Federal Constitutional Court - Press office -

Press release no. 122/2009 of 23 October 2009

Order of 13 October 2009 – 2 BvE 4/08 –

Organstreit proceedings brought by the Left parliamentary group on the 
Bundeswehr deployment in Kosovo unsuccessful


Since 1999, the Bundeswehr (German Federal Armed Forces) has been 
participating in the international KFOR mission in Kosovo, which, on the 
basis of a UN mandate, seeks to prevent the violent confrontations 
between Serbs and Kosovo Albanians from flaring up again. In February 
2008, Kosovo unilaterally declared its independence, breaking away from 
Serbia, and has since been recognised by a large number of states, among 
them the Federal Republic of Germany. After the declaration of 
independence, the Federal Government continued the Bundeswehr’s ongoing 
military commitment. The Organstreit proceedings (proceedings on a 
dispute between supreme constitutional bodies) brought by the Left Party 
parliamentary group are directed against this. The Left Party 
parliamentary group is of the opinion that Kosovo’s declaration of 
independence has essentially changed factual and legal circumstances, 
and it applies to find that a new approval would have had to be obtained 
from the German Bundestag before continuing the KFOR deployment of the 
Bundeswehr. 

By its order of 13 October 2009, the Second Senate of the Federal 
Constitutional Court rejected the application directed against the 
Federal Government pursuant to § 24 of the Federal Constitutional Court 
Act (Bundesverfassungsgerichtsgesetz – BVerfGG). According to this 
provision, applications may be rejected by a unanimous order of the 
Court if they are inadmissible or clearly unfounded. The Senate does not 
object to the Bundeswehr deployment having been continued after Kosovo’s 
declaration of independence. It held that the Federal Government was not 
constitutionally obliged to obtain a new approval from the German 
Bundestag without delay. 

The Federal Constitutional Court’s case-law has clarified that the 
Bundeswehr is a parliamentary army. Every deployment of armed forces 
therefore requires the essential approval of the German Bundestag, which 
in principle must be obtained in advance. It follows from this 
principle, which is known as the requirement of parliamentary approval 
(Parlamentsvorbehalt), that the Federal Government must obtain the 
German Bundestag’s approval of a deployment of armed forces anew if 
factual or legal circumstances have ceased to exist which have been 
mentioned as necessary preconditions for a deployment in the resolution 
of approval. With regard to the question of when a new resolution of 
approval by the German Bundestag will be necessary, aspects of legal 
certainty and legal clarity are decisive, and must therefore be taken 
into account, in the present case. Accordingly, a parliamentary 
resolution of approval cannot lose its effect if the continued existence 
of the circumstances on which the Bundestag based its approval merely 
becomes doubtful. Instead, the requirement of parliamentary approval 
demands that in cases of doubt, the Bundestag itself assume 
responsibility of the final assessment of the circumstances in question. 
As the master of its own decision on approval, the Bundestag has the 
possibility under constitutional law to itself disperse doubts about the 
continued validity of its approval. If necessary, it can exercise its 
right to call back the troops, i.e. it can formally end a deployment of 
armed forces. Such a resolution to call back the troops can only be 
dispensed with – in the sense that approval is automatically rendered 
ineffective – if the circumstances to which the approval relates have 
obviously ceased to exist. This standard of evidence is constitutionally 
required because otherwise, the Basic Law would place the Federal 
Government in a dilemma: It would have to obtain new Bundestag approvals 
as purely precautionary measures with every contentious change of the 
factual or legal circumstances, so as to avoid exposing itself to the 
reproach of a violation of the constitution by omission. 

Even after Kosovo’s declaration of independence, the Bundeswehr 
deployment was allowed to be continued on the basis of the parliamentary 
approval granted previously. What is decisive for the dispensability of 
a new decision by the German Bundestag is that the unilateral breaking 
away from Serbia has not evidently dispensed with the mandate of 
deployment under international law on which the Bundestag had made 
contingent its previous approval. On the contrary, the UN mandate has 
neither been eliminated to date, nor has it been replaced by a new 
resolution. It remains in force for an unlimited period of time. If the 
required standard of evidence is applied, the Senate does not have to 
review whether the UN mandate continues to exist only formally but not 
substantively, as has been argued by the applicant. The objective of 
Organstreit proceedings is to protect the rights of the state bodies in 
their relations with one another; not a general supervision under the 
constitution or even under international law. Moreover, the German 
Bundestag has not formulated any essential preconditions for approval 
apart from the continued applicability of the UN mandate. The Bundestag 
could have easily expressed a possible will to approve the Bundeswehr 
deployment in Kosovo only on the proviso of certain external 
circumstances. It has, however, not done so. 


This press release is also available in the original german version.