Bundesverfassungsgericht

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Organstreit proceedings

The highest federal organs or equivalent organs can lodge an application with the Federal Constitutional Court if they disagree on their rights and obligations arising from the Basic Law. This is necessary because the organs have no authority over each other. Organstreit proceedings allow for judicial scrutiny of constitutional organs and thus protect the formation of the political will based on the separation of powers.

Organstreit proceedings are governed by 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. While they are not among the most common proceedings before the Federal Constitutional Court, they often raise fundamental issues that are highly relevant to the political order.

Examples

Important Organstreit proceedings in the past concerned the legal status of parliamentary groups and 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 further developing international agreements and the Bundestag’s right to information on European Union matters.

Requirements

Organstreit proceedings are adversarial proceedings between the applicant on the one hand and the respondent on the other. Apart from the highest federal organs that are explicitly listed in § 63 of the Federal Constitutional Court Act – the Federal President, the Bundestag, the Bundesrat and the Federal Government –, the Federal Convention, the Federal Chancellor, the Federal Ministers and individual members of the Bundestag have legal ability to file an application in Organstreit proceedings. Political parties also act as constitutional organs when they participate in the formation of the political will of the people. They can therefore defend their rights arising from Art. 21 of the Basic Law in Organstreit proceedings.

Parliamentary groups in the German Bundestag have a special role, as they can not only assert their own parliamentary rights in Organstreit proceedings, 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 bring proceedings before the Federal Constitutional Court to ensure respect for Parliament’s competences.

Other entities with legal ability to file an application in Organstreit proceedings may join proceedings and file applications if the Federal Constitutional Court’s decision in a given case is also relevant for the delimitation of their own competences.

Organstreit proceedings concern an act or an omission by the respondent. They often relate to issues arising from the law on political parties, electoral law or parliamentary law.

Applicants must claim a violation of or a threat to their own constitutional rights or obligations or the rights or obligations of the constitutional organ they are part of. Applicants must hold these rights vis-à-vis the respondent. In Organstreit proceedings, the Court does not review whether the respondent has violated other constitutional law, given that such proceedings do not serve to ensure general adherence to the Constitution, but to protect the rights of the respective constitutional organs.

The application must be filed within six months of the applicant obtaining knowledge of the respondent’s conduct. For the sake of legal certainty, there is no remedy for failure to comply with the time limit.

Decision

The Federal Constitutional Court rejects applications as unfounded if it does not find any violation of constitutional law. If an application is successful, the Federal Constitutional Court declares that the respondent’s act or omission violates a provision of the Basic Law. The Federal Constitutional Court does not reverse measures or declare them 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 where necessary (cf. Art. 20(3) of the Basic Law).