Federal Constitutional Court - Press office -

Press release no. 48/2012 of 4 July 2012

Order of 19 June 2012 – 2 BvC 2/10 –

Unsuccessful complaint challenging the Federal Constitutional Court 
justices being elected by the German Bundestag’s electoral committee 


The subject-matter of the proceedings is a complaint requesting the 
scrutiny of an election. In his complaint, the complainant originally 
challenged the five per cent barrier clause in force at the 2009 
election to the European Parliament and the validity of the election. In 
its judgment of 9 November 2011 (2 BvC 4/10 et al.; see Press Release 
no. 70/2011 of 9 November 2011), the Federal Constitutional Court held 
the barrier clause unconstitutional. Now, the complainant essentially 
seeks only the election being repeated in the Federal Republic of 
Germany, and in the alternative, a new allocation of the seats in the 
Federal Republic of Germany’s contingent of Members of the European 
Parliament. 

The complainant challenges the composition of the Federal Constitutional 
Court’s Senate, stating that the Federal Constitutional Court justices 
who are elected by the German Bundestag are elected by the electoral 
committee established for this purpose by the Bundestag. He puts forward 
that indirect election infringes Article 94.1 sentence 2 of the Basic 
Law (Grundgesetz – GG), according to which half of the justices shall be 
elected by the Bundestag. According to the complainant, the composition 
of the Federal Constitutional Court as a constitutional body requires 
increased democratic legitimation and must be reserved to the 
Bundestag’s plenary. 

The Second Senate of the Federal Constitutional Court held that it is 
properly composed and rejected the complaint as unfounded to the extent 
that it was not declared as having been disposed of with a view to the 
decision of 9 November 2011. 

1. It is constitutionally unobjectionable that according to § 6 of the 
Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – 
BVerfGG), the German Bundestag elects the Federal Constitutional Court 
justices to be elected by it indirectly, by an electoral committee 
consisting of twelve Members of Parliament whose members are obliged to 
maintain secrecy and which decides with a two-thirds majority. The 
provision of Article 94.1 sentence 2 GG, according to which half the 
members of the Federal Constitutional Court shall be elected by the 
Bundestag and half by the Bundesrat does not prescribe a specific mode 
of election but is intended to be elaborated by the legislature. The 
provision on the mode of election under § 6 BVerfGG is based on the 
interpretation that Article 94.1 sentence 2 GG is open to a legislative 
elaboration of the election procedure which lays down that the vote need 
not necessarily be cast by the plenary. This interpretation was 
confirmed by the constitution-amending legislature and was deemed 
constitutional by the Federal Constitutional Court at an early point in 
time already. 

Delegating the election of the justices to the committee according to § 
6 BVerfGG also does not infringe the German Bundestag’s representative 
function, which it exercises, in principle, in its entirety. The 
justification of the provision is the recognisable legislative objective 
of strengthening the Court’s reputation and the confidence in its 
independence, thus ensuring the Court’s ability to function. 

2. To the extent that the complainant maintains his complaint, it is 
unfounded. There is no reason for ordering, in derogation of the 
judgment of 9 November 2011, the election to be repeated or a new 
allocation of the seats. 


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