Unsuccessful application in Organstreit proceedings of the AfD parliamentary group regarding the election of a Vice-President of the Bundestag

Press Release No. 26/2022 of 22 March 2022

Order of 22 March 2022
2 BvE 9/20

In an order published today, the Second Senate of the Federal Constitutional Court rejected an application by the AfD parliamentary group in the German Bundestag in Organstreit proceedings (dispute between constitutional organs) challenging the fact that none of its members were elected as a Vice-President of the 19th German Bundestag. In this context, the application contended that the Bundestag has no procedural provisions in place to protect against the failure to elect a candidate on unreasonable grounds.

In the previous parliamentary term, the applicant unsuccessfully proposed six of its members as candidates for Vice-President of the Bundestag. The Second Senate held that the failure to elect each of the proposed members was clearly not a violation of the applicant’s legal right to equal participation in the parliamentary decision-making process under Art. 38(1) second sentence of the Basic Law (Grundgesetz – GG). With regard to an election of the President of the Bundestag and their deputies (Vice-Presidents) pursuant to Art. 40(1) first sentence GG, there is no constitutional obligation on the part of the Bundestag to adopt procedural provisions to promote an election result in favour of the applicant.

Facts of the case:

In its constituent meeting on 24 October 2017, the 19th German Bundestag, with the votes of the parliamentary groups CDU/CSU, SPD, FDP, DIE LINKE and BÜNDNIS 90/DIE GRÜNEN and against the votes of the applicant’s members, decided in favour of the continued application of the previous Rules of Procedure of the German Bundestag (Geschäftsordnung des Deutschen Bundestages – GO-BT), including Rule 2 thereof. This rule provides for the election of the President of the Bundestag and their deputies (Vice-Presidents), with each parliamentary group of the German Bundestag being represented by at least one Vice-President on the Presidium (so-called minimum representation). At the request of all of the parliamentary groups, the Bundestag also set the total number of deputies to the President at six. For all parliamentary groups – with the exception of the applicant – the proposed members were elected as deputies to the President of the Bundestag in the first round of voting in the constituent meeting. The candidate proposed by the applicant did not receive the required majority in any of the three rounds of voting. Over the course of the parliamentary term, the applicant subsequently proposed five other members, none of which achieved the required majority in any of the three rounds of voting carried out for each candidate.

The applicant asserts a violation of its rights under Art. 38(1) second sentence GG, its right to a fair and good-faith application of the Rules of Procedure and a violation of the principle of good-faith cooperation between constitutional organs (Organtreue).

Key considerations of the Senate:

The application in Organstreit proceedings is manifestly unfounded.

A. The failure to elect the applicant’s proposed members is clearly not a violation of the applicant’s legal right to equal participation in the parliamentary decision-making process under Art. 38(1) second sentence GG.

I. As a parliamentary group in the German Bundestag, the applicant is an association of members of the Bundestag whose legal status – like the status of the individual members – is derived from Art. 38(1) second sentence GG. In this context, the principle of equal treatment of parliamentary groups applies. Accordingly, pursuant to Art. 38(1) second sentence GG, parliamentary groups have the legal right to equal participation in the parliamentary decision-making process. In principle, this right also applies to access to the Presidium of the Bundestag, which is comprised of the President and their deputies.

II. However, the scope of this right of participation is limited by virtue of the election process which is provided for in Art. 40(1) first sentence GG. The right of a parliamentary group to equal consi-deration in the composition of the Presidium is subject to an election by the members of the Bundestag and, therefore, can only be implemented if the candidates proposed by the parliamentary group achieve the required majority.

1. Pursuant to Art. 40(1) first sentence GG, the Bundestag elects its President and their deputies. Thus, the Basic Law expressly provides for an election rather than a right to direct appointment of a parliamentary group’s proposed candidate to the Presidium independent of an election. There are no further express constitutional requirements for this election. The election procedure itself is therefore an internal parliamentary matter, which the Bundestag can organise autonomously within the framework of the constitutional order. In this regard, elections pursuant to Art. 40(1) first sentence GG are free. The legitimacy normally associated with an election could not be achieved if there was an obligation to elect a specific candidate. In principle, the election process is not subject to any judicial review outside of procedural error, which is why the election result does not require any reasoning or justification.

2. A free election is in accordance with the independent mandate exercised by all members of the Bundestag pursuant to Art. 38(1) second sentence GG and the principle of democracy pursuant to Art. 20(1) and (2) GG. Any measure that would directly or indirectly oblige a Bundestag member to disclose or justify their intended or actual vote in an election would be untenable. It is also unclear which “procedural safeguards” would be suitable to ensure that a candidate is not rejected on unreasonable grounds without encroaching on the freedom of Bundestag members to vote independently. If a parliamentary group could insist upon the selection of its proposed candidate as a Vice-President – either by means of the “procedural safeguards” sought by the applicant or by a right of direct appointment – the election would be rendered meaningless. The claimed right of a parliamentary group to a certain election result therefore is precluded by the constitutionally-required election of deputies pursuant to Art. 40(1) first sentence GG and the protected independent mandate of the members with respect to such election.

3. The existence of a right of a parliamentary group under Art. 38(1) second sentence GG to control and restrict an election pursuant to Art. 40(1) first sentence GG by means of “procedural safeguards” (which are not specified by the applicant) can therefore be ruled out. This applies all the more to a claim to procedural requirements which would transform an election into a de facto right of appointment for the parliamentary groups. The right of a parliamentary group to equal participation and treatment with respect to the composition of the Presidium is subject to the constitutionallyrequired election. Such right is limited to the parliamentary group’s ability to propose a candidate for election and to have the free election be duly conducted. If the parliamentary group’s initial proposed candidate is unsuccessful, then the deputy position remains vacant until a candidate proposed by the parliamentary group concerned achieves the required majority of votes.

III. The Rules of Procedure of the Bundestag, which are subordinate to the Basic Law, are in line with these constitutional requirements. Rule 2(1) second sentence GO-BT provides for the Presidium to be filled with at least one Vice-President from each parliamentary group. The minimum representation provision of Rule 2(1) second sentence GO-BT provides for representation of all parliamentary groups in the governance structures of Parliament. However, appointment to the position of Vice-President is subject to an election by the members of the Bundestag. Rule 2(1) first sentence GO-BT does not contain any substantive provisions relating to the election process. The minimum representation under § 2(1) second sentence GO-BT therefore is not designed as an unconditional right for each parliamentary group to have its proposed candidate be appointed as a Vice-President, independent of an election, but as a right to nominate a member for election. This is within the constitutional limits that Art. 40(1) first sentence GG imposes on the parliamentary group’s right to equal participation under Art. 38(1) second sentence GG. The respondent’s practice of voting on the applicant’s nominations in a free election therefore corresponds to an interpretation of its Rules of Procedure that upholds constitutional requirements.

B. A violation of a right to effective opposition is likewise clearly ruled out. The Basic Law contains a general constitutional principle of effective opposition, which has been further defined in the case-law of the Federal Constitutional Court. However, the constitutional protection of political minorities does not aim to protect them from majority decisions and the results of free elections. Furthermore, the members of the Presidium and the Council of Elders are obliged to exercise their office impartially. The President of the Bundestag and their deputies must exercise their office with the greatest possible restraint as to party politics.

C. There is also no legal position based on the principle of good-faith cooperation between constitutional organs that the applicant could invoke in the present proceedings. The dealings of members of the Bundestag with one another are informed by the provisions of the Rules of Procedure and the principle of the fair and good-faith application of such rules. There are no indications that the handling of the applicant’s right of nomination violated the principle of equality or that the electoral process was carried out unfairly or in bad faith, and therefore also no indications that the respondent interpreted and applied Rule 2(1) and (2) GO-BT in an unconstitutional manner. There is no basis for a more expansive application of the principle of good-faith cooperation between constitutional organs.