Order of 13 August 2025

R e a s o n s :

I.

1

The 21st German Bundestag was elected on 23 February 2025. Its constituent meeting was held on 25 March 2025. The complainant lodged an objection regarding the validity of the election on 23 April 2025. The Bundestag has not decided on the objection.

2

On 22 June 2025, the complainant lodged a constitutional complaint and applied for a preliminary injunction. He sought to require the Bundestag to form a committee for the scrutiny of elections without delay, and to decide on the objections lodged, or, subsidiarily, on the complainant’s objection.

3

By submission of 22 July 2025, received by the Court on 26 July 2025, the complainant stated that the Bundestag had ‘established’ the committee for the scrutiny of elections in the meantime. According to the complainant, the first part of his application has therefore been dealt with. In this regard, he now applies for a decision requiring the Bundestag to reimburse his necessary expenses. He claims that his further application remains unaffected. According to the statements of the committee for the scrutiny of elections, the committee had not even started to review the objections regarding the validity of the Bundestag election. The complainant asserts that this is incompatible with German constitutional law and European human rights.

II.

4

1. The constitutional complaint is not admitted for decision because it is not formally admissible.

5

a) It is true that the 21st German Bundestag did not elect members of the committee for the scrutiny of elections pursuant to § 3(2) of the Act on the Scrutiny of Elections (Wahlprüfungsgesetz) until 26 June 2025 (cf. Minutes of Plenary Proceedings of the German Bundestag, Plenarprotokoll – BTPlenProt 21/14, p. 1178<D> in conjunction with Bundestag document, Bundestagsdrucksache – BTDrucks 21/597). It is not readily apparent why the Bundestag did not take the necessary steps to initiate the scrutiny of the election promptly after its constituent meeting. The scrutiny of the legitimation of Parliament through the will of the electorate cannot be made contingent on the formation of majorities or coalition talks, nor can it hinge on the question of whether a government can be formed at all (cf. Land Constitutional Court of Saarland, Judgment of 31 January 2011 - Lv 13/10 -, juris, para. 93).

6

There is a public interest in the swift and binding determination of the proper composition of Parliament (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 85, 148 <158 f.>; 169, 114 <121 para. 23> – European elections 2019 <minimum voting age>). The Bundestag must decide on objections concerning the validity of elections within an appropriate time period (cf. BVerfGE 149, 374 <376 f. para. 7>; 149, 378 <380 f. para. 8>; Federal Constitutional Court, Order of the Second Senate of 22 August 2018 - 2 BvQ 53/18 inter alia -, para. 8; Order of the Second Senate of 12 May 2025 - 2 BvE 6/25 -, para 32 – BSW – Recount).

7

International law (cf. Art. 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms – ECHR – in conjunction with Art. 13 ECHR, Art. 2(3) in conjunction with Art. 25 of the International Covenant on Civil and Political Rights – ICCPR) also mandates effective legal protection in the context of electoral scrutiny (cf. ECtHR(GC), Mugemangango v. Belgium, 10 July 2020, 310/15, §§ 69, 130 f. with further references; ICCPR Human Rights Committee, General Comment No. 25, 27 August 1996, UN-Doc CCPR/C/21/Rev. 1/Add. 7, para. 20). The Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe has therefore recommended that the Federal Republic of Germany introduce specific statutory deadlines for adjudicating such objections (cf. Office for Democratic Institutions and Human Rights, Federal Republic of Germany, Early Elections to the Federal Parliament (Bundestag) 23 February 2025, ODIHR Election Assessment Mission Final Report, 23 June 2025, p. 29 f.).

8

b) This, however, does not render the constitutional complaint formally admissible.

9

Electoral complaints pursuant to Art. 41(2) of the Basic Law (Grundgesetz – GG) have precedence as the more specific legal remedy (cf. BVerfGE 149, 378 <381 f. para. 9>; Federal Constitutional Court, Order of the Second Senate of 22 August 2018 - 2 BvQ 53/18 inter alia -, para. 9). To the extent that a matter falls within the scope of jurisdiction for electoral scrutiny proceedings under Art. 41(2) of the Basic Law, recourse to a constitutional complaint is in principle ruled out (cf. BVerfGE 151, 152 <163 para. 30>; 159, 40 <66 para. 76>; Federal Constitutional Court, Order of the Second Senate of 10 December 2024 - 2 BvQ 73/24 -, paras. 8, 10 – 2025 Bundestag elections – preliminary legal protection).

10

This also applies insofar as a complainant challenges the Bundestag’s failure to decide on their objection within an appropriate time limit. A constitutional complaint asserting that the Bundestag has violated the guarantee of effective legal protection is likewise inadmissible (cf. BVerfGE 149, 378 <381 f. para. 9>; Federal Constitutional Court, Order of the Second Senate of 22 August 2018 - 2 BvQ 53/18 inter alia -, para. 9). It is true that in legal scholarship, constitutional complaints seeking a finding of unconstitutionality on the grounds of a failure to adjudicate are considered admissible ([…]). However, in the case of electoral scrutiny, such constitutional complaints can only indirectly grant the relief sought, if at all. For this reason, the Federal Constitutional Court does not rule out that in exceptional cases an electoral scrutiny complaint can be lodged even though the Bundestag has not rendered a decision on an objection regarding the validity of an election, provided that the Bundestag has not decided on the objection within an appropriate time limit and there is thus a risk that the electoral scrutiny proceedings cannot be conducted properly or in due time (cf. BVerfGE 149, 374 <377 para. 7>; 149, 378 <380 f. para. 8>; Federal Constitutional Court, Order of the Second Senate of 22 August 2018 - 2 BvQ 53/18 inter alia -, para. 8; Order of the Second Senate of 12 May 2025 - 2 BvE 6/25 -‍, para. 32).

11

2. The application for the reimbursement of necessary expenses is unsuccessful, because the prerequisites set out in § 34a(3) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) have not been met. Reimbursement is not required for reasons of equity, because the constitutional complaint was not formally admissible until 26 July 2025 for the aforementioned reasons, including insofar as the complainant challenged the – in his view – delayed formation of the committee for the scrutiny of elections(cf. Federal Constitutional Court, Order of the First Chamber of the First Senate of 1 October 2024 ‑ 1 BvR 770/24 -, para. 11; Order of the Third Chamber of the First Senate of 12 December 2024 - 1 BvR 2183/24 -, para. 13).

12

This decision cannot be appealed.