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No obligation under the Basic Law to create specific rights for parliamentary opposition groups
Press Release No. 22/2016 of 03 May 2016
Judgment of 03 May 2016
2 BvE 4/14
The Basic Law (Grundgesetz – GG) does not expressly create specific rights for parliamentary opposition (groups). Nor can one derive from the Basic Law an obligation to create such rights. Thus was the decision by the Second Senate of the Federal Constitutional Court in a judgment pronounced today. The Basic Law does contain a general constitutional principle of an effective opposition (verfassungsrechtlicher Grundsatz effektiver Opposition), which has been further defined by the case-law of the Federal Constitutional Court. However, this principle does not encompass an obligation to create specific rights for parliamentary opposition groups. Notwithstanding the above, creating specific rights for parliamentary opposition groups is not compatible with the equality of members of Parliament, and affiliations of such members, under Art. 38 sec. 1 sentence 2 GG. It is impossible to lower the quorums necessary for exercising parliamentary minority rights provided for in the Basic Law due to the constitutional legislature’s deliberate decision to the contrary.
Facts of the Case:
The Organstreit proceedings [translator’s note: dispute between constitutional organs or parts thereof] concern different rights of parliamentary minorities and the opposition within the German Bundestag, which exist at different normative levels. The parliamentary group DIE LINKE in the German Bundestag (applicant) claims these rights, mainly limited to the 18th electoral term. For further details on the facts, please refer to press release no. 83/2015 of 12 November 2015 (excerpt available in English).
Key Considerations of the Senate:
1. The applications are admissible for the most part.
a) On the one hand, the applicant, through applications no. 1 and no. 2, challenges the German Bundestag’s (respondent) rejection of the draft bills concerned. On the other hand, it challenges the fact of not having been granted the rights contained in the rejected draft bills. If the Bundestag has dealt with a draft bill in substance, its rejection [by the German Bundestag] can be admissibly challenged by way of Organstreitproceedings because such rejection constitutes a qualified act of omission that is equivalent to passing a law, which is a [legally relevant] act [in the context of such proceedings].
Through application no. 3, the applicant challenges the decision to introduce § 126a of the Rules of Procedure of the German Bundestag (Geschäftsordnung des Deutschen Bundestages – GO‑BT), which [also] constitutes a legally relevant act. In addition, the applicant requests to be granted further rights; it thus asserts a qualified act of omission.
b) The applicant asserts rights of the German Bundestag by way of a derivative right of action (Prozessstandschaft). The fact that the German Bundestag also is the respondent does not hinder the applicant from doing so. It is the object and purpose of this derivative right of action to enable the parliamentary minority to assert rights of the Bundestag also against the will of the parliamentary majority that supports the Federal Government politically.
c) Application no. 2 is inadmissible to the extent that is relates to amendments of the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union (Gesetz über die Zusammenarbeit von Bundesregierung und Deutschem Bundestag in Angelegenheiten der Europäischen Union – EUZBBG), Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism (Gesetz zur Übernahme von Gewährleistungen im Rahmen eines europäischen Stabilisierungsmechanismus, Stabilisierungsmechanismusgesetz – StabMechG), and several parts of the Act for Financial Participation in the European Stability Mechanism (Gesetz zur finanziellen Beteiligung am Europäischen Stabilitätsmechanismus, ESM-Finanzierungsgesetz – ESMFinG).
2. To the extent that the applications are admissible, they are unfounded.
a) The respondent is under no obligation to realise its oversight function by creating the opposition rights requested by the applicant at constitutional level.
aa) The Basic Law contains a general constitutional principle of an effective opposition, which has been further defined by the case-law of the Federal Constitutional Court. The protection of the opposition under constitutional law is rooted in the principle of democracy. The respect vis-à-vis decisions by the parliamentary majority and the guarantee that the parliamentary minority has a realistic chance of becoming the majority follow from the principle of majority rule and the rights of the parliamentary minorities. The basic idea is an open competition between different political forces, which especially presupposes that the opposition is not obstructed in its work. Accordingly, forming and exercising an organised political opposition is constitutive of the free and democratic basic order.
In implementing principle of separation of powers enshrined in the rule of law, one has to take account of the working conditions of the parliamentary system as envisaged by the Basic Law and shaped by political practice. In the [German] parliamentary system, forming a stable majority is indispensable for electing a government that is able to function properly, and for continuously supporting it. Therefore, both the members of Parliament and the parliamentary groups that do not support the government act as the natural opponents of the government and the parliamentary majority supporting it. To enable the opposition to carry out its parliamentary oversight function, the minority rights provided under the Basic Law must be construed in a way rendering them effective: The principle of an effective opposition applies. In exercising its powers of oversight, the opposition must not be dependent on the good will of the parliamentary majority. This follows from the fact that the opposition is provided with such powers of oversight not only in its own interest but mainly in the interest of the democratic state applying the principle of separation of powers, thus to publicly control the government that is supported by the parliamentary majority, and the government’s agencies. Therefore, within the [German] parliamentary system, the principle of separation of powers guarantees that parliamentary oversight [of the executive branch] can be effectively exercised in particular also by the parliamentary opposition.
The pivotal role of the parliamentary opposition in the context of carrying out the parliamentary oversight function is reflected in the system of legal protection provided under constitutional law: Firstly, the parliamentary minority has a right to initiate abstract judicial review proceedings [at the Federal Constitutional Court] “from the floor of the Bundestag” (aus der Mitte des Bundestages) [translator’s note: This is an expression used in Art. 76 sec. 1 of the Basic Law, which refers to a certain quorum of Members of the Bundestag.]. [Translator’s note: In abstract judicial review proceedings pursuant to Art. 93 sec. 1 no. 2 GG, the Federal Constitutional Court, on application, reviews law that does not form the basis of a specific legal dispute.] Secondly, members of the opposition have the legal ability to file an application in Organstreit proceedings and can thus enforce their subjective legal status existing in the Parliament’s inner sphere. In addition, the ability to assert rights of the Bundestag by way of a derivative right of action enables the parliamentary minority as opponent of the parliamentary majority that supports the government to effectively carry out the Parliament’s oversight function.
The individual right to, both structurally and in individual situations, oppose policies pursued by the government, and by the parliamentary majority supporting it, is grounded on the freedom and equality of members of Parliament guaranteed under Art. 38 sec. 1 sentence 2 GG. As representatives of the whole people, they are not bound by orders and instructions, and only responsible to their conscience. This freedom is backed by the guarantee of indemnity and immunity under Art. 46 GG and by the right of members of Parliament under Art. 47 GG to refuse to give evidence (Zeugnisverweigerungsrecht) and is of special importance for the parliamentary opposition in particular.
bb) However, the Basic Law does not explicitly establish specific rights for parliamentary opposition (groups). Nor can one derive from the Basic Law an obligation to create such rights. Rather, within the system under the Basic Law, the rights of the parliamentary opposition are designed as rights of qualified parliamentary minorities. The minorities provided with such special rights are qualified in that they consist of a certain number of members of the Bundestag. There is no provision of the Basic Law providing special rights for parliamentary groups. Thus, the Basic Law has decided not to limit the exercise of parliamentary minority rights to oppositional actors – like parliamentary opposition groups – , but to provide such rights to members of Parliament who together reach a certain number, without regard to the group’s composition.
cc) Furthermore, Art. 38 sec. 1 sentence 2 GG precludes introducing specific rights for parliamentary opposition groups. Rights that are provided only to parliamentary opposition groups derogate from the principle of equality of members of Parliament and their affiliations, which cannot be justified. Each member of Parliament is called to participate in the work of the Bundestag, its debates and decision-making. This holds true in particular with regard to the parliamentary oversight function vis-à-vis the government. Hence, also those members of Parliament structurally supporting the government are provided the option of opposing government policies in individual cases. These standards also apply to parliamentary groups, as their legal status is also derived from Art. 38 sec. 1 sentence 2 GG.
Derogations from the principle of equality of members of Parliament and their affiliations can only be justified under constitutional law through special reasons. Such reasons have to be constitutionally legitimised themselves and have to be of a weight that is equal to that of the equality of members of Parliament.
In the case at hand, no convincing justifying reason for favouring oppositional members of the Parliament compared to members of Parliament who support the government, and their affiliations respectively, by providing specific opposition rights, has been put forward. Nor is such a reason evident. In particular, the fact that the members of Parliament that support the government structurally are in practice reticent to oversee the government does not justify excluding them from exercising certain parliamentary minority rights. As the Federal Constitutional Court has already emphasised several times, the parliamentary minority rights that require certain quorums can be exercised by any minority that is formed in a given situation – without regard to its composition, its formation, or the participating members’ of Parliament membership in a party or parliamentary group. Special functions of the parliamentary opposition, to which the applicant referred, cannot justify the unequal treatment sought by the applicant either. Introducing specific parliamentary opposition rights would signal to members of Parliament who support the government that they are of minor importance in carrying out the parliamentary function of oversight. As a result, the internal oversight of the government exercised by the members of Parliament who support the government, from the floor of the Parliament, would be further weakened.
dd) It is also impossible to lower the quorums envisaged under the Basic Law by way of an interpretation, which would be neutral with regard to the equality of all members of Parliament, that takes account of the possibility to actually exercise parliamentary minority rights in times in which the requisite quorums cannot be reached by the parliamentary opposition [translator’s note: on its own, as the number of members of Parliament in the opposition is below the relevant threshold]. An interpretation that lowers the quorums by way of a teleological reduction (teleologische Reduktion) is impossible due to the express wording of the provisions of the Basic Law; the use of analogies to obtain such a result is precluded for lack of a norm that could be used as a basis for analogies.
Nor has the Constitution “changed” (“Verfassungswandel”) with regard to the issue at hand. The possibility of grand coalitions and the ensuing possibility that parliamentary groups that do not support the government cannot reach certain quorums existed since the first electoral term; such situations have indeed occurred several times. Thus, factual conditions have remained unchanged.
The state of tension between the quorums required under the Basic Law to exercise parliamentary minority rights and the general constitutional principle of an effective opposition cannot be solved by having recourse to the controversial legal concept of “unconstitutional constitutional law” (verfassungswidriges Verfassungsrecht). The Basic Law can only be understood as structural unity (Einheit). Consequently, as a rule, it is impossible at the constitutional level to conceive of norms of higher or lower rank in the sense that they could be measured against each other. The special case of the eternity clause (Ewigkeitsklausel) (Art. 79 sec. 3 GG) is not relevant here. Insofar, already the requisite element of change of the Basic Law that could in some way have a negative impact on parliamentary opposition is missing.
Nor does a requirement to lower the quorums under the Basic Law for exercising parliamentary minority rights follow from the general constitutional principle of an effective opposition. Rather, the quorums incorporated within the text of the Constitution reflect how the original constitutional legislature (Verfassungsgeber) and the constitution-amending legislature intended to further define that principle. In particular, in the genesis of the provisions of the Basic Law relating to parliamentary minority rights requiring quorums, there are no indications for a regulatory gap. The original constitutional legislature took note of both the issues of protecting parliamentary minorities, one the one hand, and the danger of abuse of parliamentary minority rights, on the other hand, and balanced them against each other. It also was aware of the consequences that the provisions on quorums entailed and knowingly accepted them.
Furthermore, no different assessment is called for based on the assumption that the original constitutional legislature had not envisaged a possible development of the Bundestag towards a parliament of many political parties (Vielparteienparlament). From the 1949 constitutional legislature’s perspective, both based on experiences and expectations, Reichstag and Bundestag were characterised in particular by a great number of political parties in Parliament, a number that was never reached since. In addition, the constitution-amending legislature did not change its fundamental choice when the number of political parties in Parliament increased successively, neither after 1983 with the increase from four to five parties nor after 1990 with the increase to six parties. The fact that, in the context of introducing parliamentary minority rights relating to the subsidiarity action, in the isolated case concerning the legal ability to file an application to initiate abstract judicial review proceedings, the quorum was lowered from one third to one fourth [of the members of the Bundestag] does not reflect a different fundamental choice. [Translator’s note: The subsidiarity action is an action provided under Art. 23 sec. 1a GG, which implements the Protocol on the Application of the Principles of Subsidiarity and Proportionality. It enables the Bundestag and the Bundesrat to bring an action before the Court of Justice of the European Union to challenge a legislative act of the European Union, on the grounds that that act infringes the principle of subsidiarity. Further information on the subsidiarity action can be found in § 12, referred to as section 12, of the Responsibility for Integration Act; a translation is available at http://www.gesetze-im-internet.de/englisch_intvg/.]
b) Nor is the respondent under an obligation to exercise its oversight function by creating the opposition rights sought by the applicant at the level of statutory law.
The quorums specifically envisaged under the Basic Law [, thus at constitutional level,] exclude the possibility of a constitutional obligation to provide for more extensive opposition rights at statutory level. As for the remainder – which concerns the modifications sought of some provisions under the ESMFinG and under the Act on the Exercise by the Bundestag and by the Bundesrat of their Responsibility for Integration in Matters concerning the European Union (Responsibility for Integration Act – Integrationsverantwortungsgesetz) – the introduction of specific opposition rights by statutory law constitutes an interference with the equality of members of Parliament, and their affiliations, under Art. 38 sec. 1 sentence 2 GG that cannot be justified under constitutional law (cf. above).
c) Nor is the respondent under an obligation to introduce the parliamentary opposition rights sought by the applicant at the level of the Rules of Procedure of the German Bundestag.
To the extent that the relief sought via application no. 3 with regard to § 126a sec. 1 no. 1 to 8 GO‑BT is congruent with the relief sought via applications no. 1 and 2, application no. 3 is also unfounded. Besides, enlarging the group of those that have legal ability to exercise certain minority rights by including parliamentary opposition groups constitutes a specific right of parliamentary opposition in each case and therefore an unjustified interference with the equality of parliamentary groups under Art. 38 sec. 1 sentence 2 GG (cf. above).