Federal Constitutional Court - Press office -

Press release no. 60/2011 of 16 September 2011

Order of 19 August 2011 – 2 BvG 1/10 –


Application of the Schleswig-Holstein Land parliament in the dispute between
the Federation and the Länder against the “brake on debt” inadmissible


The Federal Constitutional Court may inter alia be applied to under 
Article 93.1 no. 3 of the Basic Law (Grundgesetz – GG) if there are 
differences of opinion between the Federation and the Länder (states) on 
their mutual constitutional rights and duties (dispute between the 
Federation and the Länder). Under the wording of § 68 of the Federal 
Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) 
only the Federal Government may be the applicant on behalf of the 
Federation in such proceedings, and for a Land, only the Land 
government. 

The Schleswig-Holstein Land parliament and the President of the Land 
parliament have made an application in a dispute between the Federation 
and the Länder on behalf of the Land Schleswig-Holstein. The application 
challenges the inclusion in the Basic Law (amended version of Article 
109.3 sentences 1 and 5 GG) of what is known as the “brake on debt”. 
This essentially comprises the fundamental prohibition of the Federation 
and the Länder balancing their budgets by borrowing, and is to be 
complied with by the Länder from the year 2020. The Schleswig-Holstein 
Land parliament and its President see this as violating the 
constitutional autonomy of the Land. 

They are also of the opinion that they are entitled to file proceedings 
on behalf of the Land. They submit that a restriction of the entitlement 
to file to the Land government alone, under the wording of § 68 BVerfGG, 
is not convincing. They submit that the genesis both of Article 93.1 no. 
3 GG and also of § 68 BVerfGG shows that the circumstances of a dispute 
between the parliaments of the Federation and of the Länder relating to 
their legislative competence – as in the present case – has been 
overlooked. They are of the view that this gap must be closed by 
development of case-law by constitutional courts, holding that in such a 
“conflict of the legislatures” the Land parliaments are authorised to 
represent the Land irrespective of the whether their governments wish to 
pursue the matter judicially. At least, they submit, the requirement of 
effective legal protection requires the Land parliament to be granted a 
power of representation by way of representative action. 

The Second Senate of the Federal Constitutional Court dismissed the 
application because, in the absence of entitlement to file on the part 
of the Land parliament and its President, it is inadmissible. 

In essence, the decision is based on the following considerations: 

1. There are no constitutional objections to the restriction by § 68 of 
the Federal Constitutional Court Act of the entitlement to file in a 
dispute between the Federation and the Länder to the governments 
involved. 

The restriction of the entitlement to file is supported by objective 
considerations. It serves to avoid a dispute between supreme federal 
bodies on different levels and contradictory steps in proceedings. Nor 
does this provision result in discernible shortcomings in disputes 
relating to legislative competence. If the Land parliaments are 
unsuccessful in enjoining the Land government, by virtue of their 
function in building a government and their supervisory function, to 
conduct a dispute between the Federation and the Länder, they have the 
possibility of initiating Organstreit proceedings before the Land 
constitutional court to obtain an order obliging the Land government to 
make an application. A federal statute may also be challenged in 
proceedings of the abstract review of a statute. 

Nor can the applicants invoke a violation of the guarantee of effective 
legal protection (Article 19.4 GG), because this, as “the main 
procedural fundamental right” serves to enforce the rights of natural 
and legal persons under private law and as a matter of principle does 
not apply to territorial entities and their bodies. Nor does § 68 
BVerfGG violate the principle of the rule of law and the principle of a 
federal structure. 

2. Nor can the provision be interpreted in such a way as to extend its 
meaning. The legislature did not overlook the fact that a dispute 
between the Federation and the Länder may have as its subject not only 
executive disputes, but also disputes on the scope of legislative 
competence. 

Insofar as the (constitution-amending) legislature subsequently 
introduced independent entitlements to file for the Land parliaments, 
for example in Article 93.1 no. 2a and 93.2 GG, these are narrowly 
defined exceptions from the rule. 

3. A recognition of a right for the Land parliament to initiate 
representative actions is out of the question. It is the nature of such 
actions that a party pursues rights of another in its own name. It is 
therefore impossible for the Land government to conduct a representative 
action in a dispute between the Federation and the Länder because this 
does not concern a violation of competences of the Land government; a 
representative action on behalf of the Land does not apply, because it 
would amount to a circumvention of § 68 BVerfGG. 


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