Order of 19 February 2025 - 2 BvE 3/19

State Funding of the Desiderius Erasmus Foundation - Order of execution

In an order published today, the Second Senate of the Federal Constitutional Court dismissed an application by the political party Alternative für Deutschland (AfD) for a subsequent order of execution following the judgment of the Second Senate in these proceedings pronounced on 22 February 2023 (cf. Press Release No. 22/2023).

The applicant sought an order granting the retroactive payment of general grants to the Desiderius Erasmus Foundation (Desiderius-Erasmus-Stiftung e.V.) for the fiscal years 2019, 2020 and 2021. The application was unsuccessful. An order of execution under § 35 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) as sought by the applicant would constitute an impermissible extension of the decision to be enforced both for the fiscal years 2020 and 2021 and for the fiscal year 2019.

Facts of the case:

In the principal proceedings, the applicant (a political party), by way of Organstreit proceedings (dispute between constitutional organs (or political parties if they assert rights under Art. 21(1) of the Basic Law)), challenged, inter alia, the fact that the Desiderius Erasmus Foundation, a foundation recognised by the applicant as its affiliated political foundation, was excluded from the allocation of general grants to party-affiliated foundations for, among others, the fiscal years 2019, 2020 and 2021. In its judgment of 22 February 2023, the Federal Constitutional Court granted the relief sought by the applicant with regard to the fiscal year 2019. The applications pertaining to the fiscal years 2020 and 2021 were dismissed by the Federal Constitutional Court because they had not been lodged within the statutory time limit.

In its reasoning, the Senate held that the adoption of the Federal Budget Act violated the right of the applicant to equal opportunities in political competition under Art. 21(1) first sentence of the Basic Law (Grundgesetz – GG) insofar as the resulting 2019 budget enabled general grants to be awarded to political foundations without this being based on a separate act of Parliament.

Key considerations of the Senate:

The application is inadmissible. While the Federal Constitutional Court may subsequently order the execution of its decisions under § 35 of the Federal Constitutional Court Act, such orders of execution are strictly ancillary to the underlying decision on the merits, which means that such orders can neither modify nor expand that decision. The execution order sought by the applicant does not fulfil these requirements.

With regard to the fiscal years 2020 and 2021, this applies simply because no executable decision on the merits exists.

With regard to the fiscal year 2019, the judgment contains a decision on the merits insofar as it establishes that the German Bundestag as respondent violated the applicant’s right to equal opportunities in political competition under Art. 21(1) first sentence of the Basic Law by adopting the 2019 Federal Budget Act because the ensuing interference lacked a separate act of Parliament, which would have been necessary for justifying the interference. The respondent’s resulting obligation – to avoid the violation of the Constitution established in the judgment in the future – is not covered by the present application; rather, the applicant only seeks redress for previous violations of its rights in the form of retroactive payments for past fiscal years.

However, the judgment does not contain an executable obligation for the respondent to (retroactively) include the Desiderius Erasmus Foundation in the group of political foundations who were awarded grants in the 2019 fiscal year. In particular, the judgment does not impose an obligation on the Federation to grant the applicant redress for the violation of its right to equal opportunities in political competition under Art. 21(1) first sentence of the Basic Law that was found with regard to the 2019 fiscal year by retroactively awarding it general grants for this time period. Such an obligation to grant redress can be found neither in the judgment’s operative part nor in the reasons on which the judgment rests. It is also not inherent in the finding that the constitutional rights of the applicant have been violated; rather, it would go beyond this finding.