Bundesverfassungsgericht

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Application of the Schleswig-Holstein Land parliament in the dispute between the Federation and the Länder against the “brake on debt” inadmissible

Press Release No. 60/2011 of 19 August 2011

Order of 19 August 2011
2 BvG 1/10

The Federal Constitutional Court may inter alia be applied to under Article 93.1 no. 3 of the Basic Law (Grundgesetz - GG) if there are differences of opinion between the Federation and the Länder (states) on their mutual constitutional rights and duties (dispute between the Federation and the Länder). Under the wording of § 68 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG) only the Federal Government may be the applicant on behalf of the Federation in such proceedings, and for a Land, only the Land government.

The Schleswig-Holstein Land parliament and the President of the Land parliament have made an application in a dispute between the Federation and the Länder on behalf of the Land Schleswig-Holstein. The application challenges the inclusion in the Basic Law (amended version of Article 109.3 sentences 1 and 5 GG) of what is known as the "brake on debt". This essentially comprises the fundamental prohibition of the Federation and the Länder balancing their budgets by borrowing, and is to be complied with by the Länder from the year 2020. The Schleswig-Holstein Land parliament and its President see this as violating the constitutional autonomy of the Land.

They are also of the opinion that they are entitled to file proceedings on behalf of the Land. They submit that a restriction of the entitlement to file to the Land government alone, under the wording of § 68 BVerfGG, is not convincing. They submit that the genesis both of Article 93.1 no. 3 GG and also of § 68 BVerfGG shows that the circumstances of a dispute between the parliaments of the Federation and of the Länder relating to their legislative competence - as in the present case - has been overlooked. They are of the view that this gap must be closed by development of case-law by constitutional courts, holding that in such a "conflict of the legislatures" the Land parliaments are authorised to represent the Land irrespective of the whether their governments wish to pursue the matter judicially. At least, they submit, the requirement of effective legal protection requires the Land parliament to be granted a power of representation by way of representative action.

The Second Senate of the Federal Constitutional Court dismissed the application because, in the absence of entitlement to file on the part of the Land parliament and its President, it is inadmissible.

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

1. There are no constitutional objections to the restriction by § 68 of the Federal Constitutional Court Act of the entitlement to file in a dispute between the Federation and the Länder to the governments involved.

The restriction of the entitlement to file is supported by objective considerations. It serves to avoid a dispute between supreme federal bodies on different levels and contradictory steps in proceedings. Nor does this provision result in discernible shortcomings in disputes relating to legislative competence. If the Land parliaments are unsuccessful in enjoining the Land government, by virtue of their function in building a government and their supervisory function, to conduct a dispute between the Federation and the Länder, they have the possibility of initiating Organstreit proceedings before the Land constitutional court to obtain an order obliging the Land government to make an application. A federal statute may also be challenged in proceedings of the abstract review of a statute.

Nor can the applicants invoke a violation of the guarantee of effective legal protection (Article 19.4 GG), because this, as "the main procedural fundamental right" serves to enforce the rights of natural and legal persons under private law and as a matter of principle does not apply to territorial entities and their bodies. Nor does § 68 BVerfGG violate the principle of the rule of law and the principle of a federal structure.

2. Nor can the provision be interpreted in such a way as to extend its meaning. The legislature did not overlook the fact that a dispute between the Federation and the Länder may have as its subject not only executive disputes, but also disputes on the scope of legislative competence.

Insofar as the (constitution-amending) legislature subsequently introduced independent entitlements to file for the Land parliaments, for example in Article 93.1 no. 2a and 93.2 GG, these are narrowly defined exceptions from the rule.

3. A recognition of a right for the Land parliament to initiate representative actions is out of the question. It is the nature of such actions that a party pursues rights of another in its own name. It is therefore impossible for the Land government to conduct a representative action in a dispute between the Federation and the Länder because this does not concern a violation of competences of the Land government; a representative action on behalf of the Land does not apply, because it would amount to a circumvention of § 68 BVerfGG.