Pressemitteilungen

Copyright © 2014 BVerfG


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.
Zum ANFANG des Dokuments