Review of the objective constitutionality of an organ’s specific action not possible in Organstreit proceedings

Press Release No. 87/2018 of 18 December 2018

Order of 11 December 2018
2 BvE 1/18

In an order published today, the Second Senate of the Federal Constitutional Court unanimously dismissed as inadmissible (§ 24 first sentence of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG) three applications in Organstreit proceedings (dispute between constitutional organs) filed by the Alternative für Deutschland (AfD) parliamentary group in the Bundestag. The applications were directed against the decision not to refuse entry to persons in need of protection at the German border in particular in the year 2015. The applicant failed to sufficiently substantiate that the Federal Government’s decisions on this matter violated or directly threatened its rights. Rather, by means of its applications, the applicant seeks the upholding of generally applicable law and the obligation to perform a specific action – i.e. the refusal of entry to asylum seekers at the borders. Pursuant to the established case-law, neither is permissible in Organstreit proceedings.

Facts of the case:

In 2015, there was a sharp increase in the number of persons seeking protection in Germany; a large number of these persons reached Germany via what is known as the “Balkan route” coming from Austria. In consequence, border controls were temporarily reintroduced at the German borders, especially at the German-Austrian border. In this context, it was decided within the Federal Government (the respondent) that third country nationals seeking protection in Germany were not to be refused entry at the border. The AfD parliamentary group (the applicant) entered the German Bundestag for the first time in 2017. In its application brief of 12 April 2018, the applicant seeks: in application no. 1., essentially a declaration that the respondent, by allowing the entry of asylum seekers and the opening and conducting of asylum proceedings in particular cases, has violated the participation rights of the German Bundestag and thus also the principle of the separation of powers, as well as the primacy of law (Vorrang des Gesetzes) and the requirement of a statutory provision (Vorbehalt des Gesetzes); in application no. 2., a declaration to the effect that allowing the migration of foreign nationals from specific states is only permissible on the basis of a “migration management act” (Migrationsverantwortungsgesetz) which must be adopted by the parliamentary legislature; and in application no. 3., a declaration that, under certain conditions, asylum seekers are to be refused entry at the borders.

Key considerations of the Senate:

The applications are inadmissible.

1. Pursuant to § 64(1) BVerfGG, an application in Organstreit proceedings is admissible if the applicant asserts that an act or omission on the part of the respondent has violated, or directly threatens to violate, the rights and obligations granted by the Basic Law to the applicant or to the organ to which the applicant belongs. The Organstreit is a contradictory dispute between parties; it primarily serves to delineate the competences between constitutional organs or their parts in a constitutionally governed relationship. However, its purpose is not to review the objective constitutionality of an organ’s specific action. The core of Organstreit proceedings, in respect of an applicant’s position, is the enforcement of rights. Thus, in an Organstreit there is no possibility of challenging an act or omission only on grounds of objective unconstitutionality. The Basic Law does not provide for a general right to the enforcement of the law or the Constitution upon which an Organstreit application could be based.

2. The applications formulated by the applicant do not meet these requirements.

a) In application no. 1., the applicant seeks a declaration that, by allowing certain asylum seekers to enter the Federal Republic of Germany, the respondent violated the participation rights of the Bundestag insofar as these also constituted basic political decisions. According to the applicant, all significant issues in connection with migration should be regulated in a “migration management act”. In the reasons provided to further substantiate the application it is stated, however, that the applicant itself is “the least” willing to introduce such legislation serving to legalise the actions of the Federal Government. While the applicant does consider a “migration management act” necessary with regard to the principle of the separation of powers, it also states its unwillingness to participate in the introduction of a corresponding bill in the German Bundestag. Thus, the applicant does not seek to enforce its own (participation) rights or those granted to the German Bundestag, but rather to prevent certain actions by the Government. The applicant therefore does not intend to engage the German Bundestag in the creation of a statutory basis [for actions relating to migration] but rather seeks to have a specific action by the respondent reviewed by the Federal Constitutional Court. However, an isolated action by the respondent cannot be challenged in Organstreit proceedings; nor can compliance with (constitutional) law be enforced in this manner.

b) The two other applications do not meet the requirements of § 64 BVerfGG either. Application no. 2., as formulated in the application brief, seeks a declaration to the effect that allowing the migration of foreign nationals from specific states “would only be permissible on the basis of a parliamentary act that was lawfully enacted prior”. This application does not claim any specific violation of the law by the respondent; rather, it aims to achieve the upholding of generally applicable law as interpreted by the applicant, which is ultimately also the aim of application no. 1. This is not permissible in Organstreit proceedings.

c) Application no. 3. seeks a non-permissible legal consequence. In this application, the applicant seeks a declaration stating that asylum seekers are to be “refused entry at the borders” under certain circumstances. The object of this application is the declaration of an obligation which is an impermissible aim in Organstreit proceedings.