Unsuccessful Organstreit application by the AfD parliamentary group in the German Bundestag regarding the election and electoral removal of committee chairpersons

Press Release No. 79/2024 of 18 September 2024

Judgment of 18 September 2024 - 2 BvE 1/20, 2 BvE 10/21

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court rejected two applications of the AfD parliamentary group in the German Bundestag (applicant) in Organstreit proceedings (proceedings relating to disputes between constitutional organs) as partly unfounded. The remainder of the applications was dismissed as inadmissible. In proceedings 2 BvE 1/20, the applicant objects to the electoral removal of one of its members from the position of chairman of the Bundestag Committee on Legal Affairs during the 19th parliamentary term. In proceedings 2 BvE 10/21, the applicant objects to the fact that elections were held for the appointment of the chairpersons of the Committees on Internal Affairs, Health and Development during the 20th parliamentary term. In these elections, the candidates nominated by the applicant did not receive the majority of the votes. The applicant asserts a violation of its right to equal treatment as a parliamentary group.

There has been no violation of the applicant’s right to equal treatment as a parliamentary group under Art. 38(1) second sentence of the Basic Law (Grundgesetz – GG) in conjunction with the principle of fair and uniform interpretation and application of the Rules of Procedure of the German Bundestag (Geschäftsordnung des Bundestages – GO-BT, hereinafter: Bundestag Rules of Procedure). While the applicant may base its challenge on the right to equal treatment in the allocation of committee chairpersonships, holding elections to select committee chairpersons and to remove the chairman of the Committee on Legal Affairs falls within the scope of the Bundestag’s autonomy to adopt its own rules of procedure (Art. 40(1) second sentence of the Basic Law). Because the conflict at hand concerns only the right to participation in legal positions granted by the Bundestag Rules of Procedure and not the specific status rights of the Bundestag members or of parliamentary groups, the sole standard of constitutional review is the prohibition of arbitrariness.

The decision was unanimous.

Facts of the case:

The Bundestag committees perform a significant part of the plenary’s tasks. To a large extent, it is in the committees that the substantive deliberations take place and that the decisions of the Bundestag, which are ultimately a responsibility of the plenary as a whole, are prepared. The committees also exercise the information, control and inquiry functions of the Bundestag. The composition of the committees as well as the appointment of their chairpersons is based on the strengths of the parliamentary groups (§ 12 first sentence of the Bundestag Rules of Procedure). Committee members are designated by the parliamentary groups (§ 57(2) first sentence of the Bundestag Rules of Procedure).

Committee chairpersons fulfil presiding and representative functions. They prepare, convene and chair committee meetings and implement the committee’s decisions (§ 59(1) of the Bundestag Rules of Procedure). In fulfilling their official duties, the chairpersons are required to remain party-politically neutral.

§ 58 of the Bundestag Rules of Procedure stipulates that the committees ‘appoint’ their chairpersons and deputy chairpersons in accordance with the agreements reached in the Council of Elders (§ 6(2) second and third sentence of the Bundestag Rules of Procedure). It has been the custom since the first parliamentary term that the parliamentary groups strive to reach an agreement in the Council of Elders regarding which parliamentary group will be allocated the chairpersonship of which committee. If such an agreement cannot be reached, the chairpersonships are allocated by sequential selection based on the method of St. Laguë/Scheper (Zugriffsverfahren). The parliamentary groups alternatingly select one vacant committee chairpersonship in an order determined on the basis of the strength of the respective parliamentary group in the Bundestag, such that the chairpersonships are sequentially allocated. The committees appoint their chairpersons in their constituent meetings. The parliamentary group exercising the right of nomination declares whom it proposes for the chairpersonship. Up to and including the 18th parliamentary term (2013-2017), the subsequent procedure was as follows: If the proposal was not objected to or if the reaction of the committee members indicated general approval, it was considered to be confirmed by acclamation. Only if an objection was raised, was an election held. There have only been few instances of this happening.

During the 19th parliamentary term, elections for the committee chairpersonship were held in multiple committees after objections had been raised by committee members of other parliamentary groups. At the time, the candidates nominated by the applicant reached the required majorities. Among them was the Bundestag member Brandner in the Committee on Legal Affairs and Consumer Protection (Committee on Legal Affairs). In the years 2018 and 2019, members of this committee objected to the demeanour of the chairman at events of the German Bar Association (Deutscher Anwaltverein) held on 28 February 2018 and 15 January 2019. They criticised that the chairman had not exercised the necessary amount of party-political restraint and had thereby failed in his task of representing the committee as a whole. During the second half of 2019, Bundestag member Brandner raised public outrage through multiple posts on the social media platform ‘Twitter’. Against this backdrop, the Committee on Legal Affairs, following a motion filed by the spokespersons of the parliamentary groups of CDU/CSU, SPD, FDP, DIE LINKE and Bündnis 90/Die Grünen, voted 37:6 to recall Bundestag member Brandner from his position as committee chairman on 13 November 2019. From then on, his deputy chaired the committee.

At the commencement of the 20th parliamentary term, the chairpersonships of the committees were also allocated by sequential selection. The applicant was allocated the chairpersonships in the committees on Internal Affairs and Community (Committee on Internal Affairs), Health (Committee on Health) and Economic Cooperation and Development (Committee on Development). Following a motion by the governing parties, the chairpersons of these committees were selected by secret ballot during the constituent meetings of the committees on 15 December 2021. The candidates proposed by the applicant did not receive the required majority in any of these elections. The chairpersonships are since vacant; the committees are chaired by their respective deputy chairpersons.

The applicant claims that the respondents (i.e. the aforementioned committees, the Bundestag as well as the President and the Presidium of the Bundestag) have violated its right to equal treatment as a parliamentary group, its right to a fair and uniform interpretation of the Bundestag Rules of Procedure and its right to an effective opposition.

Key considerations of the Senate:

A. I. The applications are admissible insofar as the applicant takes action against the Committee on Legal Affairs (2 BvE 1/20) and the Committees on Internal Affairs, Health and Development (2 BvE 10/21) and claims that the decision for electoral removal of its chairperson from office and determining the chairpersons by free majority voting violates its right to equal treatment as a parliamentary group under Art. 38(1) second sentence of the Basic Law in conjunction with the right to a fair and uniform application of the Bundestag Rules of Procedure.

II. The remainder of the applications are inadmissible. To the extent that they are directed against the Bundestag in its entirety and, in proceedings 2 BvE 10/21, additionally against the President of the Bundestag and the Presidium, these parties lack passive legal standing (passive Prozessführungsbefugnis). In Organstreit proceedings, only the party responsible for the contested measure has passive legal standing and is therefore the correct respondent.

1. The decision for electoral removal that was challenged in the proceedings 2 BvE 1/20 was made by the Committee on Legal Affairs. There is no indication that the decision for electoral removal can be attributed to the Bundestag in its entirety.

2. The elections challenged in proceedings 2 BvE 10/21 are attributable to the respective committees. It is neither demonstrated nor otherwise evident why the purely organisational role of a Vice President of the Bundestag during the elections in the constituent meetings of the committees and the act of declaring the results would lead to a legal responsibility of the Bundestag or its President for holding the elections.

B. To the extent that they are admissible, the applications are unfounded.

I. 1. Only the Basic Law, not the Bundestag Rules of Procedure, constitute the standard of review. Rights that are only granted by the Bundestag Rules of Procedure cannot be independently invoked in Organstreit proceedings.

2. a) Art. 38(1) second sentence of the Basic Law grants Bundestag members the right to equal participation in the parliamentary decision-making processes that is necessary to exercise their mandate. As political forces, the parliamentary groups are entitled to be treated both equally and according to their strength. The Bundestag members’ right to participation also extends to the committees. In principle, the composition of every committee, insofar as it fulfils tasks of the plenary or prepares its decisions, must be a small-scale representation of the plenary and mirror its distribution of seats. This requires that the strength of the parliamentary groups in the plenary are reflected as accurately as possible at the committee level.

However, the principle that committees must reflect the composition of the plenary (Grundsatz der Spiegelbildlichkeit) does not apply to bodies and functions that are purely organisational and to which the principle of equal participation in the tasks constitutionally conferred to the Bundestag does therefore not apply. Art. 38(1) second sentence of the Basic Law in itself does therefore not grant a claim of access to presiding roles that do not involve shaping the parliamentary formation of the political will in substantive terms. Consequently, the restrictions that the Bundestag Rules of Procedure impose on the allocation of committee chairpersonships, fall within the scope of the Bundestag‘s autonomy to determine its own rules of procedure. The access to the position of committee chairperson does not constitute a specific membership right of the Bundestag members.

b) However, the Bundestag remains bound by the principle of equality even beyond the participation of the Bundestag members and their associations in the formation of the parliamentary will in the strict sense and in the organisational decisions of the Bundestag. Art. 38(1) second sentence of the Basic Law establishes a status of formal equality of the Bundestag members and their associations. The principle of equality is more than just a purely objective legal principle. It defines the status of the Bundestag members and their associations and therefore accords them a right to be treated in line with this principle. The constitutional right to equality is expressed, inter alia, in the Bundestag members’ and their associations’ right to a fair and uniform interpretation and application of the Bundestag Rules of Procedure. By adopting rules of procedure, the Bundestag binds itself to observing them and is compelled to apply the rights it has granted in a uniform and reasonable manner. The right to equality – as an entitlement to equal participation – therefore also extends to such participation rights that go beyond those specific rights of Bundestag members and their associations that follow directly from Art. 38(1) second sentence of the Basic Law.

3. a) Pursuant to Art. 40(1) second sentence of the Basic Law, the Bundestag decides on its internal organisation and procedures by virtue of its autonomy to adopt its own rules of procedure. In doing so, the Bundestag has considerable discretion. In this regard, not only the enactment, but also the interpretation and application of the Bundestag Rules of Procedure are, in principle, the responsibility of the Bundestag itself.

b) Special constitutional justification requirements apply if the Bundestag Rules of Procedure restrict the specific participation rights that its members and their associations are accorded by virtue of their mandate. By contrast, the same requirements do not apply if the Bundestag Rules of Procedure do not affect the specific membership rights enshrined directly in Art. 38(1) second sentence of the Basic Law, but only the Bundestag members’ formal equality status regarding participation in legal positions – a status which is only granted by the Bundestag Rules of Procedure. In such cases, a constitutional review is only carried out to determine whether the relevant provisions of the Bundestag Rules of Procedure or their interpretation and application are obviously unreasonable and thus arbitrary.

II. Measured against these standards, there has been no violation of the applicant’s right to equal treatment as a parliamentary group under Art. 38(1) second sentence of the Basic Law in conjunction with the principle of fair and uniform interpretation of the Bundestag Rules of Procedure.

1. a) The status as Bundestag member and, derived from it, the legal position of the parliamentary groups under Art. 38(1) second sentence of the Basic Law do not guarantee a right to be allocated a chairpersonship. The principle that committees must reflect the composition of the plenary does not apply to the presiding roles in the Bundestag. It does not apply to such roles which are of a purely organisational nature.

b) Based on the right to equal treatment of Bundestag members and, by consequence, of their associations (Art. 38(1) second sentence of the Basic Law), the applicant may claim that, in allocating the committee chairpersonships, it be treated in a manner that corresponds to a fair and uniform interpretation and application of the provisions in the Bundestag Rules of Procedure that concern the appointment of committee chairpersons. § 12 first sentence of the Bundestag Rules of Procedure stipulates that the allocation of the chairpersons shall be based on the strengths of the parliamentary groups. Simultaneously, § 58 of the Bundestag Rules of Procedure prescribes that the committees ‘appoint’ their chairpersons.

2. The fact that elections were held for the committee chairpersons in the Committees on Internal Affairs, Health and Development (2 BvE 10/21) – positions that are in principle allocated to the applicant pursuant to § 12 of the Bundestag Rules of Procedure – does not violate the applicant’s right to equal treatment. The principle of a fair and uniform interpretation of the Bundestag Rules of Procedure does not preclude interpreting and applying the provisions under § 12 and § 58 of the Bundestag Rules of Procedure in such a manner as to determine the committee chairpersons by way of a majority vote in the respective committees. Interpreting and applying these provisions in this way is not obviously unreasonable.

a) Regulating the allocation procedure of committee chairpersonships falls within the scope of the Bundestag’s autonomy to adopt its own procedural rules. The allocation procedure itself therefore is an internal parliamentary matter, which the Bundestag can organise autonomously within the framework of the constitutional order. There is no indication that the chosen system and its specification under § 12 and § 58 of the Bundestag Rules of Procedure have exceeded the constitutional limits.

b) The way in which the committees concerned have interpreted § 12 and § 58 of the Bundestag Rules of Procedure is not objectionable under constitutional law. They assume that § 58 of the Bundestag Rules of Procedure warrants an interpretation that committees are authorised to decide themselves on whom to appoint as their chairpersons and that committees may choose to hold elections to select one of their members for this position, without further restrictions applying in this respect. According to this interpretation, the parliamentary groups do not have a right to simply designate a chairperson. This interpretation is not obviously unreasonable.

Elections that are permissible under the Bundestag Rules of Procedure to fill presiding roles in the Bundestag must be free elections. The increased legitimacy that elections normally confer could not be achieved if there was an obligation to elect a specific candidate. It would be incompatible with the concept of free elections if a parliamentary group had a claim to a specific electoral result.

The Bundestag Rules of Procedure may therefore subject the participation of a parliamentary group in filling the positions of committee chairpersons of the Bundestag to the prerequisite of gaining a majority in free elections held in the respective committees. Thus, the participation is limited to the parliamentary group’s right to propose a candidate for election and to the free election being duly conducted.

c) Lastly, there is also no indication in the cases at issue here that § 12 and § 58 of the Bundestag Rules of Procedure have been applied in a manner that violates the principle of a fair and uniform application of the Bundestag Rules of Procedure.

3. The electoral removal of the chairman of the Committee on Legal Affairs on 13 November 2019 (2 BvE 1/20) does also not violate the applicant’s right to equal treatment.

a) The Committee on Legal Affairs was entitled to assume that it was generally authorised to remove its chairperson by holding a vote on the matter. The Committee on the Scrutiny of Elections, Immunity and the Rules of Procedure (Committee on the Scrutiny of Elections) shared this assumption: In its decision of 7 November 2019 interpreting § 58 and § 12 of the Bundestag Rules of Procedure, the Committee on the Scrutiny of Elections held that these provisions allow for the electoral removal of a committee chairperson, even if they do not explicitly grant such a right, because the electoral removal of the chairperson is an act that reverses the committee’s appointment of its chairperson (actus contrarius). The plenary endorsed this decision. From a constitutional law perspective, the position of committee chairperson is not protected in a way that precludes such an electoral removal. This interpretation of the Bundestag Rules of Procedure is not obviously unreasonable.

The fact that the Bundestag decided that the electoral removal of the vice president of the parliamentary group DIE LINKE following the group’s dissolution was impermissible does not warrant a different conclusion. It is at least not obviously unreasonable if different rules apply for Presidium members on the one hand and committee chairpersons on the other with respect to the possibility of their electoral removal. The roles of the Presidium members and those of the committee chairpersons differ to an extent that allows for differences in the application of the Bundestag Rules of Procedure (§ 2 and §§ 58, 12) with regard to the possibility of electoral removal.

b) The way in which the Committee on Legal Affairs made use of its authority in terms of electoral removal, which is granted by the Bundestag Rules of Procedure, is not objectionable under constitutional law.

aa) The assumption that a possible electoral removal of the committee chairperson falls within the competence of the committee itself is reasonable and in line with the Bundestag‘s interpretation of § 58 of the Bundestag Rules of Procedure. Because the electoral removal of the chairperson is the act of reversing their ‘appointment’, it is consistent to assume that the competence to decide on the electoral removal, too, lies with the committee.

bb) The way in which the Committee on Legal Affairs proceeded in the lead-up to the decision on the motion for a vote of removal is also not objectionable under constitutional law. The applicant’s committee members were given the opportunity to submit statements. There was thus no violation of the right to a fair proceeding. The committee voted in favour of removing its chairman with a majority of 37 to 6 votes. The simple majority necessary for an electoral removal (Art. 42(2) first sentence of the Basic Law) was exceeded by a wide margin.

cc) Furthermore, the electoral removal of the chairman was not arbitrary. There is no indication that the removal was based on considerations that had no factual connection with the position of the chairman or with his ability to perform his duties in an adequate manner. In light of a series of incidents that had led to considerable irritation among the general public, but also among the professional public, the committee majority came to the conclusion that its chairman would not fulfil the requirements of the position in a manner that was befitting of the office and that he as a person would burden the committee's work. The committee majority had evidently lost confidence in the committee chairman and his ability to conduct his duties in a manner befitting of his position. The committee majority was of the view that a fruitful and effective collaboration in the committee was no longer possible.