Order of 10 December 2024 - 2 BvQ 73/24
In an order published today, the Second Senate of the Federal Constitutional Court dismissed as inadmissible an application for preliminary injunction seeking a waiver of the obligation to submit supporting signatures for Land lists and constituency candidates for the upcoming Bundestag elections.
Facts of the case:
The proceedings concern the elections to the 21st German Bundestag, which are expected to be brought forward to 23 February 2025, rather than the initially planned date of 28 September 2025.
With his application for a preliminary injunction dated 15 November 2024, the applicant directly challenges the obligation of political parties not represented in Parliament and independent candidates to submit a certain number of supporting signatures for nominations pursuant to § 20(2) third sentence, § 20(3), § 27(1) second sentence in conjunction with § 18(2) of the Federal Elections Act (Bundeswahlgesetz – BWahlG), even in cases when the Bundestag is dissolved in accordance with Art. 68(1) first sentence of the Basic Law (Grundgesetz – GG) and the election is held within sixty days of its dissolution as laid down in Art. 39(1) fourth sentence of the Basic Law.
The applicant asserts that this requirement violates the principle of equal opportunities in political competition and the principle of equal elections under Art. 38(1) of the Basic Law.
Key considerations of the Senate:
The application for preliminary injunction is inadmissible.
The Federal Elections Act cannot presently be challenged by means of a constitutional complaint that could constitute the basis for principal proceedings in this matter, as the Act was most recently amended with effect from 14 June 2023 and the one-year time limit for lodging a constitutional complaint has thus expired. Any challenge to the legislator’s failure to provide for exemptions from signature quorums when elections are brought forward would also be untimely.
While it is to be expected that the Federal Ministry of the Interior and Community will issue an ordinance regarding the shortening of the time limits set out in the Federal Elections Act for the elections to the 21st German Bundestag on the basis of § 52(3) of the Federal Elections Act, this does not mean that the time limit for lodging a complaint against provisions of the Federal Elections Act will restart. The particular burden asserted by the applicant in case of early elections primarily arises from Art. 39(1) fourth sentence of the Basic Law and its rigid 60-day time limit.
Since the entry into force of the Basic Law, Art. 39(1) fourth sentence of the Basic Law has always provided for the possibility of early elections; this does not result in a new legislative environment for the Federal Elections Act. Nor does this possibility alter the real conditions of the election, which could require the legislator to act and amend the provisions of electoral law, thus restarting the time limit.
There is also no scope for a preliminary electoral complaint before the election is held, because as the law currently stands, there is no legal basis for such a remedy.
Finally, it is not apparent that there are particular circumstances of such significance for public policy that they could justify an exception from the strictly limited possibilities of obtaining legal protection prior to an election.