Electoral complaint proceedings: Application of the German Bundestag to join proceedings is inadmissible; objection to Justice Müller is inapplicable

Press Release No. 67/2023 of 12 July 2023

Order of 5 July 2023 - 2 BvC 4/23

In an order published today, the Second Senate of the Federal Constitutional Court dismissed the application of the German Bundestag to join the electoral complaint proceedings brought by the Christlich-Demokratische Union (CDU)/Christlich-Soziale Union in Bayern (CSU) parliamentary group in the German Bundestag concerning the election for the 20th term of the German Bundestag on 26 September 2021 in the Land Berlin as inadmissible. The German Bundestag‘s challenge of bias against Justice Müller submitted in connection with its application to join was dismissed as inapplicable.

In its electoral complaint, the CDU/CSU parliamentary group challenges the decision of the German Bundestag of 10 November 2022 that declared the results of the Bundestag election on 26 September 2021 to be invalid in 431 polling districts of the Land Berlin and either rejected as unfounded or otherwise dismissed all other objections contesting the validity of that election. The oral hearing in these proceedings will take place on 18 and 19 July 2023 (cf. Press Release No. 60/2023 of 22 June 2023).

 The German Bundestag sought to join the proceedings as a party and objected to Justice Müller on grounds of bias.

 The German Bundestag’s application to join proceedings is inadmissible. There is no statutory basis for joining electoral complaint proceedings pursuant to § 48 Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). An analogous application of other provisions of the Federal Constitutional Court Act on joinder must be ruled out, as the lack of a joinder provision for electoral complaint proceedings is not unintentional and the other provisions do not relate to comparable matters. Moreover, there are no constitutional grounds for granting the application to join the electoral complaint proceedings given the lack of a manifest need to that effect. Electoral complaint proceedings involve the objective review of a decision of the German Bundestag. The proceedings thus do not amount to an adversarial dispute in which the body that took the challenged decision must be granted the possibility to join as a party in order to defend its decision.

 In light of the inadmissibility of the application to join proceedings and the impermissibility of a decision ex officio on grounds of possible bias, a decision by the Federal Constitutional Court concerning Justice Müller need not be reached.

 The German Bundestag nevertheless remains involved in the proceedings given that its challenged decision of 10 November 2022 is the subject of the electoral complaint proceedings.