Requirement that the composition of parliamentary committees mirror that of parliament does not apply to working groups of the mediation committee

Press Release No. 70/2015 of 22 September 2015

Judgment of 22 September 2015
2 BvE 1/11

The requirement that the composition of parliamentary committees mirror that of Parliament (Prinzip der Spiegelbildlichkeit) does not apply to working groups of the Mediation Committee. This was decided by the Second Senate of the Federal Constitutional Court in Organstreit proceedings (translator’s note: dispute between the highest federal organs or other parties referred to in Art. 93 sec. 1 no. 1 of the Basic Law) today. The proceedings were instituted by two former members of the Bundestag [German Parliament] and by the parliamentary group of “THE LEFT PARTY” („DIE LINKE“) against the Mediation Committee, the German Bundestag and the Bundesrat. In part, the application is already inadmissible. In particular, creation of the working group in December 2010 without participation of the applicants cannot be attributed to the Bundestag or the Bundesrat, but only to the Mediation Committee. In this respect, the application is also unfounded. To prepare political compromise between Bundestag and Bundesrat, the Mediation Committee may use formal and informal bodies that are composed according to other criteria than mirroring the composition of the Mediation Committee.

Facts of the Case and Procedural History:

Proceedings were instituted by two former members of the German Bundestag who, at the same time, were members of the Mediation Committee and the parliamentary group of ”THE LEFT PARTY” of the Bundestag. The Organstreit proceedings challenge the applicants’ exclusion from participation in a working group and an informal discussion group that were established in the context of the mediation proceedings concerning the Act on Determining Standard Benefits and Amending the Second and the Twelfth Book of the Code of Social Law (Gesetz zur Ermittlung von Regelbedarfen und zur Änderung des Zweiten und Zwölften Buches Sozialgesetzbuch). For further details please see press release no. 12/2015 of 4 March 2015 [translator’s note: This press release is only available in German].

Key Considerations of the Senate:

1. Pursuant to § 18 sec. 1 no. 2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), Justice Müller is debarred from exercising his duties in the present proceedings. He has already been involved in the same case due to his office or profession. As Minister-President of the Saarland and as a member of the Mediation Committee he participated in the mediation proceedings at issue and contributed to the challenged decisions. His involvement cannot be regarded as mere participation in the legislative process within the meaning of § 18 sec. 3 no. 1 BVerfGG, which would not debar him from exercising his duties. This provision does not apply if the proceedings before the Federal Constitutional Court are not directed against a law enacted with the participation of the Justice, but – as in the case at hand – against specific events during the legislative process in which the Justice participated.

2. The applications are admissible only in part.

a) The Mediation Committee is the only suitable respondent, and only with regard to application no. 1 concerning the composition of the working group.

Creation of the working group on the Act on Determining Standard Benefits and Amending the Second and the Twelfth Book of the Code of Social Law and its composition excluding members of the Bundestag belonging to the parliamentary group ”THE LEFT PARTY” is attributable to the Mediation Committee. The decision was taken at a meeting of the members of the Mediation Committee that took place on invitation of the chairman of the Mediation Committee. Its object was to establish a working group of the Mediation Committee. The fact that the decision was not taken in a formal Committee meeting, but during an informal meeting of its members, does not preclude attribution. The same holds true for the fact that a person who was not a member of the Committee also took part in the meeting. The decisive factor is that the circumstances as a whole are such as to allow attributing both the meeting and the decision to the Mediation Committee.

In as far as application no. 1 is directed against the German Bundestag and the Bundesrat, it is inadmissible. The creation of an informal working group cannot be attributed to them. While the Mediation Committee is a joint body of the German Bundestag and the Bundesrat, their members delegated to the Mediation Committee are not bound by instructions from them.

b) Application no. 2 is inadmissible. It asserts that the respondent violated the applicants’ rights by refusing to appoint applicant Dagmar Enkelmann as a member of the informal discussion group and to permit her to participate therein. However, this refusal is not attributable to one of the respondents.

Even the submissions of the applicants indicate that the discussions were not attended by all of the members of the Mediation Committee, whereas non-members did attend. According to the unchallenged submissions of the respondents, the Mediation Committee neither decided to take up discussions, nor did it initiate or organise them. The same holds true with regard to the Bundestag and the Bundesrat. In addition, the applicants have not explained how the respondents could have influenced who participated in the discussion rounds or how they could have stopped those discussion rounds. Nor are such possibilities apparent. The mere fact that members of the Mediation Committee participated in the discussions and that premises of the Bundesrat were supposedly used for the first meeting does not make the discussions sufficiently similar to procedures of the respondents in terms of form and organisation that would justify attributing the discussions to one of them.

3. The admissible part of application no. 1 is unfounded. The Mediation Committee’s refusal to appoint member of Parliament Katja Kipping as a member of the Mediation Committee’s working group and to permit her participation therein did not violate the applicants’ rights under Art. 38 sec. 1 sentence 2 and Art. 77 sec. 2 of the Basic Law (Grundgesetz – GG).

a) Pursuant to Art. 38 sec. 1 sentence 2 GG, members of the German Bundestag are representatives of the entire people. This presupposes equal rights of participation for all members of Parliament and includes the right to equal participation in the process of parliamentary policy formulation. This right of participation does not only concern the act of decision-making itself but also prior discussions. Public exchange of arguments is an essential element of democratic parliamentarianism.

In principle, the right of participation of all members of Parliament extends to committees of the German Bundestag. As committees perform an essential part of parliamentary work, they must generally be a miniature version of the Plenary and, in their composition, must mirror the composition of the Plenary. Under the principle of mirror-image compositions, a parliamentary group’s strength in the Plenary has to be mirrored as exactly as possible. This principle also applies to sub-committees, but not to bodies and functions that are merely of an organisational nature.

The principle of mirror-image compositions also applies to electing members of the Bundestag to serve as members of the Mediation Committee. While, as a joint committee of two constitutional organs, the Mediation Committee cannot be compared to a Bundestag committee as such, its relevance in the context of the legislative process equals that of the Bundestag committees.

b) However, the principle of mirror-image compositions in Parliament and committees does not apply to working groups of the Mediation Committee, regardless of whether they were established by formal Committee decision or informally.

aa) In general, regulating the details of organisation and the course of business of such working groups is included in the power to adopt rules of procedure for the Mediation Committee (Geschäftsordnungsautonomie), which under Art. 77 sec. 2 sentence 2 GG pertains jointly to the Bundestag and the Bundesrat. The Mediation Committee’s Rules of Procedure merely provide in § 9 that the Committee may establish sub-committees. Since the power to adopt rules of procedure entails broad leeway, the standard of constitutional review is limited to determining whether the provision complies with mandatory constitutional requirements concerning the composition of and the rights of participation within these bodies.

bb) Such mandatory requirements cannot be derived from Art. 38 sec. 1 sentence 2 and Art. 77 sec. 2 GG. Neither does the right of the members of the German Bundestag to, in general, participate equally in parliamentary policy formulation extend to working groups of the Mediation Committee, nor are such groups involved in Parliament’s representation of the people in a way that would require their composition to mirror the parliamentary groups’ strength in the Plenary as exactly as possible.

In fact, the working groups of the Mediation Committee are not of a purely organisational nature, but have the task of contributing, through intensive substantive work, towards finding a compromise for a bill that is capable of securing a majority. Without doubt, such compromise proposals to a certain degree result in anticipating decision-making in the Mediation Committee with regard to content. However, this is one feature of the specific modus operandi in the Mediation Committee that can be compared neither to the deliberative procedure in the German Bundestag nor to the decision-making process in the Bundesrat.

It is the purpose and objective of mediation proceedings to achieve political compromise between the two legislative bodies. They do not serve the function of public parliamentary negotiations and decision-making. Rather, to achieve an efficient legislative process, the Basic Law allows delegating deliberation of legislative bills to a Committee that is, by composition and procedure, particularly suitable to work out a compromise. To fulfil this task, the Mediation Committee possesses – within the limits of its rules of procedure – broad leeway for autonomously designing its procedure. This entails the power to prepare decision-making by establishing formal and informal bodies that are, depending on the relevant topic, composed according to other criteria than a mirror-image composition.

The search for consensus also determines the course of business in practice. In the practice of the Mediation Committee, establishing working groups when working on difficult and complex issues serves mainly to introduce external expertise, i.e. by involving experts from parliamentary groups or ministries or other experts. The flexible composition and the informal character of such working groups open up the deliberation process and allow introducing new aspects. This adds to the probability of reaching an agreement. The Mediation Committee is free to adopt the results of the working groups, to reject them completely, or to modify them. In this process, all members, including those who were not part of the working groups, may submit their own proposals. The fact that members of smaller parliamentary groups will usually not succeed in securing a majority for their amendments is not a particularity of the mediation procedure but a feature that is also inherent in parliamentary deliberations and decision-making in the German Bundestag and its committees.