The highest federal organs or equivalent bodies can lodge an application with the Federal Constitutional Court if they disagree on their rights and obligations arising from the Basic Law. This is necessary because the organs have no authority over each other. Organstreit proceedings allow for judicial scrutiny of the constitutional organs and thus protect the formation of the political will in accordance with the principle of the separation of powers.
Organstreit proceedings are governed by Art. 94(1) no. 1 of the Basic Law and §§ 63 ff. of the Federal Constitutional Court Act. They receive a ‘BvE’ file reference. While this type of proceedings is not among the most common proceedings before the Federal Constitutional Court, it often raises fundamental issues that are highly relevant to the political order.
Examples
Important Organstreit proceedings in the past dealt with questions such as the legal status of parliamentary groups and members of Parliament, the funding of political parties, the permissibility of electoral thresholds as well as the allocation of seats in Parliament, the constitutionality of dissolving the German Bundestag, the participation of the Bundestag in the further development of international treaties and the Bundestag’s right to information in matters concerning the European Union.
Prerequisites
Organstreit proceedings are adversarial proceedings between the applicant on the one hand and the respondent on the other. An application in Organstreit proceedings can be lodged by the highest federal organs listed in § 63 of the Federal Constitutional Court Act – the Federal President, the Bundestag, the Bundesrat and the Federal Government –, and also by the Federal Convention, the Federal Chancellor, the Federal Ministers and individual members of the Bundestag. Political parties also act as constitutional organs when they participate in the formation of the political will. They can therefore defend their rights arising from Art. 21 of the Basic Law in Organstreit proceedings.
Parliamentary groups in the German Bundestag have a special role, as they can not only assert their own parliamentary rights in Organstreit proceedings, but also the rights of the entire Bundestag – even against the will of the parliamentary majority. Thus, the opposition or a parliamentary minority can take a case to the Federal Constitutional Court to ensure respect for Parliament’s competences.
Other entities with legal ability to file an application in Organstreit proceedings can join proceedings and file applications if the Federal Constitutional Court’s decision in a given case is also relevant for the delimitation of their own competences.
Organstreit proceedings concern an act or an omission by the respondent. They often relate to issues arising from the law on political parties, electoral law or parliamentary law.
Applicants must claim that their own constitutional rights or obligations, or the rights or obligations of the constitutional organ to which they belong, have been violated or are at risk. Furthermore, they must actually have these rights vis-à-vis the respondent. In Organstreit proceedings, the Court does not review whether the respondent has violated other constitutional law, because such proceedings do not serve to ensure general adherence to the Constitution, but to protect the rights of the constitutional organs in respect to one another.
The application must be filed within six months of the applicant obtaining knowledge of the respondent’s conduct. There is no remedy for failure to comply with the time limit. In the interest of legal certainty, reinstatement into the former procedural position is excluded.
Decision
The Federal Constitutional Court rejects the application as unfounded if it does not find any violation of constitutional law. If, by contrast, an application is successful, the Federal Constitutional Court declares that the respondent’s act or omission violates a provision of the Basic Law. The Federal Constitutional Court does not reverse measures or declare them void, nor does it oblige the respondent to take specific action. However, the constitutional organs are required to observe the Federal Constitutional Court’s decision and to implement it where necessary (cf. Art. 20(3) of the Basic Law).