An application to the Federal Constitutional Court may be filed if highest federal organs, or actors that are equivalent to such organs, disagree on their respective rights and obligations under the Basic Law. This type of proceedings is necessary because the organs have no authority over each other. The Organstreit proceedings make it possible for constitutional organs to judicially scrutinise each other’s actions; thus, Organstreit proceedings protect political decision-making by enforcing the separation of powers.
Organstreit proceedings are regulated in Art. 93 (1) no. 1 of the Basic Law and §§ 63 et seq. of the Federal Constitutional Court Act. They have a “BvE” file reference. Organstreit proceedings are not among the most frequent types of proceedings at the Federal Constitutional Court, but they often raise fundamental issues that are highly relevant for the political system.
Important Organstreit cases in the past concerned the legal status of parliamentary groups as well as of Members of Parliament, the funding of political parties, the permissibility of electoral thresholds as well as the allocation of seats in Parliament, the constitutionality of dissolving the German Bundestag, the participation of the Bundestag in reviewing and improving treaties under public international law and the Bundestag’s right to be informed about matters concerning the European Union.
Organstreit proceedings are contentious proceedings, i.e. proceedings in which an applicant and a respondent oppose each other. Apart from the highest federal organs – the Federal President, the Bundestag, the Bundesrat and the Federal Government – that are explicitly mentioned in § 63 of the Federal Constitutional Court Act, the Federal Convention, the Federal Chancellor, the federal ministers and individual Members of the Bundestag are entitled to bring an action. Political parties exercise the function of a constitutional organ when they participate in political decision-making. They can therefore defend the rights accorded to them by Art. 21 of the Basic Law in Organstreit proceedings.
The parliamentary groups within the German Bundestag hold particular importance, as they may institute Organstreit proceedings not only to assert their own intra-parliamentary rights but also the rights of the Bundestag as a whole – even against the will of the parliamentary majority. Thus, the opposition or a parliamentary minority may request the Federal Constitutional Court to protect the Parliament’s competences.
Other parties that are entitled to institute Organstreit proceedings may join ongoing proceedings and file own applications if the Federal Constitutional Court’s decision in the case at hand is also relevant for the delimitation of their own competences.
The subject of Organstreit proceedings may be an act or an omission by the respondent. Cases often concern issues from the law on political parties, electoral law or parliamentary law.
Applicants must claim that either their own rights or obligations under the Constitution or those of the organ to which they belong are violated or threatened. Applicants must be entitled to these rights in the very relationship to the respondent in question. Whether the respondent has violated other provisions of constitutional law is not subject to review in Organstreit proceedings, since such proceedings do not serve to monitor general compliance with the Constitution but rather to protect a constitutional organ's rights vis-à-vis another constitutional organ.
The application must be filed within six months after the applicant has gained knowledge of the respondent’s contested conduct. This time limit is preclusive. In the interest of legal certainty, there is no remedy for not meeting the deadline.
The Federal Constitutional Court rejects applications as unfounded if constitutional law has not been infringed. In case of successful applications, the Federal Constitutional Court finds that the respondent’s contested act or omission violates a provision of the Basic Law. The Federal Constitutional Court does not annul acts or declare them to be void, nor does it oblige the respondent to perform specific acts. However, the constitutional organs are obliged to consider the Federal Constitutional Court’s decision and to implement it if necessary (cf. Art. 20 (3) of the Basic Law).