Preliminary injunction as to legislative proceedings concerning the Act to Amend the Buildings Energy Act granted

Press Release No. 63/2023 of 11 July 2023

Order of 5 July 2023 - 2 BvE 4/23

Act to Amend the Buildings Energy Act – Preliminary Injunction

In an order issued on 5 July 2023, the Second Senate of the Federal Constitutional Court directed the German Bundestag not to proceed with the second and third readings of the Federal Government’s draft  ‘Act to Amend the Buildings Energy Act and the Chimney Sweeping and Inspection Ordinance’ (Gebäudeenergiegesetzänderungsgesetz) (hereinafter the Act to Amend the Buildings Energy Act) during the then-current week of the legislative session. The applicant, a member of the Christlich-Demokratische Union (CDU)/Christlich-Soziale Union in Bayern (CSU) parliamentary group in the German Bundestag, alleges that the legislative proceedings violate his rights as a member of the Bundestag. 

His application for a preliminary injunction is successful. The main application in Organstreit proceedings (a dispute between highest federal organs) appears to be neither inadmissible from the outset nor clearly unfounded – at least with regard to the applicant’s right to equal participation in the formation of the parliamentary will derived from Art. 38(1) second sentence of the Basic Law (Grundgesetz). The resultant weighing of consequences conducted by the Federal Constitutional Court leads to the conclusion that the arguments in favour of granting the injunction prevail. Under the special circumstances in this particular case, the interest in avoiding an irreversible violation of the applicant’s right of participation under Art. 38(1) second sentence of the Basic Law outweighs the interference with the procedural autonomy of the German Bundestag, which will merely delay the legislative proceedings. 

This decision was taken with 5:2 votes. 

The order will be published separately on the Federal Constitutional Court’s website. 

Facts of the case: 

On 19 April 2023, the Federal Cabinet approved the submission of draft legislation to amend the Buildings Energy Act. The Federal Finance Minister stated on record that the draft law was approved with an awareness that it would be subject to intense debate by the parliamentary groups in the German Bundestag and that additional amendments would be undertaken. The draft law was submitted to the Bundestag on 17 May 2023 (Bundestag document – BTDrucks 20/6875). 

On 13 June 2023, the parliamentary groups of the governing coalition published a two-page document with the title ‘Guidelines [...] for the further debate on the Buildings Energy Act’. This included a list of ‘discussion points’ on amendments to the draft law that were to be raised in further proceedings. 

The draft law was debated in a first reading in the plenary of the German Bundestag on 15 June 2023 and then referred to the Committee on Climate Action and Energy. 

On 21 June 2023, the Committee conducted an expert hearing on the original version of the draft law, during which the so-called ‘guidelines’ were also considered. Upon the application of the parliamentary groups of the governing coalition, a special sitting of the Committee was held on 27 June 2023. During this sitting, the date for a second expert hearing was set by majority vote for 3 July 2023, subject to the condition that all applications for amendments would be made by Friday, 30 June 2023. 

On 27 June 2023, representatives of the parliamentary groups of the governing coalition presented the results of their negotiations on the still-open points of the Act to Amend the Buildings Energy Act. 

On 30 June 2023, the Federal Ministry for Economic Affairs and Climate Action provided the Committee on Climate Action and Energy with ‘drafting assistance’ regarding the application for amendments submitted by the parliamentary groups of the governing coalition. It consisted of a 94-page synopsis of the Federal Government’s draft legislation and proposed amendments, as well as a 14-page explanatory statement. 

The second public expert hearing of the Committee on Climate Action and Energy took place on Monday, 3 July 2023. On the afternoon of 4 July 2023, the parliamentary groups of the governing coalition submitted an application for amendments to the draft Act to Amend the Buildings Energy Act. The Committee deliberated again on the morning of 5 July 2023. According to the respondent, the second and third readings of the draft law in the German Bundestag and final vote thereon were then to take place on 7 July 2023. 

In the main Organstreit proceedings, the applicant seeks a declaration that his rights as a member of the German Bundestag have been violated by the legislative proceedings concerning the Act to Amend the Buildings Energy Act. The accompanying application for preliminary injunction seeks to prohibit the German Bundestag from proceeding with the second and third readings of the above-mentioned draft law, so long as all of the members of the Bundestag have not received that part of the text of the draft law that is essential for the second reading at least 14 days prior to that reading. 

Key considerations of the Senate: 

The application for a preliminary injunction pursuant to § 32 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) is, for the most part, successful. 

I. The application for preliminary injunction is admissible. 

In principle, a ruling on a preliminary injunction should not prejudice the main proceedings. An inadmissible injunction that could prejudice the principal proceedings is to be presumed when the substance of the applied-for preliminary injunction and the legal protection sought in the main proceedings are, if not identical, at least similar. Measured against this standard, the applicant’s preliminary injunction application does not seek an inadmissible anticipatory ruling on the main proceedings. 

The sought-after preliminary injunction would result in the draft Act to Amend the Buildings Energy Act not being debated or acted upon in a second and third readings in the current week of the session. This would not, however, result in a simultaneous decision on the request for declaratory relief sought in the main proceedings, specifically, a declaration that the applicant’s rights as a member of the Bundestag have been violated. This question is only to be reviewed in the main proceedings. 

II. The application for preliminary injunction is also well-founded. 

1. The application in the main proceedings appears to be neither inadmissible from the outset nor clearly unfounded – at least with regard to the right of the applicant to equal participation in the formation of the parliamentary will derived from Art. 38(1) second sentence of the Basic Law. 

a) In particular, it cannot be ruled out that the structuring of the legislative proceedings, including the scheduling of the second and third readings of the draft law in the German Bundestag, constitutes admissible subject matter for an application. The way in which legislative proceedings have been designed as a whole obviously has the potential to violate the participatory rights of individual members of the Bundestag under Art. 38(1) second sentence of the Basic Law, and therefore could constitute suitable subject matter for a dispute between federal organs, regardless of whether the particular legislative acts at issue are only of a preparatory character. 

b) The application for Organstreit is not clearly unfounded at this stage. 

aa) Art. 38(1) second sentence of the Basic Law guarantees the equal status of members of the Bundestag in a formal and comprehensive sense. According to this provision, all members of the Bundestag are entitled to participate equally in the formation of the parliamentary will. Members of the Bundestag not only have the right to participate in voting, they also have the right to deliberate. This requires sufficient information concerning the subject matter of deliberations. In this respect, members of the Bundestag not only need to receive the relevant information, they must also be able to process that information. The Senate has not previously decided on what obligations arise from the principle of equal participation in the parliamentary will with respect to the design and scheduling of legislative proceedings. In principle, it is up to the parliamentary majority (Art. 42(2) first sentence of the Basic Law) to determine priorities and procedures in the course of legislative proceedings. But while the parliamentary majority enjoys broad leeway in this respect, there is support for the proposition that its procedural autonomy does not exempt it from respecting the guaranteed equal status of members of the Bundestag derived from Art. 38(1) second sentence of the Basic Law and that the rights of members of the Bundestag are violated when such rights are disregarded – whether in whole or in substantial part – in the structuring of legislative proceedings without objective reasons. 

bb) Measured against this standard, the application for a declaration of a violation of the participatory rights of the applicant under Art. 38(1) second sentence of the Basic Law is not clearly unfounded. In fact, the outcome of the main proceedings appears to be open. Given the special circumstances surrounding the manner in which the legislative proceedings at issue were conducted, it is necessary to review thoroughly whether the parliamentary majority’s exercise of its procedural autonomy took sufficient account of the applicant’s constitutionally guaranteed participatory rights in this case. 

For its part, the respondent acknowledges that the operative timeframe has been significantly compressed and that the subject matter for deliberations is of a ‘not inconsiderable complexity’. Even when the parliamentary majority enjoys a constitutionally guaranteed broad leeway in determining the course of legislative proceedings and when, in the course of events described here, the deadlines for a second reading of a draft law required by the Rules of Procedure of the German Bundestag (§ 81 of the Rules of Procedure) may have been observed, a closer review is required – one that is not possible in preliminary proceedings – of whether the participatory rights of the applicant were violated without sufficiently objective reasons in this case and whether the course of action chosen by the parliamentary majority in the case constitutes an abusive acceleration of legislative proceedings. 

2. Contrary to the view of the respondent, there is no room in the present case for a summary examination of the prospects of success of the main proceedings. If it cannot be established that the application filed in the main proceedings will prove to be inadmissible or manifestly unfounded from the outset, or if the Federal Constitutional Court cannot decide the main proceedings in such a timely manner so that foreseeable severe disadvantages are thereby avoided, then a preliminary injunction may be necessary, precisely because – as is the case here – the Court lacks the necessary time for a conscientious (even if only summary) examination of the legal issues that are relevant to the decision in the main proceedings. 

3. The resultant weighing of consequences conducted by the Federal Constitutional Court pursuant to § 32(1) of the Federal Constitutional Court Act leads to the conclusion that the arguments in favour of granting the injunction prevail. 

a) If the preliminary injunction were granted, but the application in the main proceedings were ultimately denied, this would result in a considerable interference in the autonomy of parliament, or rather that of the parliamentary majority, and thus interfere with the inherent powers of another constitutional organ. Such interferences are in principle to be avoided in preliminary injunction proceedings. In the present constellation, however, it must be considered that it would still be possible to adopt the Act to Amend the Buildings Energy Act in time for its scheduled date of entry into force of 1 January 2024 without any additional action. In this respect, the applicant contends that the respondent would still be able to call a special session of the German Bundestag in the current month. Insofar as the respondent argues that if the readings are removed from the agenda in this week of the session, it would only be possible for the Bundesrat to adopt the Act and for the legislative proceedings to be concluded during the next regular session of the Bundesrat at the end of September, this ignores the fact that the President of the Bundesrat is obliged to convene the Bundesrat if the Federal Government so requires. 

b) If the preliminary injunction were not granted and the application in the main proceedings were ultimately successful in regard to the asserted right to equal participation in the parliamentary will, this would result in an irreversible and substantial violation of this right. The applicant would have irreparably lost the opportunity to exercise his rights of participation in the manner guaranteed by the Constitution in the deliberations and decision-making on the Act to Amend the Buildings Energy Act. The irreversible and substantial violation of his participatory rights affects the relationship between the constitutional organs to the detriment of Parliament and its autonomy. Contrary to the position of the respondent, the possibility that the applicant’s success in the main proceedings could have positive effects on the structuring of future legislative proceedings does not warrant a different result. 

c) In granting the preliminary injunction, the Senate deviates from the relief requested by the applicant in order to bring the rights that are affected after the weighing of consequences into an appropriate balance. Of particular consideration for the Senate is that any interference in Parliament’s autonomy to determine the course of legislative proceedings be restricted as far as possible and that the respondent be able to continue to schedule the procedural steps of the legislative process with due regard to the rights at issue in the weighing of consequences conducted here.