Federal Constitutional Court - Press office -
Press release no. 14/2012 of 28 February 2012
Judgment of 28 January 2012 – 2 BvE 8/11 –
Application in Organstreit proceedings regarding the Bundestag’s right of
participation/EFSF successful for the most part
In its judgment pronounced today, the Federal Constitutional Court has
considered for the most part well-founded the application made by two
Members of the Bundestag against the new legislation, adopted in
connection with the extension of the instruments of the European
Financial Stability Facility (EFSF), concerning the transfer of
competences of the German Bundestag to a special committee.
Facts of the case
As a reaction to the sovereign debt crisis in the area of the
European Monetary Union, its Member States created the “euro rescue
package”. In connection with the rescue package, they founded a
special purpose vehicle under private law, the European Financial
Stability Facility (EFSF). The special purpose vehicle is provided
with guarantees by the Member States enabling it to borrow money on
the capital markets which it makes available to overeindebted
Member States. In the Gesetz zur Übernahme von Gewährleistungen im
Rahmen eines europäischen Stabilisierungsmechanismus,
Stabilisierungsmechanismusgesetz – StabMechG (Act on the Assumption
of Guarantees in Connection with a European Stabilisation Mechanism,
Euro Stabilisation Mechanism Act) of 22 May 2010, the federal
legislature defined the preconditions for rendering financial
assistance at national level (for further details, see press
release no. 55/2011 of 7 September 2011, which is available in
English on the Federal Constitutional Court’s website).
In May/July 2011, the Member States agreed to make the EFSF’s
maximum loan capacity of 440 billion euros fully available and to
provide the EFSF with further, more flexible instruments to
overcome the sovereign debt crisis. In Germany, the European
agreements were transposed by the Gesetz zur Änderung des
Stabilisierungsmechanismusgesetzes (Act Amending the Euro
Stabilisation Mechanism Act), which entered into force on 14
October 2011. The Act provides guarantee facilities on the part of
the Federal Republic of Germany that have now been raised to
approximately 211 billion euros; it defines the instruments of the
EFSF and determines the prerequisites of their use. Furthermore,
the Act redefines the Bundestag’s responsibilities. According to
the Act, decisions of the German representative in the EFSF in
principle require the consent of the Bundestag. In cases of
particular urgency and confidentiality, however, the Bundestag’s
competence shall, according to § 3.3 StabMechG, be exercised by a
newly created committee (the so-called Sondergremium). Its members
shall be elected from among the members of the Budget Committee (41
at present). According to the new legislation, emergency measures
aimed at preventing risks of contagion shall as a general rule be
deemed particularly urgent or confidential. In all other cases, the
Federal Government can assert that a situation of urgency or
confidentiality exists. The Sondergremium has the right to object
to this assertion by a majority decision in order to achieve a
decision of the entire Bundestag to decide. Apart from that,
according to § 5.7 StabMechG the rights of the Bundestag to be
informed can be transferred to the committee in cases of particular
confidentiality.
The applicants consider it an infringement of their status as
Members of Parliament under Article 38.1 sentence 2 of the Basic
Law (Grundgesetz – GG) that the Bundestag’s overall budgetary
responsibility is delegated to the Sondergremium.
In its session held on 26 October 2011, the German Bundestag
elected the members of the Sondergremium. Upon the applicants’
application of 27 October 2011, the Federal Constitutional Court,
by its order of 27 October 2011, issued a temporary injunction
according to which the German Bundestag’s competences were not
allowed to be exercised by the Sondergremium until a ruling in the
main proceedings would be issued (see Order of 27 October 2011 –
2 BvE 8/11 and press release no. 68/2011 of 28 October 2011, which is
available in English on the Federal Constitutional Court’s website).
The Second Senate of the Federal Constitutional Court ruled that the
provision of § 3.3 StabMechG, according to which in cases of particular
urgency and confidentiality, the German Bundestag’s competences to
decide on the (extended) measures of the EFSF shall be exercised by a
committee elected from among the members of the Budget Committee,
violates the applicants’ rights as Members of Parliament under Article
38.1 sentence 1 GG.
The provision under § 3.3 StabMechG, however, is in conformity with the
Basic Law as far as it grants the Sondergremium competences to decide in
the event of the purchase of government bonds by the EFSF on what is
known as the secondary market.
The provision of § 5.7 StabMechG, which provides that in cases of
particular confidentiality, the Bundestag’s rights to be informed shall
be restricted to the members of the Sondergremium, does not violate the
applicants’ rights as Members of Parliament if interpreted in conformity
with the constitution. According to an interpretation in conformity with
the constitution, the Federal Government must inform the German
Bundestag without delay as soon as the reasons for a particular
confidentiality that justify the Sondergremium to be entrusted with the
matter have ceased to exist.
In essence, the decision is based on the following considerations:
I. Standard of review
In principle, the German Bundestag complies with its function as a body
of representation in its entirety and through the participation of all
its Members, not through individual Members, a group of Members or the
parliamentary majority. The German Bundestag’s right to decide on the
budget and its overall budgetary responsibility are, in principle,
exercised through deliberation and decision-making in the plenary
sitting. These principles also apply in an intergovernmental system of
governing with regard to guarantee authorisations for international and
European liabilities.
The basis of the rights of the Members of Parliament, and for their
restriction, is the principle of all Members of Parliament participating
in the decisions of the German Bundestag. The principle of
representative democracy, which is anchored in Article 38.1 sentence 2
GG, guarantees every Member of Parliament equal status as a
representative of the entire people. To be justified, differentiations
regarding the status of a Member of Parliament therefore require a
special reason which is legitimised by the constitution and which is of
a weight that can outbalance the equality of Members of Parliament.
To the extent that the transfer of competences to decide to a
decision-making committee intends to exclude Members of Parliament from
participating in the overall budgetary responsibility, this is only
admissible to protect other legal interests of constitutional rank, and
if the principle of proportionality is strictly observed. To avoid a
disproportionate impairment of the rights of Members of Parliament that
arise from their status, the principle of Spiegelbildlichkeit (i.e. the
committee must mirror Parliament as a whole) must be adhered to as well.
From this it follows that every committee must be a scaled-down image
of the plenary assembly and that its composition must reflect the
distribution of the political forces in the plenary assembly.
Furthermore, for the Members of Parliament who are not represented in
the committee, the possibilities of informing themselves and of being
informed may not be restricted beyond the extent of what is absolutely
necessary.
II. Subsumtion
Reviewed against these standards, the application is for the most part
well-founded.
1. § 3.3 StabMechG violates the applicants’ rights under Article 38.1
sentence 2 GG to the extent that not only the issue of the purchase of
government bonds by the EFSF on the secondary market is to be entrusted
to the Sondergremium. The provision completely excludes the Members of
Parliament who are not represented in the Sondergremium from substantial
decisions affecting the German Bundestag’s overall budgetary
responsibility. It thus effects unequal treatment with regard to the
rights that arise from the status as a Member of Parliament in the
context of parliamentary activity.
a) The establishment of a subsidiary body to exercise duties of the
Bundestag autonomously and as a substitute of the plenary sitting is
covered by Parliament’s right to organise its own affairs; the Bundestag
has a broad scope of discretion in this respect. In principle, the
exclusion of the Members of Parliament who are not represented in such a
subsidiary body can be justified by reasons orientated towards
Parliament’s ability to function. The principle of the Bundestag’s
ability to function enjoys constitutional rank and can therefore
fundamentally justify that in cases of particular urgency or
confidentiality, the Bundestag makes provision for speedy action and
against planned measures becoming known, if otherwise, internal
decision-making in Parliament in a way that is appropriate to the matter
is not ensured.
b) However, where the rights of the Members of Parliament arising from
their status are restricted, the principle of proportionality must be
observed and an appropriate balance must be guaranteed between the
rights of the Members of Parliament arising from their status on the one
hand and the German Bundestag’s ability to function that collides with
such rights on the other hand. The establishment of the Sondergremium
provided in § 3.3 StabMechG does not satisfy these requirements under
the perspective of particular urgency or under that of confidentiality.
Reasons of particular urgency cannot justify the extensive delegation of
competences of the Bundestag to the Sondergremium with regard to any of
the emergency measures indicated in the EFSF’s list of measures. For no
reasons became apparent in the legislative procedure or in the
proceedings before the Federal Constitutional Court which would require
having a subsidiary body with the “smallest possible number of members”
that would be able to meet as quickly as possible. The lower
administrative effort involved with having to convene only nine members
of the panel is not sufficient. Moreover, no deputies are provided for
the members of the Sondergremium, so that a few members being unable to
attend might result in the committee lacking a quorum. Apart from that,
all measures taken by the EFSF require extensive preparative actions and
implementing measures by the applying state and the EFSF.
Reasons of particular confidentiality justify the transfer of
decision-making competences to the Sondergremium only with regard to
some of the emergency measures indicated in the EFSF’s list of measures.
The transfer is constitutionally unobjectionable to the extent that the
purchase of government bonds by the EFSF on the secondary market must be
deliberated and decided. As even the planning of such an emergency
measure becoming known would be likely to prevent the measure’s success,
it must be assumed that the preparation of such an emergency measure,
i.e. also its deliberation and a decision adopting the measure, must be
subject to absolute confidentiality.
In contrast, the provision contained in § 3.3 StabMechG, according to
which emergency measures aimed at preventing risks of contagion shall
“as a general rule” be deemed particularly urgent or confidential, is
not compatible with the rights resulting from the status as a Member of
Parliament. The assumption of a general rule fails to consider that the
possibility of delegation is restricted to strictly limited exceptions,
and it therefore does not do justice to the requirements placed on a
considerate balance between the interest in the security of classified
information which serves the Bundestag’s ability to function, and the
rights arising from the status as a Member of Parliament that conflict
with such interest. The restriction of the rights of the Members of
Parliament arising from their status is additionally exacerbated by the
fact that the plenary assembly has no effective possibility of
examining in advance whether the assumption of a general rule is valid,
and of taking charge again of the matter to be decided.
c) Though § 3.3 StabMechG does not explicitly provide the “mirror-image”
composition of the Sondergremium, it can be interpreted in conformity
with the constitution. Therefore § 3.3 StabMechG must be interpreted in
such a manner that also the Sondergremium is a scaled-down image of the
plenary assembly and reflects the strength of the groups represented in
Parliament as faithfully as possible. It is true that when electing the
members of the Sondergremium on 26 October 2011, the German Bundestag
infringed these requirements. This, however, does not result in the
challenged provision itself being unconstitutional.
2. The provision in § 5.7 StabMechG, which provides for the possibility
of transferring the Bundestag’s rights to be informed to the
Sondergremium in cases of particular confidentiality, does not violate
the rights of the Members of Parliament arising from their status under
Article 38.1 sentence 2 GG. However, the rights of the Members of
Parliament to be informed may take a back seat – also with regard to the
point in time of the information –only to the extent that is absolutely
necessary in the interest of Parliament’s ability to function. Therefore
the provision is to be interpreted in such a way that Parliament’s
rights to be informed are suspended only as long as the reasons for
particular confidentiality exist; once these reasons have ceased to
exist, the Federal Government must of its own accord inform the German
Bundestag without delay about the involvement of the Sondergremium and
the reasons justifying such involvement.
This press release is also available in the original german version.
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