th session in the 19th electoral term of the German Bundestag began on 27 June and continued into the early hours of 28 June 2019. The Vice-President of the Bundestag announced agenda items 22a and 22b, the reading of two bills. When the bills were put to the vote at approximately 1:27 a.m., a member of the AfD parliamentary group expressed doubts as to the presence of a quorum. The Vice-President, on behalf of the Chair, responded that the three members of the Chair were in agreement that a quorum was in fact present. The two bills were accordingly put to the vote using the regular procedure, as was a third bill shortly thereafter. All passed with a majority of the votes cast. That same day, 28 June 2019, at the request of the applicant, the Parliamentary Council of Elders (Ältestenrat) considered the Chair’s decision not [to ascertain the presence of a quorum by carrying out the “division” procedure] to count the exact number of votes cast. The President of the German Bundestag thereupon stated in a press release that the Bundestag Presidium was unanimously of the view that the Chair had correctly applied the Rules of Procedure on ascertaining whether a quorum was present.

Key considerations of the Senate:

1. Pursuant to § 32(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the Federal Constitutional Court may, in a dispute – even before principal proceedings have been initiated – provisionally decide a matter 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. Where the Federal Constitutional Court issues a preliminary injunction in Organstreit proceedings, it interferes considerably with the autonomy and core competences vested in other constitutional organs. Therefore, the Court must in principle apply strict standards when determining whether the requirements of § 32(1) BVerfGG are met. It may issue a preliminary injunction only for the purpose of provisionally safeguarding the contested rights of a constitutional organ asserted by the applicant, in order to ensure that these are not rendered meaningless before a decision is taken in the principal proceedings due to the dispute being overtaken by events that cannot be undone. When deciding whether to issue a 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. If the 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. The Federal Constitutional Court has conducted the weighing of consequences required for a decision pursuant to § 32(1) BVerfGG, and has come to the conclusion that the preliminary injunction sought is not to be granted.

2. In its submission, the applicant fails to state, in a manner that would satisfy the substantiation requirements of § 23(1) BVerfGG, which rights vested in a constitutional organ the applicant would seek to uphold in prospective Organstreit proceedings and just who the respondent would be in such a case. Regardless of this, however, the application for a preliminary injunction must in any case be rejected.

3. The applicant would not risk any severe disadvantage if a preliminary injunction were not issued yet the applicant were successful in subsequent Organstreit proceedings. The applicant’s claim that a kind of “constitutional emergency” might result in such a scenario is not convincing. With this objection, the applicant essentially alludes to the difference in potential legal consequences between Organstreit proceedings and judicial review proceedings (Normenkontrolle). In Organstreit proceedings the Federal Constitutional Court merely declares pursuant § 67 BVerfGG whether the contested measure violated the provisions of the Basic Law. In contrast, when a statute is referred to the Court for abstract judicial review, the Court may declare pursuant to § 78 BVerfGG that the statute is void. This does not however give rise to a gap in legal protection for potential applicants in Organstreit proceedings. It is rather a manifestation of the basic constitutional decision enshrined in Art. 93(1) nos. 1 and 2 GG, which provides for one type of proceedings for reviewing the objective constitutionality of laws, and another type of proceedings designed as adversarial-style contentious proceedings serving solely to clarify the relationship between two (or more) constitutional organs in the event of a specific dispute. The competences of the Federal Constitutional Court cannot be extended beyond the scope of this constitutional framework. Regardless of the above considerations, it would not constitute a severe disadvantage to the applicant if laws that were formally unconstitutional were initially to remain in force until the applicant was ultimately granted the relief sought in the principal Organstreit proceedings. Indeed, the Basic Law does not generally provide for any type of a priori review regarding the constitutionality of statutory provisions before they enter into force. The fact that the legal protection provided by the Federal Constitutional Court is in principle post facto protection by way of subsequent review is not only justified by basic democratic considerations regarding the separation of powers, but above all is in line with the distribution of competences expressly contained in the Basic Law, pursuant to which the Federal Constitutional Court must respect the competence of the Federal President to examine a law before certifying it.

4. The applicant’s argument that the preliminary injunction sought was necessary to allow the laws in question to be adopted anew by the Bundestag – adhering to proper procedure with the required quorum present – is also unconvincing. The Bundestag may take a new vote at any time on the laws challenged by the applicant, regardless of whether a preliminary injunction is issued and regardless of whether this Court were to find in subsequent Organstreit proceedings that the rights of the applicant had been violated.