I. Summary

I.
The applicants are members of the German Bundestag. In addition, they work as lawyers, as an industrial engineer and entrepreneur of a medium-sized business, and as a self-employed commercial sales representative. The legal dispute relates to the question of whether the new provisions of the Members of the Bundestag Act (hereinafter: the Act), which entered into force on 18 October 2005, on the exercise of the mandate of a member of the Bundestag (§ 44a.1 of the Act) are compatible with the constitutional status of a Member of the Bundestag under Article 38.1 second sentence and Article 48.2 first sentence of the Basic Law. The provisions pertain to the so-called centre-of-attention arrangement, the notification and publication of activities carried out in addition to the mandate and the income earned thereby (§§ 44a.4 first sentence and 44b of the Act in conjunction with §§ 1 and 3 of the Code of Conduct including the implementing provisions issued by the Speaker of the Bundestag on 30 December 2005 (no. 3 and no. 8)) and the sanctions that are provided in case of non-compliance (§§ 44a.4 sentences 2 to 5 and 44b no. 5 of the Act in conjunction with § 8 of the Code of Conduct).

II.
The Second Senate of the Federal Constitutional Court rejected the applications. In the Court’s opinion, the centre-of-attention arrangement (§ 44a.1 of the Act) states that the exercise of the mandate is the focus of the activities of a member of the Bundestag. Nonetheless, professional or other activities remain permissible in principle. In the view of four Senate members, this arrangement is unobjectionable under constitutional law. The duties connected with the freedom to exercise the mandate of a member of the Bundestag (Article 38.1 of the Basic Law) include the participation in parliamentary responsibilities in a way and to an extent that the discharge of these responsibilities is guaranteed. Parliamentary democracy requires that members of the parliament focus on their parliamentary duties; under favourable circumstances, they can try to pursue their profession in addition to their activity as a member of the Bundestag. If members of the Bundestag carry out their mandate in a manner that is commensurate with their duties, they will be burdened to a degree which usually renders it impossible to also make a living elsewhere. It is justified only for that reason that their full livelihood is financed from public funds.
The presumption that a member of the Bundestag who carries out freelance or entrepreneurial activities corresponds in a particular manner to the constitutional model of an independent member of the Bundestag has no tenable foundation. Article 48.3 first sentence of the Basic Law already presumes that the independence of members of the Bundestag is adequately ensured by the remuneration to which they are entitled. However, by appointing members of the Bundestag as representatives of the whole people and declaring them not bound by instructions in this capacity and only subject to their conscience, the constitutional provision of Article 38.1 second sentence of the Basic Law, also aims to achieve independence of members of the Bundestag from interest groups. In this respect, ensuring the independence of a member of the Bundestag is particularly significant; this is a matter of independence from influences which do not result from decisions made by the electorate. The liberal professions offer many different possibilities to use political influence profitably by means of a seat in the Bundestag for a professional activity carried out outside this context, and this is a particular danger for the independent exercise of the mandate.
In the view of the four other Senate members, the centre-of-attention arrangement is only compatible with the Basic Law if interpreted in conformity with the Constitution. In accordance with Article 38.1 second sentence of the Basic Law, a member of the Bundestag represents the people collectively with all the members of Parliament. The necessity of being rooted in society also includes the freedom to exercise professional activities during the time of the mandate. In fact, that is what gives members of the Bundestag the de facto freedom to exercise their mandate subject to only their conscience without having to give excessive consideration to the expectations of their party, other influential interest groups, or the media, in view of the chances of their re-election and the associated income they would have to secure. Pursuant to Article 48.2 first sentence of the Basic Law, no one may be prevented from accepting and exercising the mandate of a member of the Bundestag. This guarantee also aims to provide the opportunity to combine the office with a profession.
In the interest of a well-functioning parliament, a member of the Bundestag must deal responsibly with the freedom to exercise the mandate. However, it would be incompatible with this freedom to interpret the centre-of-attention arrangement in such a way that members of the Bundestag owed a certain number of working hours, and had to document them, with the consequence of sanctions potentially being imposed. If interpreted in conformity with the Constitution, the centre-of-attention arrangement is hence not to be understood as forming a basis for oversight of any “proper” exercise of the mandate or for a time-limit on additional occupations.
In the opinion of the four Senate members supporting the decisions, the applications are unfounded to the extent that the applicants challenge the obligations of reporting their activities and of publishing information related to activities they exercise in addition to their mandate, as well as the sanctions in case of violations.
The transparency provisions are intended to show the electorate any professional and other activities of members of the Bundestag outside their mandate, and the income earned from such activities. Such knowledge is important for the electoral decisions of voters, and also ensures the ability of the German Bundestag to represent the whole people, independent of the hidden influence of paying interest groups. Voters have a right to know from whom – and to what extent – their representatives receive money or benefits in kind. In principle, the interest of members of the Bundestag in the confidentiality of information on professional activities is of lower priority than the interest in information on interests that may interrelate.
It is not objectionable under constitutional law that the legislature established an across-the-board obligation to report activities and income outside of the mandate without requiring an actual conflict in an individual case. The abstract danger of a detriment to the independence of the mandate is sufficient.
The publication of the activities which are subject to reporting and of the income according to specific income grades also does not violate the applicants’ rights. Voters are entitled to form an opinion about the exercise of the mandate by a member of the Bundestag and thus the relevant information must be available to the voters. Therefore, the publication, as required by the amended provisions, is justified.
The provisions on sanctions where these duties of reporting the activities are not fulfilled are also compatible with Article 38.1 second sentence of the Basic Law. Such duties must be provided for by law and also be enforceable where necessary. The ability of the Bundestag to function properly would be impaired, and the principle of the strict equal treatment of all members of the Bundestag would be violated, if it was not possible to enforce the obligations of disclosing certain information for lack of effective sanctions. In addition, the Bundestag might, in the eyes of the public, appear powerless to enforce its own rules, which would lead to a loss of confidence and standing.
In the view of the other four Senate members, the applications challenging the transparency regulations should be successful. They stated that it is incompatible with Article 38.1 second sentence of the Basic Law if income earned must be disclosed to the public to a considerable degree and without sufficient safeguards under the principle of the rule of law. In the opinion of these four Senate members, the obligation of members of the Bundestag to disclose activities carried out in addition to the exercise of their mandate, and to specify all income earned, interferes with the freedom to exercise their office. It may not be disregarded in this context that individuals may be pilloried by the media as a result of the disclosure of mere facts such as gross income in particular. Without more declarations and weightings, the mere information on flows of funds could lead to wrong conclusions in many respects.
The challenged provisions on the disclosure of activities in addition to the exercise of the mandate and the income made therefrom do not include any balancing, required under constitutional law, of the legislative interest in transparency and the freedom to exercise the mandate which is strengthened by fundamental-rights aspects.
Just as members of the Bundestag cannot defend themselves comprehensively against transparency requirements by invoking the protection of their personal legal sphere, the legislature is also not allowed to completely deny this interest in protection of members of the Bundestag by invoking transparency goals. It is justified to require the disclosure of information only in cases where the information can indicate the risk of connected interests and dependencies of members of the Bundestag.
Since the provisions on the obligation to report activities and income are not compatible with the Basic Law, no sanctions may be imposed where these obligations are violated.
The applications concerning the obligation to report activities and income and the publication of this information were unsuccessful since, in cases of a parity of votes (§ 15.4 third sentence of the Federal Constitutional Court Act), a violation of the Basic Law cannot be established.