Federal Constitutional Court - Press office -

Press release no. 85/2011 of 28 December 2011

Order of 22 November 2011 – 2 BvE 3/08 –

Application in Organstreit proceedings on railway-owned real estate
held inadmissible 
Parliament has no right of approval with regard to the sale of 
Deutsche Bahn AG assets


At the beginning of 1994, the Deutsche Bundesbahn (German Federal 
Railway) and the Deutsche Reichsbahn, the railway of the former GDR, 
were merged in the course of the railway reform to form a special fund 
of the Federation without a legal personality (the Federal Railways Fund 
– Bundeseisenbahnvermögen), and Deutsche Bahn AG, a corporation under 
private law, was founded. When the real property was divided between the 
Federal Railways Fund and Deutsche Bahn AG, not only what is known as 
real property necessary for railway operation (bahnnotwendige 
Liegenschaften) but also some real property not necessary for railway 
operation was transferred to Deutsche Bahn AG. In order to part with the 
real property that was not, or no longer, regarded as necessary for 
railway operation, Deutsche Bahn AG founded subsidiaries to which it 
sold the real estate in question, which mainly included administration 
buildings that were no longer needed. In 2007, Deutsche Bahn AG intended 
to sell the subsidiaries to a consortium in their entirety. The sales 
contract on this, which was officially recorded by a notary in September 
2007, was entered into under the condition precedent of approval by the 
Federal Government. The sale of the subsidiaries was deliberated 
afterwards in the German Bundestag’s Transport Committee, last on 10 
October 2007, before the Federal Government declared its consent in 
November 2007. 

On 23 May 2008, the DIE LINKE parliamentary group in the German 
Bundestag made an application in Organstreit proceedings [proceedings 
relating to a dispute between supreme federal bodies] seeking, in a 
general sense, a declaration that the Federal Government had violated 
the rights of the German Bundestag under Article 110 of the Basic Law 
(Grundgesetz – GG) by not obtaining parliamentary approval of its 
consent to the sales transaction. 

The Second Senate of the Federal Constitutional Court dismissed the 
application because it is inadmissible in several respects. For one 
thing, the German Bundestag’s participatory right alleged by the 
applicant does not come into consideration under any conceivable 
constitutional-law aspect. Furthermore, the application in the 
Organstreit proceedings was not made in due time. Apart from this, it 
lacks the required need for legal protection. 

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

1. A parliamentary right of approval neither arises from Article 110 GG 
nor under the aspect of a “flight from the budget” alleged by the 
applicant or on the basis of an unwritten requirement of parliamentary 
approval (Parlamentsvorbehalt).

Article 110.2 GG provides that the budget shall adopted by the Budget 
Act. According to Article 110.1 GG, all revenues and expenditures of the 
Federation, i.e. of the Federation as a territorial authority, shall be 
included in the budget. However, the provision does not cover revenues 
and expenditures of federal legal persons under public law or of 
corporations under private law which are owned by the Federation or in 
which the Federation holds participations. The sale of the Aurelis 
companies is hence not covered by the provision, for the owner of the 
companies sold was Deutsche Bahn AG, not the Federation, which did not 
receive any funds from the sale. 

Furthermore, Article 110.2 sentence 1 GG prescribes that the budget 
shall be adopted by a law, but it does not assign the Bundestag any 
right of approval of budgetary measures taken by the executive power. 
Should, due to any subsequent deviations from the budget, the 
participation of the Bundestag be required under the provisions of the 
Basic Law which concern the federal budget, the participation will take 
the shape of a Supplementary Budget Act. 

The Federal Government was also not obliged to obtain parliamentary 
approval under the perspective of a “flight from the budget”. Under 
constitutional law, the budgetary autonomy of Deutsche Bahn AG is 
legitimised by the insertion of Article 87e.3 sentence 1 GG. According 
to this provision, federal railways shall be operated as enterprises 
under private law. The intention of this provision was to secure the 
commercial orientation of the railways and to assign an area of 
entrepreneurial self-determination to them. It would be incompatible 
with this objective to impose parliamentary supervision on the 
individual business decisions of the enterprise. 

From Article 87e.4 GG, no precepts under constitutional law that 
establish a right of approval on the part of the Bundestag concerning 
the sale of assets of Deutsche Bahn AG can be inferred either. According 
to this provision, the Federation shall ensure that in developing and 
maintaining the federal railway system as well as in offering services 
over this system, due account is taken of the interests and especially 
the transportation needs of the public. To the extent that according to 
this provision, details shall be regulated by a federal law, the German 
Bundestag is to render its share in performing the duty arising from the 
provision by way of its legislative activity. If over and above that, 
the Bundestag were granted participatory rights in individual 
entrepreneurial decisions of Deutsche Bahn AG, this would considerably 
impair the latter’s ability to act according to a market-economy 
rationale, as is intended under constitutional law. Furthermore, the 
provision under Article 87e.4 GG is factually restricted to the area of 
railway infrastructure and railway traffic services. In contrast, the 
sale of the subsidiaries exclusively concerns real property not 
necessary for railway operation. 

2. Apart from that, the application of 23 May 2007 was filed after the 
expiration of the time-limit applying in Organstreit proceedings 
according to § 64.3 of the Federal Constitutional Court Act 
(Bundesverfassungsgerichtsgesetz – BVerfGG) because it was not made 
within six months of the contested measure becoming known. The fact that 
the sales contract had been entered into, as well as the circumstance 
that the Federal Government did not want to make its authorisation of 
the contract contingent on a parliamentary declaration of approval, was 
known to members of the Transport Committee in the last committee 
meeting on 10 October 2007 at the latest. The knowledge of a committee 
is attributable to the German Bundestag and thus to the parliamentary 
groups as well, so that the time-limit for filing an application ended 
at the end of 10 April 2008. 

3. Finally, the application is inadmissible because it lacks the 
required need for legal protection. Contrary to its duty, the applicant 
has omitted to invoke the participatory right allegedly due to the 
German Bundestag before instituting the Organstreit proceedings. 


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