Unsuccessful application in Organstreit proceedings on the right to nominate candidates in elections for Vice-President of the Bundestag

Press Release No. 25/2022 of 22 March 2022

Judgment of 22 March 2022
2 BvE 2/20

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court rejected an application in Organstreit proceedings (dispute between constitutional organs) concerning the question whether Art. 38(1) second sentence of the Basic Law (Grundgesetz – GG) grants individual members of the Bundestag the right to nominate their own candidates in elections for Vice-President of the Bundestag in the second round of voting and to have such nominations voted upon.

Prior to a Bundestag sitting in November 2019, the applicant gave notice that in addition to the Bundestag member already nominated by his parliamentary group, he wished to nominate another Bundestag member for election as Vice-President in the second round of voting. In the sitting itself – following an announcement by the Bundestag President – the Vice-President chairing the sitting rejected the applicant’s proposal as inadmissible on the grounds that individual Bundestag members are not entitled to nominate candidates. The Second Senate decided that individual Bundestag members do in principle have a right under Art. 38(1) second sentence GG to nominate their own candidates in elections held by the Bundestag, with restrictions of this right being permissible only in order to protect constitutional interests of equal value and only in accordance with the principle of proportionality. In light of these considerations, there is sufficient constitutional justification for the rejection of the applicant’s proposal. The rejection is based on Rule 2(1) second sentence of the Rules of Procedure of the German Bundestag (Geschäftsordnung des Deutschen Bundestages – GO-BT), which the respondent – in determining that candidates may only be nominated by parliamentary groups – interpreted in a tenable manner that is not objectionable under constitutional law.

Facts of the case:

The applicant has been a member of the Bundestag since 2017 and belongs to the parliamentary group of the party Alternative für Deutschland (AfD). During the last parliamentary term, the AfD parliamentary group unsuccessfully proposed several of its members for election as Vice-President of the Bundestag.

At the sitting of the Bundestag on 26 September 2019, a candidate nominated by the AfD parliamentary group failed to obtain the required majority in the first round of voting. For the sitting on 7 November 2019, the election of a Bundestag Vice-President was again placed on the agenda – this time for a second round of voting. The AfD parliamentary group nominated the same Bundestag member as before. The applicant gave written notice that he wished to nominate a further Bundestag member for election as Vice-President. The President of the Bundestag at the time (the respondent in these proceedings) informed the applicant that the proposed nomination would not be accepted. After the agenda item was called, the applicant was given the floor to raise a point of order and stated his reasons for putting forward the nomination. However, the Vice-President chairing the sitting rejected the proposal as inadmissible on the grounds that individual Bundestag members are not entitled to nominate candidates for Vice-President.

The applicant claims that the rejection of his proposal violated his right as a Bundestag member to equal participation in the parliamentary decision-making process under Art. 38(1) second sentence GG.

Key considerations of the Senate:

The application is unfounded.

I. In Organstreit proceedings, the Basic Law is the only standard by which the Federal Constitutional Court reviews the case in question. Provisions appearing solely in the Bundestag Rules of Procedure adopted pursuant to Art. 40(1) second sentence GG are not part of the standard of constitutional review.

II. According to Art. 38(1) second sentence GG, members of the Bundestag are representatives of the whole people, not bound by orders or instructions and responsible only to their conscience. This provision protects not only the existence of the mandate exercised by Bundestag members, but also its actual exercise. The independent mandate of Bundestag members gives rise to extensive status rights. The scope of protection of Art. 38(1) second sentence GG covers all the elements involved in the parliamentary decision-making process. Under this provision, the equal status enjoyed by Bundestag members and their participation rights are legally and comprehensively guaranteed. In principle, the provision is also applicable to decisions concerning the internal organisation of the Bundestag, including any elections necessary in this regard.

III. Like the other status rights, the right to equal participation in the formation of the political will under Art. 38(1) second sentence GG is not guaranteed without limitation. However, the participation rights of Bundestag members may only be restricted if this serves to protect constitutional interests of equal value and adheres to the principle of proportionality. The proper functioning of Parliament (i.e. the Bundestag) is one such constitutional interest of equal value.

Art. 40(1) second sentence GG grants Parliament the power – within the framework of the constitutional order – to autonomously shape its internal affairs and to organise itself in such a way that it can function effectively. In this respect, the Bundestag is entitled to lay down specific rules governing how its members participate in the parliamentary decision-making process. It enjoys considerable leeway in terms of deciding what rules are necessary to ensure that its internal organisation is effective and its business is properly conducted. But despite the broad autonomy it enjoys in adopting its own procedural rules, the Bundestag may only encroach on the equal status of its members if the encroachment is suitable, necessary and appropriate to guarantee the effective functioning of the Bundestag or to protect other constitutional interests of equal value.

IV. How the Rules of Procedure are given shape and implemented by the Bundestag (or by Bundestag organs entrusted with such tasks) is only subject to limited review by the Federal Constitutional Court. In terms of how the Rules of Procedure are interpreted and applied, the Court merely examines whether the interpretation or application is obviously unreasonable, basing its review on the principle of fair and good-faith application – which must be observed in the context of Art. 38(1) second sentence GG – and on the recognised methods of interpretation. If this is not the case (i.e. if the Rules are not found to have been interpreted and applied in an obviously unreasonable manner), the Court must furthermore examine whether any interference with the right of Bundestag members to participate equally in the parliamentary decision-making process resulting from the Bundestag’s own interpretation and application of its Rules of Procedure satisfies the constitutional requirements applicable to interferences with Art. 38(1) second sentence GG.

V. Based on these standards, the application is unfounded.

1. The right under Art. 38(1) second sentence GG of individual Bundestag members to put forward their own nominations for elections held by the Bundestag is in keeping with the overall concept of the independent mandate exercised as the second stage in the democratic process of forming the political will. In principle, therefore, the right of individual members to nominate their own candidates for Vice-President of the Bundestag falls within the scope of protection of Art. 38(1) second sentence GG.

2. Nonetheless, the restriction of this right resulting from the rejection of the applicant’s proposal is sufficiently legitimated under constitutional law. It is based on Rule 2(1) second sentence GO-BT, which states that each parliamentary group must be represented on the Presidium by at least one Vice-President. Provisions concerning the right to nominate candidates for the Presidium fall within the scope of the Bundestag’s autonomy in adopting its own procedural rules. It is true that the Rules of Procedure do not contain any provisions explicitly governing the right to nominate candidates. The respondent did however cite Rule 2(1) second sentence GO-BT when rejecting the applicant’s proposal, contending that this provision limits the right to nominate candidates for Vice-President to parliamentary groups. This is not objectionable under constitutional law. There is no need to decide here whether the respondent’s interpretation of Rule 2(1) second sentence GO-BT is the only tenable interpretation of that provision. The interpretation does not in any case appear obviously unreasonable. There is nothing to indicate that the respondent violated the principle of the fair and good-faith application of the Rules of Procedure.

3. The interference with the independent mandate exercised by members of the Bundestag resulting from this interpretation of Rule 2(1) second sentence GO-BT is justified under constitutional law. The provision serves to protect a constitutional interest of equal value. Its purpose is to ensure that all parliamentary groups are represented within the Bundestag’s governance structures. Irrespective of their duty to remain impartial when chairing sittings, the Vice-Presidents are supposed to act as conduits for the ideas and interests of their respective parliamentary groups, while also garnering support within those groups for the organisational decisions that have to be taken in order for the Bundestag to perform its tasks. Ensuring that each parliamentary group is represented with a Vice-President is therefore intended to help maintain the proper functioning of the Bundestag.

4. The interference with the applicant’s independent mandate is suitable, necessary and appropriate to maintain and reinforce Parliament’s ability to function properly.

a) It is obvious that allowing just the parliamentary groups represented in the Bundestag to nominate candidates for Bundestag Vice-President can serve to strengthen the willingness among the different groups to reach agreement and find compromise with one another, thereby improving the Bundestag’s ability to function properly. Even if individual Bundestag members were only entitled to nominate candidates if they were themselves members of the parliamentary group to be represented, this would still be less effective at guaranteeing the strong connections linking the parliamentary groups with Parliament’s governance structures and the associated possibilities for reaching agreement and compromise between the groups than in a scenario where only the parliamentary groups are entitled to nominate candidates. In the former scenario, it could not be ruled out that a Bundestag Vice-President nominated by an individual Bundestag member would be elected despite not commanding the trust of the parliamentary group in question – or at least not entirely. This issue becomes even more pertinent if, as in the present case, an individual Bundestag member proposes a separate candidate in addition to the candidate put forward by the parliamentary group.

b) Excluding individual Bundestag members from the possibility of nominating their own candidates for election as Bundestag Vice-President in the plenary is only a minor restriction of their right to participate in the parliamentary decision-making process. Bundestag members are still free to promote a particular candidate within their own parliamentary group and to campaign for that candidate to be selected as the group’s own nominee. The participation of Bundestag members in the election itself remains unaffected. The minor encroachment on the participation rights of individual Bundestag members arising from limiting the right to nominate candidates to (parliamentary) groups must be balanced against Parliament’s considerable interest in achieving the objectives pursued with the “minimum representation” provision of Rule 2(1) second sentence GO-BT – namely the objectives of linking the parliamentary groups into the governance structures of the Bundestag and of mobilising the associated possibilities for coordination and agreement. Against this backdrop, excluding individual Bundestag members from the right to nominate candidates for election as Bundestag Vice-President is appropriate.