Inviolability of electoral scrutiny decisions made by constitutional courts of the Länder – Second Senate gives reasoning for denial of preliminary injunction against repeat election in Berlin

Press Release No. 49/2023 of 17 May 2023

Order of 25 January 2023 - 2 BvR 2189/22

Repeat election in Berlin – Preliminary Injunction

Today, the Second Senate published its reasoning for its order of 25 January 2023 denying an application for preliminary injunction against the legal effect of a judgment issued by the Berlin Constitutional Court on 16 November 2022 (VerfGH 154/21 inter alia). The complainants – members of the Berlin House of Representatives (Abgeordnetenhaus) and the district assemblies as well as voters – sought to suspend the holding of a repeat election for the House of Representatives and the district assemblies until the Federal Constitutional Court reached a decision in the principal proceedings.

The application for a preliminary injunction was unsuccessful because the constitutional complaint in the principal proceedings is not formally admissible. The Basic Law (Grundgesetz) provides that the Federation and the Länder have their own separate constitutional spheres, including in the area of electoral law. For elections within the constitutional sphere of a Land, the protection of subjective electoral rights is in principle the sole and exclusive responsibility of the Land. Accordingly, constitutional complaints that challenge a Land constitutional court’s decision concerning the scrutiny of a Land election cannot generally be lodged with the Federal Constitutional Court. The same is true of complaints that assert a violation of fundamental rights or rights equivalent to fundamental rights beyond the general electoral principles of Art. 28(1) second sentence of the Basic Law. The preclusive effect arising from the separate constitutional spheres of the Länder is nevertheless subject to the proviso that the constitutional orders of the Länder – in particular the rules and remit of their constitutional courts, which are the bodies entrusted with protecting electoral rights – satisfy the homogeneity requirements of Art. 28(1) of the Basic Law. This is the case with regard to the Land Berlin.

Facts of the case:

On 26 September 2021, the elections for the 19th parliamentary term of the Berlin House of Representatives and for the district assemblies in Berlin were held concurrently with the federal election for the Bundestag. In response to certain challenges brought against the election results, the Berlin Constitutional Court issued a judgment on 16 November 2022 declaring the elections for the House of Representatives and the district assemblies to be invalid, thereby resulting in the need for a repeat election.

On 15 December 2022, the complainants lodged a constitutional complaint against the judgment of the Berlin Constitutional Court and, at the same time, submitted an application for a preliminary injunction. In the principal proceedings, the complainants contend that the challenged judgment violates their fundamental rights under Art. 3 in conjunction with Art. 20(3), Art. 101(1) second sentence in conjunction with Art. 100(3), Art. 101(1) second sentence, Art. 1(1) in conjunction with Art. 20(1) and Art. 79(3), as well as Art. 103(1) of the Basic Law.

In its order of 25 January 2023, the Second Senate rejected the application. It initially did so without giving reasons, in accordance with § 32(5) first sentence of the Act on the Federal Constitutional Court (Bundesverfassungsgerichtgesetz).

Key considerations of the Senate:

The application for preliminary injunction is unfounded. The application is unsuccessful because the constitutional complaint in the principal proceedings is inadmissible.

1. In the case of a Land election, constitutional complaints asserting a violation of the electoral principles guaranteed in Art. 28(1) second sentence of the Basic Law cannot generally be lodged with the Federal Constitutional Court.

The Basic Law guarantees separate constitutional spheres for the Federation and the Länder within the scope of their respective positions in the Federal Republic. This also extends to electoral law. Consequently, in the context of their obligations arising from the principles in Art. 28 of the Basic Law, the Länder have the autonomy to enact provisions regarding the electoral system and election procedures for their own parliaments and for electoral representation at the municipal level; this also applies to the design and organisation of electoral scrutiny proceedings. The Länder are obligated to enact provisions for the protection of subjective electoral rights for elections to their parliaments and to ensure such protection through judicial review. When these obligations are fulfilled, there is – according to the case-law of this Court – no basis for lodging a constitutional complaint with the Federal Constitutional Court asserting a violation of electoral principles under Art. 28(1) second sentence of the Basic Law.

2. The foregoing must be distinguished from the admissibility of a constitutional complaint that challenges a Land constitutional court’s electoral scrutiny decision not on the basis of a violation of electoral principles or the general guarantee of the right to equality, but instead based on an asserted violation of other fundamental rights or equivalent fundamental rights guarantees. This question has not been previously answered by the Federal Constitutional Court. Here too, however, the fact that the Länder have the sole and exclusive responsibility for the protection of subjective electoral rights in elections within their constitutional sphere also precludes the admissibility of a constitutional complaint before the Federal Constitutional Court.

a) This follows from the general principle of the inviolability of decisions issued by Land constitutional courts on questions that fall solely within the constitutional sphere of the Länder. In the federal order established by the Basic Law, the Federal Constitutional Court is not called upon to subject the judgments of Land constitutional courts to comprehensive review in every case. If a dispute falls within a Land’s separate constitutional sphere, then a decision issued by that Land’s constitutional court is not subject to review by the Federal Constitutional Court.

b) This principle also applies when a Land constitutional court issues a decision in electoral scrutiny proceedings. Here too, the subject matter lies entirely within the constitutional sphere of the Land.

If this were not the case, there would be a risk that the Länder would lose their sole and exclusive responsibility for the protection of subjective electoral rights in elections within their constitutional sphere, or at the very least that this responsibility would be greatly limited. The autonomy of the Länder in the area of the protection of subjective electoral rights could be undermined. Constitutional law dictates that this autonomy must be preserved to the greatest extent possible.

If the Länder provide sufficient possibility for the protection of subjective electoral rights, then no additional legal recourse is required under constitutional law. In sum, Art. 28(1) second sentence of the Basic Law generally precludes constitutional complaints against decisions on electoral scrutiny made by constitutional courts of the Länder.

c) In particular, the fact that the holding of parliamentary elections requires a great deal of ad hoc decision-making from many different electoral bodies speaks in favour of the autonomy of the Länder. An election is a mass scale operation in which errors cannot be completely avoided: numerous objections will always be raised after the conclusion of such elections. If such objections concerning the violation of fundamental rights or rights equivalent to fundamental rights could always be brought before the Federal Constitutional Court, this would effectively transform the Federal Constitutional Court into a court of second instance with comprehensive jurisdiction to review the decisions of Land constitutional courts in electoral scrutiny proceedings. Prior to a decision being issued by the Federal Constitutional Court, it would be impossible to obtain definitive legal certainty on the proper composition of the elected parliament or the question of whether a repeat election needs to be held. The preclusion of constitutional complaints against decisions made by Land constitutional courts regarding the protection of subjective electoral rights therefore contributes to the constitutional objective of ensuring the timely clarification of electoral errors in order to achieve an orderly composition of the elected parliament.

3. The inviolability of decisions made by Land constitutional courts on the protection of subjective electoral rights is subject to compliance with the homogeneity mandate of Art. 28(1) of the Basic Law. Only if the requirements of the homogeneity mandate are satisfied is the Federal Constitutional Court precluded from reviewing decisions of Land constitutional courts on matters within their constitutional sphere that constitute “acts of public authority”.

a) Art. 28(1) of the Basic Law provides the Länder with considerable latitude to design their constitutional order autonomously. The Basic Law does not seek to impose conformity or uniformity through Art. 28(1); rather, it seeks to bring about a minimum level of homogeneity by binding the Länder to its guiding principles. The provision is aimed at guaranteeing only that amount of structural equality among the judicial systems of the state as a whole and its component parts as is indispensable for the functioning of a federal state.

It follows that the homogeneity mandate only requires the Länder to abide by the “principles” of a republican, democratic and social constitutional state. It only applies to the provisions on state structure and national objectives and – within those provisions – only to the underlying principles contained therein. The specific forms that these principles have taken in the Basic Law do not need to be replicated in the constitutions of the Länder.

Art. 28(1) first sentence of the Basic Law is applicable not only to the entire body of substantive constitutional law, including the constitutional law of the Länder, but also to actual constitutional practices. However, in view of the sovereignty of the Länder and their constitutional autonomy, a certain degree of restraint is required when determining whether divergences between constitutional provisions and actual constitutional practices amount to a violation of Art. 28(1) of the Basic Law. The homogeneity mandate is only violated when a practice systematically or persistently deviates from the law in such a way that the validity of the normative guarantee comes into question. An occasional instance of unlawfulness or unconstitutionality is not enough to substantiate a violation of the homogeneity mandate.

b) Art. 28(1) first sentence of the Basic Law, as an expression of the principle of the rule of law, obligates the Länder to ensure effective legal protection within their respective constitutional orders.

This must be taken into account when establishing and structuring the jurisdiction of the constitutional courts of the Länder and when determining their composition. Thus, Art. 28(1) first sentence requires the Länder to appoint constitutional court judges that are independent in the sense of Art. 97(1) of the Basic Law and only subject to the law. It also requires consideration of the principles that are based on the rule of law and that apply to all judicial proceedings. This includes the guarantee of the right to be heard and the right to one’s lawful judge.

c) In the area of electoral law and electoral scrutiny, Art. 28(1) of the Basic Law establishes certain prerequisites that the constitutional orders of the Länder must satisfy.

Pursuant to Art. 28(1) second sentence of the Basic Law, the people in each Land, county and municipality shall be represented by a body chosen in general, direct, free, equal and secret elections.

By invoking the principle of democracy, Art. 28(1) first sentence of the Basic Law requires the Länder to establish proceedings for the scrutiny of their own parliamentary elections that sufficiently satisfy the rule-of-law requirements for the protection of active and passive voting rights and that observe the electoral principles derived from Art. 28(1) second sentence. The Länder may autonomously design and organise their proceedings on electoral scrutiny within this framework.

4. According to these standards, the present constitutional complaint is inadmissible.

a) The challenged judgment of the Berlin Constitutional Court is concerned with reviewing the elections for the Berlin House of Representatives and the district assemblies that took place on 26 September 2021. It is therefore concerned with the protection of electoral rights in elections that fall exclusively within the constitutional sphere of the Land Berlin.

b) The legal provisions governing the Berlin Constitutional Court satisfy the rule-of-law requirements imposed by the homogeneity mandate derived from Art. 28(1) of the Basic Law. Neither the composition of the Berlin Constitutional Court at the time of the decision on the electoral challenges nor considerations relating to the right to be heard raise an issue in this regard.

aa) Pursuant to Art. 84(1) first sentence of the Berlin Constitution (Verfassung von Berlin), the Berlin Constitutional Court consists of nine members, three of whom must be judges at the time of their appointment and an additional three of whom must at least be qualified to hold judicial office. As part of the administration of justice, judges of the Berlin Constitutional Court are bound by the law (Art. 80 Berlin Constitution). In accordance with Art. 79(1) of the Berlin Constitution, they must observe the constitutional mandate of judicial impartiality. These provisions are not objectionable with regard to the homogeneity requirements of Art. 28(1) of the Basic Law that are derived from the principle of the rule of law.

bb) Insofar as six of the nine judges of the Berlin Constitutional Court had exceeded their term of office at the time of the challenged decision, this does not result in a violation of the homogeneity mandate under Art. 28(1) first sentence of the Basic Law.

Pursuant to Art. 84(1) second sentence of the Berlin Constitution in conjunction with § 2(1) of the Berlin Constitutional Court Act (Gesetz über den Verfassungsgerichtshof), members of the Berlin Constitutional Court are elected for a term of seven years, with no possibility for re-election. § 7(1) of the Berlin Constitutional Court Act provides that judges of the Berlin Constitutional Court shall retire upon the expiry of their term of office. Upon the expiry of their term of office, the judges shall continue to carry out their official functions until a successor is appointed (§ 7(2) Berlin Constitutional Court Act).

These provisions are not objectionable with regard to the homogeneity mandate of Art. 28(1) first sentence of the Basic Law. This is also the case with regard to the right to one’s lawful judge. If §§ 2 and 7 of the Berlin Constitutional Court Act are interpreted in conformity with the Basic Law, it can at least be assumed that they do not allow judges whose term of office has expired to continue performing their official functions for overly long periods due to improper delays in the appointment of their successors.

In addition, it is not ascertainable that the specific application of the provisions relating to the election and tenure of the members of the Berlin Constitutional Court violated the homogeneity mandate. It is not evident that the exceeding of the terms of office is an expression of a systematic violation that goes beyond the particularities of the present situation. This would be necessary in order to establish that the guarantee of one’s lawful judge had been disregarded.

cc) Finally, it is not ascertainable that the design of electoral scrutiny proceedings in Berlin fails to take the homogeneity mandate of Art. 28(1) first sentence of the Basic Law into account with regard to the right to be heard.

Pursuant to Art. 15(1) of the Berlin Constitution, every person has the right to a hearing in court in accordance with the law. The Berlin Constitutional Court is bound to this provision through Art. 80 of the Berlin Constitution. At the level of ordinary law, § 41 of the Berlin Constitutional Court Act provides that participants in electoral scrutiny proceedings must be notified of the date of the hearing no later than a week in advance (§ 41 second sentence Berlin Constitutional Court Act) and have their own right to submit their case (§ 41 third sentence Berlin Constitutional Court Act). The participants include, in particular, the persons raising the challenge, the affected electoral candidates and representatives, and the responsible electoral official in charge (§ 41 first sentence Berlin Constitutional Court Act). These provisions guarantee the ability to assert the right to be heard in proceedings concerning the scrutiny of Land elections in Berlin in a manner that sufficiently conforms with the requirements of Art. 28(1) of the Basic Law.

A different conclusion does not arise from the Berlin Constitutional Court’s conduct of the proceedings in the present case. There is no need to determine the accuracy of the complainants’ contention that the Berlin Constitutional Court violated their right to be heard by failing to sufficiently inform them of the proceedings and by not being receptive to them in the oral hearing. In any event, there is no indication that the Berlin Constitutional Court’s conduct of the proceedings in this specific case could be part of a long-term practice that would be sufficient to undermine the right to be heard within the constitutional order of the Land Berlin. There is no basis for assuming a violation of the homogeneity mandate contained in Art. 28(1) of the Basic Law.

c) The design of electoral law and electoral scrutiny proceedings in Berlin also satisfy the homogeneity requirements of Art. 28(1) of the Basic Law.

aa) Members of the Berlin House of Representatives and members of the district assemblies are elected by general, equal, secret and direct elections pursuant to Art. 39(1) and Art. 70(1) first sentence of the Berlin Constitution, respectively. § 7(1) of the Berlin Electoral Act (Landeswahlgesetz) further references the principle of free elections with regard to the election of the assembly, which is not expressly mentioned in Art. 39 of the Berlin Constitution. It is not ascertainable that the provisions relating to elections for the Berlin House of Representatives or the district assemblies in the Berlin Constitution, the Berlin Electoral Act or the ordinance for the implementation of the Berlin Electoral Act (Landeswahlordnung) violate the homogeneity mandate of Art. 28(1) of the Basic Law.

bb) The same applies to the design of the electoral scrutiny proceedings.

The fact that the possibility of challenging an election is limited to alleging certain specified electoral irregularities does not mean that the design of the electoral scrutiny proceedings in the Land Berlin contravenes the homogeneity mandate. Pursuant to § 40(3) no. 2 in conjunction with § 40(2) no. 7 of the Berlin Constitutional Court Act, a challenge to an election can only be made by eligible voters or those eligible to stand for election, and only on the grounds that persons were either incorrectly designated on the electoral roll or not listed at all, or that they had improperly received a ballot
or had not received a ballot, and that this error had influenced the distribution of seats. Other violations of electoral law requirements cannot be alleged, even if the person’s subjective electoral rights are thereby affected.

With regard to the homogeneity mandate of Art. 28(1) of the Basic Law, the limitations to the persons eligible to bring a challenge and the permissible grounds for a challenge are not objectionable. The homogeneity requirements are satisfied when the legal framework governing a Land election ensures that the observance of the electoral principles guaranteed in Art. 28(1) second sentence is subject to effective judicial review. In this way, the protection of both active and passive electoral rights is indirectly guaranteed. This is achieved in the Land Berlin through the provisions of §§ 40 ff. of the Berlin Constitutional Court Act, which provide for the comprehensive judicial review of electoral errors that affect the allocation of seats.

The fact that the design of the electoral scrutiny proceedings in the Land Berlin is such that the task of electoral scrutiny is left solely to the Berlin Constitutional Court does not raise any concerns as to its conformity with the homogeneity mandate. It cannot be inferred from Art. 28(1) of the Basic Law that electoral scrutiny proceedings in the Länder must include a two-tier system of review. Rather, the homogeneity mandate merely requires that in electoral scrutiny proceedings, independent judicial review is guaranteed – at the latest in the second instance.

d) As the design of the jurisdiction of the Land Constitutional Court, the electoral law and the electoral scrutiny proceedings in the constitutional order of the Land Berlin conform to the homogeneity requirements of Art. 28(1) of the Basic Law, the protection of subjective electoral rights in elections for the Berlin House of Representatives and the district assemblies is solely and exclusively provided through the Berlin Constitutional Court in proceedings pursuant to §§ 40 ff. of the Berlin Constitutional Court Act. The Berlin Constitutional Court’s judgment of 16 November 2022 is consistent with this.

In contrast, the complainants cannot be heard insofar as they submit that the Berlin Constitutional Court was incorrect in its assessment of certain events leading up to and during the election, particularly as this would only result in a review of the objective legal guarantee of the electoral principles of Art. 28(1) second sentence of the Basic Law. The same applies insofar as the complainants assert a violation of the right to one’s lawful judge under Art. 101(1) second sentence in conjunction with Art. 100(3) of the Basic Law on the grounds that the Berlin Constitutional Court failed to refer the matter to the Federal Constitutional Court, even though it had deviated from the Federal Constitutional Court’s standards on what constitutes an error that affects the allocation of parliamentary seats and on interfering as little as possible with the elected representation of the people. In light of the comprehensive preclusive effect arising from Art. 28(1) second sentence of the Basic Law in the present case, there is no basis for a constitutional complaint on these grounds.