On the recognised interest in seeking legal recourse as an admissibility requirement in disputes between constitutional organs

Press Release No. 63/2019 of 08 October 2019

Order of 17 September 2019 - 2 BvE 2/18 - Fine imposed against a member of the Bundestag

Where an applicant in Organstreit proceedings (disputes between constitutional organs) seeks to challenge disciplinary measures imposed by the chairperson of the Bundestag parliamentary session for the purposes of maintaining order (i.e. call to order, fine, or expulsion from the parliamentary session), recourse to the Federal Constitutional Court is only admissible if the applicant first unsuccessfully lodged an objection (Einspruch) as provided for in the Bundestag Rules of Procedure. This is what the Second Senate of the Federal Constitutional Court decided in an order published today, dismissing as inadmissible an application filed by a member of the Bundestag. In its reasons, the Court stated that an applicant who remained passive even though they would have had opportunity to prevent, through their own timely intervention, the rights violation they now challenge in Organstreit proceedings lacks the necessary legal interest to bring proceedings. The Court clarified that it does not mean to restrict access to its proceedings by merely referring the applicant to general political alternative courses of action. Indeed, unspecific political courses of action are to be distinguished from courses of action governed by normative rules that are specifically designed to specify, shape and clarify the relevant relationship between constitutional organs

Facts of the case:

After the inaugural session of the 19th term of the German Bundestag, the election of the Federal Chancellor was scheduled as the first agenda item for the 19th parliamentary session held on 14 March 2018. Before the members of the Bundestag proceeded to cast their votes, the President of the Bundestag, as chairperson of the session, provided a detailed explanation of the election rules and procedure. The Federal Chancellor received the necessary majority of votes and was subsequently sworn into office. Immediately after this, the President of the Bundestag (respondent) declared: “Before we go into recess, I would like to address the following matter: Mr Petr Bystron, Member of the Bundestag, took a picture of his ballot paper and his electoral ID inside the voting booth, and then proceeded to publish that picture. In doing so, he deliberately violated the principle of secret elections. Mr Bystron, for this serious breach of parliamentary order and for failing to respect the dignity of the Bundestag, you are hereby fined EUR 1,000, in accordance with § 37 of the Rules of Procedure.”

By his own account, as per his application brief, the applicant took a picture of his parliamentary ID together with his filled-in ballot paper from inside the voting booth, which he then published on his Twitter account with the caption: “Not My Chancellor”. Despite the disciplinary action taken against him, his vote was not declared invalid. The applicant did not lodge an objection against the fine. By written notification of 21 March 2018, the administration of the German Bundestag declared vis-à-vis the applicant that the amount of EUR 1,000 would be set off against his parliamentary allowance.

Key considerations of the Senate:

1. The application to declare that the respondent’s imposition of the fine violated the applicant’s rights under Art. 38(1) second sentence of the Basic Law (Grundgesetz – GG) is inadmissible. The applicant lacks a recognised legal interest (Rechtsschutzbedürfnis) in bringing Organstreit proceedings. As in other court proceedings, the Court will only decide on the merits of an application in Organstreit proceedings, if the constitutional organ filing the application has a recognised legal interest in seeking legal protection. Organstreit proceedings constitute an adversarial dispute between parties, involving an applicant and a respondent. This type of proceedings primarily serves to delineate the competences between constitutional organs or their constituent parts in a relationship governed by constitutional law. A recognised legal interest in bringing proceedings exists if, and for as long as, the parties are actually in dispute about the asserted rights violation. To establish the necessary interest in bringing proceedings, it is not always sufficient for the applicant to merely substantiate the asserted violation of, or immediate danger to, their own rights or the rights and duties of the constitutional organ to which the applicant belongs. At the same time, when the Federal Constitutional Court is seized of an Organstreit application, it is not for the Court to decide whether the applicant could have chosen other means of recourse under constitutional law to realise the aims pursued in the initiated proceedings, nor whether those other options might still be available to the applicant. It is therefore most certainly not for the Court to refer the applicant to purely political courses of action that are by no means equivalent to Organstreit proceedings, neither in terms of constitutional law nor in terms of procedure. By contrast, is has long been established that where the applicant remained passive even though they would have had opportunity to prevent, through their own timely intervention, the very rights violation they now seek to challenge, it is doubtful that they have a recognised legal interest in bringing Organstreit proceedings; in such a case, it is incumbent upon the applicant to take such available steps as might help achieve their aim. The Court clarified that it does not mean to restrict access to its proceedings merely by referring the applicant to general political courses of action. Indeed, unspecific political courses of actions are to be distinguished from courses of actions governed by normative rules that are specifically designed to specify, shape and clarify the relationship between constitutional organs.

2. Based on these standards, an applicant seeking to challenge disciplinary measures imposed by the chairperson of the parliamentary session for the purposes of maintaining order (i.e. call to order, fine, or expulsion from the session) must first lodge an objection as provided for in the Bundestag Rules of Procedure, prior to filing an application with the Court; only in the event of an unsuccessful objection may the applicant seek recourse to the Federal Constitutional Court. This objection procedure is of a different quality than other, purely political means of action at the applicant’s disposal.

a) In relation to members of the Bundestag, the constitutional basis for the power to maintain order derives from Parliament’s autonomy in adopting its own rules of procedure under Art. 40(1) second sentence GG, which may include rules governing the maintaining of order. The autonomy in adopting its own rules serves to ensure the functioning of Parliament within the constitutional state order. The subject matters that may be regulated in the rules of procedure concern the internal business of Parliament, in particular its organisation, procedures, and disciplinary matters. The Bundestag, as the collective whole of its members, is the original holder of the power to maintain order. This principle is reflected in § 39 of the Bundestag Rules of Procedure, according to which it is the Plenary of the Bundestag – and not just its President – that decides on objections lodged against disciplinary measures. The Bundestag has delegated the exercise of its power to maintain order to the President chairing parliamentary sessions (§ 7(1) second sentence of the Bundestag Rules of Procedure), who exercises this power independently and on their own authority during sessions of the Plenary in accordance with §§ 36 to 41 of the Bundestag Rules of Procedure.

The possibility of lodging an objection under the Rules is considered to be a legal remedy. While it does not have suspensive effect, an objection is generally regarded as an application for relief sought before a “higher instance”, by which the affected member of the Bundestag seeks a review by the Bundestag plenary – the original holder of the power to maintain order – of the disciplinary measure imposed against them. This sets the objection procedure apart from other political or parliamentary courses of action that do not have any express normative basis.

b) The Court does not share the applicant’s legal view, which is partly supported in legal scholarship, that an objection constitutes a superfluous legal remedy as it neither lessens the workload of the Court nor provides for an opportunity of effective review. It is true that the objection procedure generally has very little prospects of success in the parliamentary stage and thus does not substantially contribute towards lowering the number of subsequent proceedings before the Court. However, from a normative perspective (as the relevant point of reference for the Court), the objection was designed as a mechanism for confrontation, provided for in Parliament’s very own rules of procedure, that at least has the potential for clarifying the relationship governed by constitutional law that is at dispute between the parties.

Likewise, even though the effectiveness of the objection procedure for the purposes of ensuring an effective review and providing Parliament with the opportunity to correct its mistakes is questioned by some, the Court, here too, does not share this view. With the exception of retrospective disciplinary measures, the chairperson’s decision to impose such measures will generally be taken at short notice, in immediate response to the specific situation that prompted the measure, as was also the case here. By contrast, the objection will only be decided on in the next plenary session. The formalised nature of the objection procedure in itself has a decelerating effect that affords Parliament the opportunity to reflect and the possibility of review.

c) It must also be taken into account that the requirement to lodge an objection has a legitimising function with a view to resolving inherent tensions in the relationship between Parliament and its members, specifically between parliamentary autonomy and the rights conferred upon individual members of Parliament. Where the President of the Bundestag exercises the power to maintain order and discipline, this power derives from Parliament’s autonomy in making its own rules of procedure as guaranteed in Art. 40(1) second sentence GG. The holder of this power is ultimately the Plenary of the Bundestag itself. However, this power is conferred by the Parliament to the chairperson of the parliamentary session, who exercises it independently and under their own responsibility, pursuant to the provisions of the Rules of Procedure. This is therefore a delegation of powers, which in turn creates a new and independent competence for the delegatee. Thus, it makes sense that a member of the Bundestag who is called to order, fined, or expelled from the session, would be entitled to lodge an objection with the Bundestag pursuant to § 39 of the Bundestag Rules of Procedure. The fact that the objection is decided on by the Plenary of the Bundestag shows that the Bundestag remains the true holder of the power to maintain order. This power is a matter that traditionally falls under Parliament’s autonomy in adopting its own rules of procedure. It is a power that is not fully conferred upon the President of the Bundestag in the sense of an original competence; rather, the President is only “entrusted” by the Bundestag to exercise this power vis-à-vis its members within the context of a parliamentary session. Accordingly, the Plenary is not subject to any restrictions when deciding on an objection; most notably, it is not bound by the prior decision of the President of the Bundestag. Its decision on the objection is the rightfully autonomous decision of the Plenary and an essential element of the parliamentary discourse and opinion-forming process.

d) Lastly, underlining the relevance of the parliamentary objection procedure, also in regard to constitutional dispute proceedings, is the significance of the legal interest that all disciplinary measures against which an objection can be lodged seek to protect: the order and dignity of the Bundestag. As undefined legal concepts, the order and the dignity of the Bundestag are open to new developments in society and their mirroring in the parliamentary sphere, as an expression of the identity of the Bundestag which itself continues to evolve and change, and thus lend themselves to dynamic interpretation. It is therefore all the more imperative that Parliament in its entirety is called upon to determine whether the appraisal by the President of the Bundestag – to whom the power to maintain order is delegated as part of Parliament’s autonomy in adopting its own rules – is in keeping with the political will.

Consequently, it can be expected of a member of the Bundestag to challenge formal disciplinary measures in the objection procedure, which the Rules of Procedure provide as the admissible remedy in such cases, and to seek recourse to the Federal Constitutional Court only in the event that the objection is unsuccessful. This is the only way to ensure that the internal process of parliamentary decision-making and discourse is fully and truly concluded. In this sense, procedural law also serves to enable and strengthen parliamentary reflection: to the extent that the parliamentary process guarantees public access to debate and decision-making, pursuant to Art. 42 GG, it allows for a balancing of conflicting interests and furthers the opinion-forming process in relation to the members of the Bundestag, which are placed in a position that allows them to take responsibility for their decision. Where conflict arises with regard to the self-defined identity of Parliament, it should primarily be dealt with by and within Parliament itself, provided that there are mechanisms for finding consensus and resolving disagreements based on established rules. The system of measures for maintaining order set out in § 36 et seq. of the Bundestag Rules of Procedure and the corresponding objection procedure set out in § 39 of the Rules meet this standard.