Federal Government should have notified Parliament as early as possible about the crisis management concept for military operation ‘EUNAVFOR MED Operation Sophia’

Press Release No. 83/2022 of 26 October 2022

Judgment of 26 October 2022
2 BvE 3/15, 2 BvE 7/15

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court held that the Federal Government violated participation rights of the German Bundestag under Art. 23(2) second sentence of the Basic Law (Grundgesetz – GG). Firstly, the Federal Government failed to notify the Bundestag comprehensively and as early as possible regarding the draft of a crisis management concept for ‘EUNAVFOR MED Operation Sophia’, an EU military operation in the Mediterranean. Secondly, the Federal Government failed to plausibly demonstrate that a letter of 23 September 2015 from the Turkish Prime Minister to the then Federal Chancellor did not fall within the scope of the duty to notify the Bundestag following from Art. 23(2) second sentence GG.

In their applications in Organstreit proceedings, the Bundestag parliamentary groups of BÜNDNIS 90/DIE GRÜNEN (applicant no. I) and DIE LINKE (applicant no. II) asserted a violation of the Bundestag’s participation rights.

Facts of the case:

1. Following a special meeting of the European Council on 23 April 2015, the Council announced in a statement that it would strengthen the European Union’s presence at sea. The Council also committed to fighting traffickers in accordance with international law. The High Representative for Foreign Affairs and Security Policy thereupon prepared a crisis management concept. The Federal Government had received a draft of this concept by 30 April 2015 at the latest.

Several members of the BÜNDNIS 90/DIE GRÜNEN parliamentary group then requested the crisis management concept from Bundestag Division PE 5 (European Affairs/Documentation), but did not receive it.

On 18 May 2015, the Council of the European Union adopted Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED). The Decision provides that the operation is to be conducted in accordance with the political, strategic and politico-military objectives set out in the crisis management concept approved by the Council on 18 May 2015.

On 21 May 2015, the Foreign Office granted access to the crisis management concept to members of the Foreign Affairs Committee, the Defence Committee and the European Union Affairs Committee in the Bundestag’s Document Security Office (Geheimschutzstelle).

On 24 June 2015, following a written question from a member of the BÜNDNIS 90/DIE GRÜNEN parliamentary group, the Foreign Office’s Minister of State for Europe stated that the Federal Government had forwarded the crisis management concept to the responsible committee as well as to the other parliamentary committees participating in the deliberations, while emphasising that this did not amount to a recognition of a legal duty to do so.

On 16 September 2015, the Federal Government consulted the Bundestag on Germany’s participation in the operation and requested its approval for the deployment of the German navy. On 1 October 2015, the Bundestag gave its consent with 449 of 568 votes.

The operation was renamed ‘EUNAVFOR MED Operation Sophia’ with effect from 26 October 2015. The deployment has since ended.

2. According to a newspaper article of 25 September 2015, Turkish Prime Minister Davutoǧlu sent a letter to all the then 28 heads of state and government of the European Union. This letter reportedly addressed questions relating to migration, the Common Foreign and Security Policy, the foreign policy dimension of refugee policy, the cooperation of the EU with third countries and countries of origin, and the linking of the EU-Turkey migration agenda to the accession procedure and migration policy.

On 1 October 2015, applicant no. II requested this letter from the Bundestag administration. On the same day, Bundestag Division PE 5 asked the Federal Government to forward said letter. On 5 October 2015, the Division ‘Federal Government European Policy Coordination/European Council’ of the Federal Chancellery informed Bundestag Division PE 5 that the letter of 23 September 2015 was a letter personally addressed to the Federal Chancellor by the head of government of a third country, and that the Federal Chancellor’s correspondence with other heads of government was not information that was generally shared with the Bundestag. The Federal Chancellery stated that if such information were to be shared, considerable adverse effects would arise for the proper functioning of the Government.

On 9 October 2015, Bundestag Division PE 5 sent another request for the letter to the Federal Chancellery. On 16 October 2015, the Federal Chancellery’s Division ‘Federal Government European Policy Coordination/European Council’ again refused to forward the letter.

3. In their applications in Organstreit proceedings, applicants nos. I and II assert that the Federal Government violated the participation rights of the German Bundestag following from Art. 23(2) second sentence GG. They claim that the Federal Government failed to provide the German Bundestag at the earliest possible opportunity with the complete draft of the crisis management concept drawn up in preparation of the EUNAVFOR MED military operation. In addition, applicant no. II challenges the fact that the Federal Government failed to provide the Bundestag with the letter from the Turkish Prime Minister to the Federal Chancellor, while also failing to demonstrate that the letter did not concern EU matters.

Key considerations of the Senate:

The application in Organstreit proceedings lodged by applicant no. I is admissible and well-founded, as is point 3 of the application lodged by applicant no. II. The other points raised by applicant no. II were not lodged within the time limit set out in § 64(3) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

I. 1. In enacting Art. 23 GG, the Constitution-amending legislator restructured the traditional division of competences between the executive and the legislative branch with regard to decision-making powers for foreign affairs in relation to EU matters, granting the Bundestag far-reaching participation rights. The Federal Government’s duty to notify the Bundestag comprehensively and as early as possible, which is enshrined in Art. 23(2) second sentence GG, reflects the fact that responsibility for EU matters is shared jointly between the executive and legislative branches; it is also a prerequisite for the effective exercise of the Bundestag’s participation rights. In order to fulfil this duty, the Federal Government must therefore meet the Bundestag’s need for information in terms of substance, timing and form.

2. The types of information that must be provided to the Bundestag, the limitations of this obligation, and the manner in which any required information must be provided are aspects that must be determined in light of the purpose of Art. 23(2) second sentence GG, which is to allow the Bundestag to effectively exercise its participation rights in matters concerning the European Union while safeguarding the autonomy of the executive. In substantive terms, the information provided to the Bundestag under Art. 23(2) second sentence GG must be comprehensive. In terms of timing, it must be provided at the earliest possible opportunity. The manner in which it is provided must be in line with the purpose of the provision.

3. The Federal Government’s duty to comprehensively notify the Bundestag as early as possible also applies to measures in the domains of the Common Foreign and Security Policy and the Common Security and Defence Policy.

4. The Federal Government’s duty under Art. 23(2) second sentence GG extends to the entire Bundestag and is only met if the information is freely accessible to all members of Parliament and thus to the public. The Bundestag generally exercises its representative function through all of its members as a whole, not through individual members, groups of members or the parliamentary majority.

5. Providing classified information to the Bundestag, which is then subject to the Bundestag Rules on Document Security, does in principle not fulfil the Federal Government’s duty under Art. 23(2) second sentence GG given that the provision of information to Parliament also serves to give effect to the principle that parliamentary processes are open to the public and are thus part of the principle of democracy. Decisions of considerable significance must therefore generally be preceded by a process that allows the public to form and express opinions and that requires Parliament to hold a public debate on the necessity and scope of the envisaged measures.

6. Limitations to the Federal Government’s duty to provide information under Art. 23(2) GG may arise from the requirement to protect the core of autonomous executive decision-making (Kernbereich exekutiver Eigenverantwortung) – a sphere in which the Government is generally free to operate without disclosing information to Parliament– or from the requirement to protect security interests of the state.

7. If the Federal Government intends not to provide some or all of the information required by Art. 23(2) second sentence GG on the grounds of the limitations set out above, it must notify the Bundestag of its decision to invoke these limitations and must set out the reasons why the Government is refraining from notifying the Bundestag comprehensively and as early as possible. This requirement to state reasons ensures that the members of the Bundestag become aware of the reasons for the refusal to provide information or for classifying the information provided, allowing them to analyse these reasons and to assess the prospects of recourse to the Federal Constitutional Court. Moreover, the reasons provided for the refusal form the indispensable basis for (constitutional) court review and thereby serve to prevent a situation in which the review process would largely be at the discretion of the Federal Government.

II. Based on these standards, the application lodged by applicant no. I and point 3 of the application lodged by applicant no. II are well-founded.

1. With regard to the crisis management concept, the Federal Government violated the Bundestag’s rights under Art. 23(2) second sentence GG by refusing to share the draft text, which was available to the Government on 30 April 2015, with Parliament.

a) The crisis management concept relates to a “matter concerning the European Union” within the meaning of Art. 23(2) GG. It formed the basis of the multinational EUNAVFOR MED Operation Sophia – a measure of the Common Security and Defence Policy of the European Union. Thus, its contents concerned a policy area laid down in the Treaties.

Operations conducted in the context of the Common Security and Defence Policy are governed by Art. 43 f. of the Treaty on European Union (TEU). EUNAVFOR MED Operation Sophia was part of the European migration agenda and thus part of a comprehensive European approach. EU institutions prepared the crisis management concept, which directly served to realise EU objectives. The concept’s implementation likewise fell to the EU. The operation was limited to EU Member States, though third states could be invited to participate.

The application of Art. 23(2) second sentence GG is not precluded by the fact that EU defence policy is conducted on a voluntary basis – apart from the (vague) commitment to gradually improving military capabilities – and that Member States cannot be (legally) compelled to participate in a military operation. Even though the crisis management concept and the operation envisaged therein were based on the voluntary commitment of participating Member States, this does not call into question that the operation was a matter concerning the European Union. Matters concerning the European Union are not limited to law-making acts, but also cover other measures.

b) The Federal Government has failed to notify the Bundestag comprehensively and as early as possible with regard to the crisis management concept and has thus violated parliamentary information rights under Art. 23(2) second sentence GG.

aa) The Federal Government was required to provide the Bundestag with information on the concept as soon as it reached the Government’s sphere of influence. Given the great constitutional and political significance of the project, strict requirements applied regarding the quality, quantity, timeliness and usability of the information. The Federal Government had a duty to forward official documents and materials drawn up by institutions, bodies, offices and agencies of the European Union and other Member States to the Bundestag without delay and to notify the Bundestag of any negotiations even in their early stages.

The Federal Government played a significant role in the development of the crisis management concept and would therefore have been able to notify the Bundestag at an early stage in this regard. In particular, it can be assumed that the High Representative already forwarded the draft to the Federal Government on 30 April 2015 at the latest. The final draft was available by no later than 6 May 2015, when the Committee of Permanent Representatives of the Governments of the Member States met. Still, the Federal Government only forwarded the relevant documents to the Bundestag on 21 May 2015, and thus after the Council of the European Union adopted its decision on 18 May 2015, thereby preventing the Bundestag from influencing the crisis management concept.

The violation of the duty to provide notification continued after 21 May 2015 because from that date, access to the crisis management concept was only granted to the members of the Foreign Affairs Committee, the Defence Committee and the European Union Affairs Committee, and only in the Bundestag’s Document Security Office. Although access was later also granted to members of the Human Rights and Humanitarian Aid Committee, the Internal Affairs Committee, the Legal Affairs and Consumer Protection Committee and the Economic Cooperation and Development Committee, the document was not made available to all members of the Bundestag.

The fact that the crisis management concept was classified and the fact that access to the Bundestag Document Security Office was restricted also violate Art. 23(2) second sentence GG as they adversely affect the public nature of Parliament.

bb) It is not ascertainable that there were any exceptional reasons precluding the sharing of the crisis management concept with Parliament. The crisis management concept is not exclusively concerned with the Federal Government’s internal decision-making process, and the Government can therefore not claim that the concept is part of its core of autonomous decision-making.

cc) There is no need to decide here whether, for reasons of confidentiality, the crisis management concept could have been made available to the Bundestag in classified form only. Even if a classified document had been shared, it should at the very least have been shared with the entire Bundestag. Moreover, the Federal Government did not invoke any need for confidentiality.

2. The Federal Government also violated the Bundestag’s rights under Art. 23(2) second sentence GG with regard to the letter from Turkish Prime Minster Davutoǧlu of 23 September 2015. It failed to plausibly demonstrate that the letter did not concern matters concerning the European Union or that there were constitutional reasons for not forwarding it to the Bundestag.

a) There were specific indications that the letter in question falls within the scope of the duty to provide notification under Art. 23(2) second sentence GG. According to the press coverage at the time, the letter was addressed to all 28 heads of state and government of the European Union and concerned Turkey’s cooperation with the European Union in asylum and migration matters. This would have made it a matter concerning the European Union within the meaning of Art. 23(2) second sentence GG.

The letter was also reported to have made direct reference to the EU-Turkey joint action plan to overcome the refugee crisis adopted at the summit of 29 November 2015, which is also a matter concerning the European Union.

In light of this, it was incumbent upon the Federal Government to give plausible reasons why it was not obliged to provide notification under Art. 23(2) second sentence GG in this case. The Government failed to give such reasons.

b) Moreover, the Federal Government has not plausibly demonstrated that constitutional reasons precluded the forwarding of the document. It merely issued a general statement that the document in question was a letter from a head of government personally addressed to the Federal Chancellor and that, as such, it was generally exempt from the duty to provide notification given that lifting the confidentiality of such correspondence would have considerable adverse effects on the proper functioning of the Federal Government. It is doubtful whether the letter would also have enjoyed special confidentiality protection if it had not been solely addressed to the Federal Chancellor, but to all EU heads of state and government. It is also not evident that the letter contained confidential discussions of negotiating positions. The mere statement that it was a personal letter from the Turkish Prime Minister to the Federal Chancellor is insufficient.