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Unsuccessful complaint challenging the Federal Constitutional Court Justices being elected by the German Bundestag’s electoral committee

Press Release No. 48/2012 of 04 July 2012

Order of 19 June 2012
2 BvC 2/10

The subject-matter of the proceedings is a complaint requesting the scrutiny of an election. In his complaint, the complainant originally challenged the five per cent barrier clause in force at the 2009 election to the European Parliament and the validity of the election. In its judgment of 9 November 2011 (2 BvC 4/10 et al.; see Press Release no. 70/2011 of 9 November 2011), the Federal Constitutional Court held the barrier clause unconstitutional. Now, the complainant essentially seeks only the election being repeated in the Federal Republic of Germany, and in the alternative, a new allocation of the seats in the Federal Republic of Germany's contingent of Members of the European Parliament.

The complainant challenges the composition of the Federal Constitutional Court's Senate, stating that the Federal Constitutional Court justices who are elected by the German Bundestag are elected by the electoral committee established for this purpose by the Bundestag. He puts forward that indirect election infringes Article 94.1 sentence 2 of the Basic Law (Grundgesetz - GG), according to which half of the justices shall be elected by the Bundestag. According to the complainant, the composition of the Federal Constitutional Court as a constitutional body requires increased democratic legitimation and must be reserved to the Bundestag's plenary.

The Second Senate of the Federal Constitutional Court held that it is properly composed and rejected the complaint as unfounded to the extent that it was not declared as having been disposed of with a view to the decision of 9 November 2011.

1. It is constitutionally unobjectionable that according to § 6 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG), the German Bundestag elects the Federal Constitutional Court justices to be elected by it indirectly, by an electoral committee consisting of twelve Members of Parliament whose members are obliged to maintain secrecy and which decides with a two-thirds majority. The provision of Article 94.1 sentence 2 GG, according to which half the members of the Federal Constitutional Court shall be elected by the Bundestag and half by the Bundesrat does not prescribe a specific mode of election but is intended to be elaborated by the legislature. The provision on the mode of election under § 6 BVerfGG is based on the interpretation that Article 94.1 sentence 2 GG is open to a legislative elaboration of the election procedure which lays down that the vote need not necessarily be cast by the plenary. This interpretation was confirmed by the constitution-amending legislature and was deemed constitutional by the Federal Constitutional Court at an early point in time already.

Delegating the election of the justices to the committee according to § 6 BVerfGG also does not infringe the German Bundestag's representative function, which it exercises, in principle, in its entirety. The justification of the provision is the recognisable legislative objective of strengthening the Court's reputation and the confidence in its independence, thus ensuring the Court's ability to function.

2. To the extent that the complainant maintains his complaint, it is unfounded. There is no reason for ordering, in derogation of the judgment of 9 November 2011, the election to be repeated or a new allocation of the seats.