Abstract of the judgment of 16 February 1983

Second Senate
Judgment of 16 February 1983
2 BvE 1/83

Headnotes (non-official):

1. In Organstreit proceedings (dispute between constitutional organs) any member of the Bundestag has standing to assert – in their own name – the violation of any right that is constitutionally linked to the status of member of Parliament. The status of members of Parliament is a central element of the guarantee in Article 39.1 of the Basic Law, which determines the duration of the legislative term. 

2. An order dissolving the Bundestag, or the refusal to do so, pursuant to Article 68 of the Basic Law is a key political decision that falls within the due discretion of the Federal President. However, the President may exercise this discretion in accordance with the first sentence of Article 68.1 of the Basic Law only if the relevant constitutional requirements are satisfied at the time of decision. 

3. The constituent elements of Article 68 of the Basic law set out a staggered process. The unconstitutionality of an act that occurred during an earlier stage of the process continues to affect the material basis for the decision-making required on the part of the Federal President upon receiving the Federal Chancellor’s motion for dissolution.  

4.1 The first sentence of Article 68.1 of the Basic Law is worded openly; it can, and must, be further specified [by way of interpretation]. 

4.2 The competence to specify federal constitutional law is not an exclusive responsibility of the Federal Constitutional Court, but also incumbent upon other highest constitutional organs. The values, fundamental decisions, principles, and standards enshrined in the Constitution must be respected in this regard.

4.3 When giving specific shape to the Constitution, as the fundamental legal order, it is necessary to secure a high level of agreement regarding the appraisal and assessment of the relevant circumstances in terms of both constitutional law and constitutional policy, and it is imperative to ensure a consistent and durable practice. A practice established by parliamentary or government majorities that is politically contested and legally disputed does not satisfy these requirements. 

5. In the German constitutional tradition, the term ‘confidence’ within the meaning of Article 68 refers to the endorsement by members of Parliament in the present moment – as formally manifested in the act of voting – of the Federal Chancellor in terms of both person and policy. 

6. When pursuing a dissolution of the Bundestag by means of invoking Article 68 of the Basic Law, the Chancellor should set this process in motion only in the event that the continued exercise of government functions appears no longer politically feasible in light of the prevailing power relations within the Bundestag. This requires that the political power relations within the Bundestag adversely affect the Chancellor’s capacity to act, or result in a deadlock, in the sense that the Chancellor can no longer reasonably pursue a policy that continues to enjoy the confidence of the parliamentary majority. 

7. It would be contrary to the spirit of Article 68 of the Basic Law if this provision were construed so as to allow a Federal Chancellor who clearly commands a sufficient majority in Parliament to call for a motion of confidence with the intent of being defeated in such motion for the very purpose of triggering a dissolution of Parliament at an opportune moment. Seeking such dissolution can also not be justified on the grounds of specific challenges faced in relation to the tasks arising during the legislative term.

8.1 Before submitting a motion for a vote of confidence with the aim of triggering the dissolution of the Bundestag, the Federal Chancellor has a duty to assess whether it can no longer reasonably be expected that a steady majority will endorse their political agenda. 

8.2 The review incumbent upon the Federal President whether the Federal Chancellor’s motion for a vote of confidence followed by the proposal to dissolve the Bundestag pursuant to Article 68 of the Basic Law are compatible with the Constitution is not subject to a different constitutional standard; in this respect, the Federal President must defer to the Federal Chancellor’s margin of appreciation and assessment, unless a different assessment of the political situation to the effect that no dissolution would be required is clearly evident and should thus prevail over the Federal Chancellor’s assessment. 

8.3 Unanimity among all parties represented in Parliament concerning the triggering of new elections does not provide a sufficient basis for limiting the discretion accorded to the Federal President; however, the President may construe such unanimity as an additional indication that the dissolution of Parliament would result in an outcome that would be more appropriate to the purpose of Article 68 of the Basic Law than a decision rejecting the dissolution of Parliament. 

9. Article 68 of the Basic Law affords a margin of appreciation and assessment in key political decisions to three highest constitutional organs; this limits the scope for constitutional review compared to law-making or the implementation of laws: in this regard, the Basic Law relies primarily on the system of political checks and balances between the highest constitutional organs as established under Article 68 of Basic Law. The Federal Constitutional Court may find a violation of constitutional law when reviewing political conduct only where the Basic Law actually sets out constitutional standards for such review. 

Summary:

I.

In October 1982, the Bundestag replaced then Federal Chancellor Willy Brandt of the Sozialdemokratische Partei Deutschlands (SPD) with Helmut Kohl of the Christlich-Demokratische Union (CDU) in a so-called ‘constructive no confidence’ vote under Article 67 of the Basic Law. A shift in allegiance of the Freie Demokratische Partei (FPD), which broke away from the SPD’s government coalition in favour of joining a new CDU-led coalition, paved the way for such motion. Shortly after taking office, Chancellor Kohl called for a vote of confidence under Article 68 of the Basic Law which he deliberately lost with most members of the ruling coalition abstaining; this move was intended to bring about the dissolution of Parliament and subsequent new elections in line with an agreement between the coalition partners. The Federal President decided to dissolve the Bundestag in accordance with Chancellor Kohl’s proposal under Article 68 of the Basic Law. Four members of the Bundestag challenged this decision in Organstreit proceedings, claiming an unjustified interference with their constitutionally protected four-year term in office pursuant to Article 38(1) and 39(1) of the Basic Law.

II.

The Federal Constitutional Court held that the challenged presidential decree does not violate the Basic Law.

The decision is based on the following considerations:

The Court emphasised that against the backdrop of historical experiences, the system of government established under the Basic Law was designed to ensure a high degree of government stability. Consequently, the Basic Law does not recognise a general or unconditional right to dissolve the Bundestag but limits the dissolution of Parliament to the specific cases set out in the third sentence of Article 63.4 of the Basic Law and in Article 68 of the Basic Law. The Federal Chancellor, the Bundestag and the Federal President, as the constitutional organs involved in a confidence motion that can result in dissolution under Article 68 of the Basic Law, must each independently assess the relevant procedural and substantive constitutional requirements. In particular, Article 68 of the Basic Law requires a situation of political instability in the relations between the Federal Chancellor and the Bundestag. In this regard, it is an unwritten constituent element that the Federal Chancellor can no longer be certain of continuous and reliable support in Parliament.

The Court held that these constitutional standards were satisfied regarding the President’s order dissolving the Bundestag. The Federal Chancellor’s assessment of the current political situation in light of the shifting parliamentary allegiances and the future prospects for the Federal Government does not raise constitutional objections.

Justice Zeidler and Justices Rinck and Rottmann issued dissenting opinions.