There are two types of proceedings before the Federal Constitutional Court relating to Bundestag elections. Firstly, the Court adjudicates complaints by associations regarding their non-recognition as a political party for elections (Art.94(1) no. 4c of the Basic Law and §§ 96a ff.of the Federal Constitutional Court Act). Secondly, it decides complaints relating to the validity of elections or the acquisition or loss of the status of member of Parliament (Art. 41(2) of the Basic Law and § 48 of the Federal Constitutional Court Act). Both types of proceedings receive a ‘BvC’ file reference. Electoral complaints can also be filed regarding the election of the German members of the European Parliament.
By judgment of 19 December 2023, the Federal Constitutional Court, for the first time, declared a German Bundestag election partially invalid and ordered a repeat election in the affected polling districts of the Land Berlin. Identifying errors in the electoral process helps ensure that the legal requirements will be respected in future elections. One example of this is the decision of the Federal Constitutional Court that the use of electronic voting machines to record votes and electronically determine the result of an election infringes the principle of public elections.
Complaint against non-recognition as a political party
Parties that are represented in Parliament as well as associations that are not yet represented can submit nominations to the Federal Electoral Committee in order to stand for election to the Bundestag (cf. § 18 ff. of the Federal Elections Act). The Federal Electoral Committee examines whether the formal requirements are satisfied and whether an association can be recognised as a political party. The Committee does not examine the contents of the party manifesto; rather, what is decisive is whether the association seriously pursues its declared intent to participate in the formation of the political will of the people. This requirement is not satisfied, for instance, if the association does not have a manifesto or lacks consolidated organisational structures.
The decision of the Federal Electoral Committee can be appealed to the Federal Constitutional Court within a short time period. The Federal Constitutional Court must reach its decision no later than the 59th day before the election; until it has reached a decision, the association must be treated as a party entitled to submit a nomination (cf. § 18(4a) second sentence of the Federal Elections Act).
Proceedings concerning the scrutiny of elections
Proceedings concerning the scrutiny of elections pursuant to Art. 41 of the Basic Law are designed to ensure that the composition of the Bundestag is in conformity with constitutional and statutory law. Scrutiny of elections primarily falls to the Bundestag, which decides on the validity of Bundestag elections and whether rights were violated during an election or its preparation (Art. 41(1) first sentence of the Basic Law and § 1(1) of the Act on the Scrutiny of Elections). Complaints against such Bundestag decisions can be lodged with the Federal Constitutional Court (Art. 41(2) of the Basic Law and § 48(1) of the Federal Constitutional Court Act). The Bundestag must have issued its decision before such a complaint can be lodged. Bringing forward the scrutiny of elections, for example through preliminary injunction proceedings pursuant to § 32 of the Federal Constitutional Court Act, is not permissible.
The Federal Constitutional Court examines whether the electoral law was applied in conformity with higher-ranking law, in particular with the Basic Law. It also reviews, in the context of the challenges brought, whether the electoral law was applied correctly. The standards of review are primarily the electoral principles under Art. 38(1) first sentence of the Basic Law and the provisions of the Federal Elections Act as well as the Federal Electoral Regulations.
To protect the elected Parliament, the Federal Constitutional Court’s decision can only go as far as is required by the error identified in the electoral process. Only errors that have, or might have had, an impact on the allocation of seats in the Bundestag can lead to an election being declared invalid. If a violation of the law does not lead to an election being declared invalid, the Federal Constitutional Court nevertheless declares that a violation has taken place (cf. § 48(3) of the Federal Constitutional Court Act).