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Organstreit proceedings challenging the allocation of funds to parliamentary groups, political foundations and for employees of members of the Bundestag by the 2012 budget are inadmissible
Press Release No. 58/2015 of 04 August 2015
Order of 15 July 2015
2 BvE 4/12
By unanimous order, the Second Senate of the Federal Constitutional Court rejected as inadmissible Organstreit (dispute between state organs) proceedings instituted by the Ecological-Democratic Party (Ökologisch-Demokratische Partei – ÖDP) against the German Bundestag (§ 24 of the Federal Constitutional Court Act [Bundesverfassungsgerichtsgesetz – BVerfGG]). The applicant considers the allocation of funds to parliamentary groups, political foundations and for employees of members of the Bundestag by the 2012 budget to constitute concealed funding of the parties represented in the Bundestag and claims a violation of its right to equal opportunities in the political process (Recht auf Chancengleichheit im politischen Wettbewerb). As the application challenges a legal situation unchanged since the 1990s, it comes too late. Apart from that, the submissions of the applicant, who challenges the mere approval of the funds by the federal budget, do not suffice: While the right to equal opportunities can indeed be affected by the allocation of state funds, the applicant, in cases such as the present one in which the funds are not provided to political parties but to third parties, would have been required to show that the Bundestag – being the organ competent to pass the budget – permitted the funds to be used in an abusive manner merely by approving them.
Facts of the Case:
The applicant in the Organstreit proceedings is the Ecological-Democratic Party, founded in 1981. It challenges the fact that the 2012 budget allocated funds to parliamentary groups in the Bundestag (EUR 80.835 million), to members of the Bundestag in order to pay for employees (EUR 151.823 million) as well as to party-affiliated foundations (EUR 97.958 million). In addition, it criticises the absence of procedures for approval and oversight to prevent abuse of state grants by the beneficiaries. For these reasons, it asserts a violation of the principle of equal opportunities (Art. 21 sec. 1 of the Basic Law [Grundgesetz – GG] in conjunction with Art. 3 sec. 1 GG) to the detriment of the political parties not represented in the German Bundestag.
Key Considerations of the Senate:
The applications to institute Organstreit proceedings are inadmissible.
1. Organstreit proceedings are no means to challenge any act or omission on grounds of unlawfulness but require a legally relevant act or omission on the part of the respondent that is capable of violating the applicant’s rights. The applicant is entitled to claim a violation of the right to equal opportunities in the political process under Art. 21 sec. 1 GG in conjunction with Art. 3 sec. 1 GG. This right constitutes an indispensable element of the free and open process in which the people forms opinions and reaches decisions as envisaged by the Basic Law. It is closely related to the principles of generality and equality of elections (Art. 38 sec. 1 sentence 1 GG); therefore, it must be understood in a strictly formal sense and imposes particularly strict limitations on the legislature’s discretion. In particular, the state must not distort existing competition in the political arena.
The right of political parties to equal opportunities may be affected by the allocation of state funds: Awarding public funds directly to political parties always impacts their possibilities of engaging in the political process. The same cannot simply be assumed if the funds are awarded to third parties – even if the purpose of the award has political features. In such cases the applicant needs to show in the Organstreit proceedings that the allocation of the funds leads to an interference with its right to equal opportunities.
If the allocation is based on a statutory provision, the applicant must bring proceedings within the time limit imposed by § 64 sec. 3 BVerfGG. This provision is intended to secure legal certainty by barring Organstreit proceedings after a certain period of time.
Should funds allocated by the budget legislature be used in violation of their purpose, one has to differentiate between approval of the funds and their use by the beneficiary. Not every use of funds in violation of their purpose means that the budget legislature by approving them violated the right of political parties to equal opportunities. Instead, such misuse must be attributable to the budget legislature. This is the case if the budget legislature awarded excessive funds or if it failed to take sufficient precautions for preventing the funds to be used in violation of their purpose.
2. The applicant’s submissions fail to satisfy these requirements.
a) Regarding the approval of EUR 80.835 million for parliamentary groups in the Bundestag by the 2012 budget law, the applicant has not sufficiently shown a violation of its right to equal opportunities.
aa) Its objections to the entitlement of parliamentary groups to funds under § 50 sec. 1 in conjunction with § 47 of the Members of the Bundestag Act (Abgeordnetengesetz – AbgG) can no more be taken into account in the present proceedings. Both provisions were enacted in 1994. The applicant would have had to challenge the provisions within the time limit imposed by § 64 sec. 3 BVerfGG. This finding is not altered by the fact that the applicant expressly does not challenge the provisions of the Members of the Bundestag Act but those of the 2012 Budget Act (Haushaltsgesetz 2012). Being bound by law and justice pursuant to Art. 20 sec. 3 GG, the respondent is obliged to award the parliamentary groups the funds they are due under the Members of the Bundestag Act. The substantive existence of this obligation can no more be questioned in these Organstreit proceedings.
bb) The applicant’s submissions do not show that parliamentary groups were awarded excessive amounts of funds that would have permitted their misuse. Its submission that compared to the 1960s the 2012 federal budget awarded fifty times as much nominally speaking and eight times as much in real figures does not in itself establish that the amount of the 2012 award was excessive. What would have been required is a comparison of the amount of funds necessary for fulfilling the tasks of the parliamentary groups with the actual amount of funds awarded to them. Yet, no such submission was made by the applicant. Nothing else results from the applicant instead pointing to expenditures of parliamentary groups for public relations, to their increase by 62 percent in 2007 and to the fact that the small parliamentary groups have higher public relations expenses than the two large groups – both in an absolute and a relative sense.
cc) It already appears doubtful whether based on the applicant’s submissions one can assume that noticeable amounts of the funds awarded to the parliamentary groups in the Bundestag by the 2012 federal budget were misused for funding of political parties in violation of the Constitution. The applicant claims a reversal of the burden of producing evidence since the concerned parties decide “in their own interest”; according to the applicant, this results in a presumption that the decision made was incorrect and also indicates a danger of abuse. This line of argument refers to the Senate’s jurisprudence on electoral law from which, however, no such consequence for the burden of production follows in these proceedings. What is more, the applicant ignores the fact that not the respondent but the parliamentary groups decide upon use of the funds on their own.
In any event, the applicant has not shown that the respondent by failing to exercise appropriate fore- and oversight permitted misuse of the funds awarded to parliamentary groups. Considering the statutory provisions in the Members of the Bundestag Act and in the Act on Political Parties (Parteiengesetz), there appears to be no considerable deficit concerning oversight and no structural deficit regarding execution. Although – due to the autonomy the Constitution grants the parliamentary groups – the Federal Auditor’s Office (Rechnungshof) does not review whether expenditures were politically necessary, it may nevertheless examine whether the strict requirement of using the funds only for the work of the parliamentary groups and the prohibition on using them for party work were observed.
This finding is confirmed by the audit reports on public relation expenditures made by the parliamentary groups in the Bundestag between 1999 and 2006, which were examined by the Senate. However, they contain nothing on the issue relevant in the case at hand whether any misuse of state funds awarded for specific purposes can be attributed to the budget legislature simply for having approved the awards.
b) Nor has the applicant sufficiently shown that its right to equal opportunities was violated by the allocation of EUR 151.823 million for personal assistants of members of the Bundestag by the 2012 federal budget.
aa) § 12 sec. 3 sentence 1 AbgG serves as basis for reimbursing members of the Bundestag for employment expenses. This provision was introduced to the Members of the Bundestag Act in 1995. Because the time limit imposed by § 64 sec. 3 BVerfGG has expired, the applicant is barred from bringing any challenges based on the existence of the legal entitlement under § 12 sec. 3 sentence 1 AbgG.
bb) Yet, § 12 sec. 3 sentence 1 AbgG establishes a right to reimbursement only for mandate-related expenses. Expenses for party work or campaign efforts undertaken by employees of members of the Bundestag will not be reimbursed. However, the applicant failed to show any misuse of funds that is attributable to the respondent in a way that justifies regarding the mere approval of the funds in the federal budget of 2012 as an interference with the applicant’s right to equal opportunities in the political process.
The applicant’s referral to an increase in the number of employees working for members of Parliament both in absolute terms and particularly in terms of employees working within the constituencies as well as to growth rates and the amount of funds allocated by the 2012 federal budget provides no indication that the number of employees or the amount of funds have reached a level exceeding what is necessary to support the members of the Bundestag in fulfilling their tasks.
It is doubtful whether the applicant by other means sufficiently showed misuse of funds awarded for employees of members of Parliament by the 2012 federal budget. The applicant’s claim of a reversed burden of production based on its allegation that allocating budgetary funds for employees of members of parliament is a decision “in parliament’s own interest” has already been dealt with above.
In any event, the applicant has not shown that the respondent by failing to exercise appropriate fore- and oversight permitted such misuse of these funds. Considering the existing statutory provisions, it would have had to show that the respondent did in fact fail to exercise sufficient oversight.
c) The applicant’s submissions concerning the general grants to political foundations – EUR 97.958 million in the 2012 budgetary year – also do not establish the possibility of a violation of the applicant’s right to equal opportunities. The Federal Constitutional Court rejected the notion that approval of general grants to party-affiliated foundations can violate the right to equal opportunities under Art. 21 sec. 1 GG as early as in 1986 (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 73, 1). The applicant’s submissions provide no reasons for why the Court should deviate from this jurisprudence.
d) The second application, which – if interpreted as to the applicant’s intention – aims at ordering the respondent to institute a specific procedure for approval and oversight that shall prevent misuse of state funds by the beneficiaries, is also inadmissible. It is inadmissible for the reason alone that for years the applicant tolerated the current practice of approval and oversight, which began to establish itself in the late 1990s at the latest, and thereby missed the six-month time limit imposed by § 64 sec. 3 BVerfGG.