Order of 10 December 2024 - 2 BvE 15/23
In an order published today, the Second Senate of the Federal Constitutional Court rejected an application in Organstreit proceedings (disputes between constitutional organs) lodged by the Ökologisch-Demokratische Partei (ÖDP). The ÖDP claimed that when revising the Federal Elections Act (Bundeswahlgesetz – BWahlG) in 2023, the German Bundestag was required to abolish or modify the requirement to provide supporting signatures in order to nominate candidates for Bundestag elections.
Any party which has not been continuously represented in the German Bundestag or a Landtag (state parliament) since their last election by at least five members of Parliament nominated by that party must furnish supporting signatures to be able to participate in the Bundestag elections unless it is a party of a national minority. At least 200 signatures are required for each constituency nomination and up to 2,000 signatures are required for each Land party list (cf. § 20(2) third sentence, § 27(1) second sentence, each in conjunction with § 18(2) Federal Elections Act). The applicant, a political party that is not represented either in the Bundestag or in a Landtag, contests these requirements by way of an application in Organstreit proceedings and has recently applied for a preliminary injunction.
While the respondent – the German Bundestag – did not amend § 20(2) third sentence and § 27(1) second sentence of the Federal Elections Act, this does not amount to a violation of the applicant’s rights under Art. 21(1) first sentence of the Basic Law (Grundgesetz). While the signature quorums restrict the right to nominate candidates for election, this is justified in order to ensure that elections fulfil their function as an integrative process with regard to the formation of the political will of the people. It also does not violate the equal opportunities of political parties.
Facts of the case:
Pursuant to § 18(2) first sentence of the Federal Elections Act, a party which has not been continuously represented in the German Bundestag or a Landtag since the last election to the relevant assembly by at least five members of Parliament nominated by that party can only participate in the Bundestag elections if it has timely submitted a notice of participation to the Federal Returning Officer (Bundeswahlleiter) and the Federal Electoral Committee (Bundeswahlausschuss) has formally recognised it as a party for the election. Parties subject to this provision must furnish supporting signatures for constituency nominations and for their Land party lists. Their constituency nominations must bear the personal and handwritten signatures of 200 supporters who reside in the respective constituency. Land party lists – which may only be submitted by political parties – require at least one signature per every 1,000 persons who were eligible to vote in the respective Land in the last Bundestag election, up to a maximum requirement of 2,000 signatures. Political parties that have been represented in the German Bundestag or a Landtag by at least five members of Parliament do not need to furnish supporting signatures. The same applies to parties of national minorities.
The Act Amending the Federal Elections Act and the Twenty-Fifth Act Amending the Federal Elections Act (Gesetz zur Änderung des Bundeswahlgesetzes und des Fünfundzwanzigsten Gesetzes zur Änderung des Bundeswahlgesetzes, Act Amending the Federal Elections Act 2023) of 8 June 2023 introduced the second vote basis procedure into the Federal Elections Act. The legal provisions governing constituency nominations – to the extent that they are relevant here – were changed to stipulate that political parties can only submit constituency nominations if they also submit a Land party list and this Land party list is admitted for the election.
The applicant is a political party that is not represented in either the Bundestag or a Landtag, but which is represented by one delegate in the European Parliament. Its Organstreit application lodged in December 2023 is directed against the fact that the German Bundestag, when revising the Federal Elections Act in 2023, did not abolish or modify the requirement to provide supporting signatures in order to nominate candidates for Bundestag elections (§ 20(2) third sentence and § 27(1) second sentence, each in conjunction with § 18(2) Federal Elections Act). In its application for a preliminary injunction submitted November 2024, the applicant requests that for the duration of six months the signature quorum for constituency nominations be suspended and the quorum for the Land party lists be changed so that only the support of 0.25 per thousand persons eligible to vote is required, with a maximum requirement of no more than 500 signatures, or alternatively, no more than 1,000 signatures.
Key considerations of the Senate:
The fact that the respondent did not amend § 20(2) third sentence and § 27(1) second sentence of the Federal Elections Act did not amount to a violation of the applicant’s rights under Art. 21(1) first sentence of the Basic Law. The German Bundestag was not obliged to change these provisions to safeguard the rights of the applicant.
I. The Organstreit application is admissible. As a political party, the applicant has standing to assert that the failure to change a provision of federal electoral law constitutes a violation of its constitutional status under Art. 21(1) first sentence of the Basic Law. In particular, the Organstreit application was submitted within the six-month time period laid down in § 64(3) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), which commenced at the time of promulgation of the Act Amending the Federal Elections Act 2023.
II. The provisions requiring supporting signatures restrict the applicant’s right to nominate candidates for election and thereby its rights under Art. 21(1) first sentence of the Basic Law. However, these restrictions are justified. The Act Amending the Federal Elections Act 2023 did not give rise to any constitutional obligation to change these provisions.
1. The requirements to furnish supporting signatures for both constituency nominations and Land party lists are restrictions of the parties’ right to nominate candidates for election, which is essential for ensuring a variety of voting options. The applicant, which is represented neither in the German Bundestag nor in a Landtag, is affected by these requirements.
2. The restrictions are justified.
a) The restrictions aim to ensure that elections fulfil their function as an integrative process with regard to the formation of the political will of the people. Signature quorums, like other restrictions of the right to nominate candidates for election, serve to limit the number of candidates admitted. This limitation safeguards the nature of the election as an integrative process. Elections necessarily aggregate and generalise the political preferences of the electorate. Restrictions of the right to nominate candidates for election are therefore intended to integrate the votes of the electorate into an election result and thereby facilitate the formation of a stable majority that is able to govern. Signature quorums thus ultimately serve the same aim that justifies electoral thresholds. While electoral thresholds serve to restrict the ability of political parties to enter into Parliament and thus prevent the fragmentation of Parliament into many small groups, admission restrictions serve to prevent the fragmentation of votes during the election itself and thus reduce the risk of only a small number of votes being cast for each constituency nomination or Land party list. In constituency elections limiting the number of candidates allows for a larger number of votes to be cast for the successful candidate and thereby strengthens their democratic legitimation. The same applies to the number of party lists in proportional elections.
b) The requirement to furnish supporting signatures is suitable and necessary for this aim. Supporting signatures justify the assumption that submitted constituency nominations and Land party lists have at least some prospects of success. Other measures are not equally suitable to safeguard the nature of the election as an integrative process. The legislator has set such low requirements for recognition as a political party under the Political Parties Act (Parteiengesetz – PartG) that merely meeting these requirements is not sufficient to demonstrate that a nomination by a political party can be taken seriously. Nor is the legislator required to design electoral law in a different way, such as in the form of an absolute majority requirement with run-off elections or a proportional system with alternative voting. Art. 38(3) of the Basic Law affords the legislator a broad leeway within which the legislator is in principle free to choose the electoral system and to make modifications.
c) The signature quorums for constituency nominations as well as for Land party lists do not violate the freedom of political parties and are therefore not objectionable. On the one hand, the quorums must be high enough for the number of signatures to justify the conclusion that the nomination is not completely without prospects of success. On the other hand, they must not be so high as to make it practically impossible or unduly complicated for a new party to participate in an election. On this basis, the respective signature quorums are not objectionable. Considering that the average number of eligible voters per constituency is 215,000, the requirement to submit 200 supporting signatures in order to nominate constituency candidates corresponds to approximately one signature per thousand persons eligible to vote in the average constituency. The number of supporting signatures required for Land party lists is not substantially higher. Both quorums are set significantly below 0.25 per cent of the persons eligible to vote, which the Federal Constitutional Court has found to be constitutional in its previous case law. The current electoral conditions do not require a different assessment.
d) The fact that the requirement to furnish supporting signatures is limited to political parties that must give notice of their participation in elections under § 18(2) of the Federal Elections Act and are not parties of national minorities does not violate the equal opportunities of political parties. It is permissible under constitutional law for the legislator to provide special support for parties of national minorities. The fact that a political party is already represented in Parliament indicates that its nominations need to be taken seriously regardless of supporting signatures. The legislator may infer that the political effects of a party’s representation in Parliament will stabilise its voter base. Furthermore, exempting parties already represented in Parliament from the requirement to furnish supporting signatures has mixed effects for the political parties subject to the requirement. On the one hand, the effort needed to collect supporting signatures and the possibility that a nomination remains unsuccessful because it cannot gather sufficient support constitute a disadvantage for ’small’ political parties. On the other hand, as each voter may only support one nomination (§ 34(4) no. 4, § 39(3) fifth sentence Federal Electoral Regulation (Bundeswahlordnung – BWO)), it is easier for affected parties to find support, as they must only compete among each other and with independent candidates for the support of persons eligible to vote and not with political parties already represented in Parliament.
The foregoing justifies an exemption for political parties that have been continuously represented in the Bundestag since the last election by at least five members of Parliament on the basis of nominations made by those parties. The privileged treatment of a political party that is merely represented in a Landtag to the required extent is also not objectionable. The legislator may take into account the federalist structure of the party landscape and provide support for those political parties that seek to utilise their regional strength in a Land to participate in the formation of the political will at the federal level. That such privileged treatment is not extended to political parties that are represented in the European Parliament does not violate the rights of the applicant. Due to a lack of comparability of the factual situations, a duty on the part of the legislator to treat the applicant – which has only a single delegate in the European Parliament – equally, does not come into consideration.
3. The Act Amending the Federal Elections Act 2023 did not give rise to any constitutional obligation to change the signature quorums.
a) The requirement to furnish supporting signatures in order to nominate constituency candidates continues to serve the purpose of limiting the number of nominations. While the legislator is free to infer from the admission of a Land party list for election that the constituency candidates also have prospects of success, signature quorums can nonetheless be maintained, given the function that they serve. Under the second vote basis procedure introduced in 2023, elections in the individual constituencies, which are conducted by majority vote, still provide the democratic legitimation that leads to a prioritised consideration of the successful constituency candidates when allocating seats in Parliament.
b) The legislator may also continue to require signature quorums for Land party lists. As the federal electoral law retains the principles of proportional representation, the framework for the purpose of the signature quorums has not changed.
The size of the signature quorum does also not require modification. It is true that political parties cannot participate in Bundestag elections based solely on constituency nominations. However, this does not make it impossible or unduly complicated for a ’small’ party or a new party to participate in an election. In past Bundestag elections, a significantly higher number of ’small’ and new political parties participated in the elections with – often only a few – Land party lists than parties that only submitted constituency nominations. With this in mind, no significant decline in the number of political parties participating in Bundestag elections is to be expected, even under the new provisions. Finally, having stricter prerequisites for ‘small’ political parties to nominate candidates than for individual candidates is justified by the fact that the former seek to participate in the election as a party. Their constituency candidates therefore do not compete in the elections only for themselves but rather for the party.
III. With the rejection of the Organstreit application, the application for a preliminary injunction becomes inapplicable.