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Application in Organstreit proceedings relating to Bundeswehr deployment in Heiligendamm rejected

Press Release No. 35/2010 of 01 June 2010

Order of 04 May 2010
2 BvE 5/07

From 6 to 8 June 2007, the 33rd meeting of the World Economic Summit of the Group of Eight (G8) took place under German Presidency in Heiligendamm in the Land (state) Mecklenburg-Western Pomerania under the motto "Growth and Responsibility". In the security authorities' assessment, both demonstrations involving violence and attacks from the sphere of Islamist terrorism were likely to occur. In the period leading up to the summit, the Land Mecklenburg-Western Pomerania and the Federation came to the joint assessment that the task of ensuring security on the occasion of the summit would be too much for Mecklenburg-Western Pomerania without assistance from the Federation and other Länder (states).

By letter of May 2006, the Federal Minister of Defence had initially, in principle, promised the Minister of the Interior of the Land Mecklenburg-Western Pomerania technical and logistical support. Subsequently, he approved a large number of specifically requested measures of support. The security authorities expected, on the basis of police predictions, that opponents of the G8 summit would try to erect blockades on the roads leading to Heiligendamm and Rostock-Laage Airport, create earth depots for tools and blockade equipment and tamper with streets by, for example, underwashing or undermining. Such ground alterations were to be detected from the air with the aid of the reconnaissance technology on board Tornado aircraft. From 3 May to 5 June 2007, a total of seven missions were flown using Tornado aircraft. During them, optical images were recorded, which, according to the respondent (the Federal Government), are not suitable for identifying persons. On one flight, the aircraft flew for a short time below the minimum flight altitude of 500 feet over the inhabited demonstrators' camp at Reddelich. On none of the flights were the Tornados' cannons loaded with ammunition.

In addition, nine self-contained Fennek reconnaissance systems were brought into operation, each consisting of an armoured reconnaissance vehicle for ground reconnaissance. These were used for the surveillance of premises and streets and of the flight approach routes of summit participants and had the task of observing and reporting findings to the police.

To ensure airspace security, moreover, three AWACS aircraft, as part of the NATO formation, were used, which provided an air situation picture. Moreover, before and during the G8 summit, the air force (Luftwaffe) kept four Eurofighter aircraft and eight Phantom aircraft ready, which performed approximately 23 flying hours.

Furthermore, in order to ensure emergency medical provision during the summit, the Bundeswehr maintained a mobile medical rescue centre in Bad Doberan. For that purpose, it was assigned the right to exercise proprietary powers for some parts of the Land and buildings belonging to Bad Doberan Hospital. Military police were deployed to safeguard the activity of the medical corps soldiers and to exercise proprietary powers.

The parliamentary group BÜNDNIS 90/DIE GRÜNEN in the German Bundestag (applicant) made an application in Organstreit proceedings (proceedings relating to a dispute between supreme constitutional bodies) for a declaration that the Federal Government (respondent) violated the rights of the German Bundestag under Article 87a.2 of the Basic Law (Grundgesetz - GG) by failing, prior to the deployment of the Bundeswehr on the occasion of the G8 summit, to bring the matter before the German Bundestag.

The Second Senate of the Federal Constitutional Court rejected the application as manifestly unfounded. It held that the mere consent of the German Bundestag would not have been able to eliminate a possible unconstitutionality of the employment of the Bundeswehr. Furthermore it is not apparent from the Federal Constitutional Court's existing case-law that a requirement of the German Bundestag's approving the Bundeswehr deployment at hand can be inferred from the Basic Law. The applicant also cannot successfully assert that from the point of view of the constitutional reservation in Article 87a.2 GG, the employment of the Bundeswehr lacked a constitutional basis because no right of the German Bundestag of its own results from this statute.

In essence, the decision is based on the following considerations:

In so far as the applicant seeks to derive the violation of a participatory right of the German Bundestag specifically from what it believes to be the unconstitutionality of the deployment of the Bundeswehr, it lacks capacity to make the application. That is because, in the case of unconstitutionality, a state of affairs in conformity with the Constitution could not have been established even by the prior consent of the German Bundestag in the form of an ordinary resolution.

Moreover, it is not apparent to what extent participatory rights of the German Bundestag in relation to specific deployments of the Bundeswehr within the country, whether they be armed or unarmed deployments, could exist even where the Basic Law itself does not provide for them.

In previous decisions, the Federal Constitutional Court has inferred from the provisions of the Basic Law which concern defence the principle of a mandatory requirement of parliamentary approval for the armed deployment of armed forces only in respect of deployments of the Bundeswehr abroad.

For the purposes of internal employment of the Bundeswehr during a state of defence or a state of tension (Article 87a.3 GG), that is to say, in so far as the armed forces are authorised or may be empowered to protect civilian property and to perform traffic control functions, the participation of the legislative bodies results from the prior determination of the state of defence or state of tension, to be made by the German Bundestag with the consent of the Bundesrat. By contrast, there is no provision for consent of the German Bundestag for the specific deployment.

Moreover, in the case of the employment of armed forces in protecting civilian property and in combating organised insurgents who are armed with military weapons, which is possible under Article 87a.4 GG, only a right of recall exists. This means that the deployment is to be discontinued if the German Bundestag or the Bundesrat so demands. No further-reaching participatory rights of the German Bundestag with a view to internal employment of the Bundeswehr are provided for in the Basic Law. Nor are they to be derived from the description of the Bundeswehr as a parliamentary army, which is used in the context of deployments abroad.

Also in so far as the applicant wishes to have it declared that, from the point of view of the constitutional reservation in Article 87a.2 GG, the employment of the Bundeswehr lacked a constitutional basis, the complaint of violation of a right of the German Bundestag cannot be upheld. Under Article 87a.2 GG, apart from defence, the armed forces may be employed only to the extent expressly permitted by the Basic Law. At least in the case of deployments of the Bundeswehr within the country, a constitutional amendment would therefore be necessary in the event of any overstepping of the limits within which the Basic Law permits them. However, a condition for reliance by the German Bundestag on a right conferred on it by the Basic Law in Organstreit proceedings is that that right must be conferred on it exclusively for its own exercise or for participation. According to the case-law of the Federal Constitutional Court, the status of the German Bundestag as a constitution-amending legislature does not give it such a right. Otherwise it would simply be permitted, by way of Organstreit proceedings, to exercise abstract review of the constitutionality of the opposing party's conduct.

Beyond the constitutional reservation, however, Article 87a.2 GG does not give the German Bundestag any rights of its own. Nothing is to be inferred, either from the wording of that provision or from its drafting history and objective, which point to a freedom-safeguarding function, as evidence that a competence-protecting effect in favour of the German Bundestag should be attributed to it.

Even if it were assumed - a point which could remain undecided in this case - that the measures taken had interfered with fundamental rights, the German Bundestag would not be able to invoke any such violations of rights of individuals by means of an Organstreit before the Federal Constitutional Court. That is also true in the event that the threshold for deployment of the armed forces, as referred to in Article 87a.2 GG, would have been overstepped. Even in those circumstances, the complaint of violations of fundamental rights in constitutional proceedings must remain reserved to the persons concerned.