Order of 21 May 2025 - 2 BvE 3/20
Bundestag decision quorums III
In an order published today, the Second Senate of the Federal Constitutional Court dismissed as inadmissible several applications of the AfD parliamentary group in the German Bundestag in Organstreit proceedings (dispute between constitutional organs).
In a number of sessions of the 19th German Bundestag, the applicant had raised doubts as to whether the quorum required to take decisions had existed. In its applications, the applicant challenges, inter alia, that in two sessions the Vice-Presidents chairing the respective session did not count votes by conducting a so-called Hammelsprung-procedure [‘division of the assembly’ – procedure for counting votes in the German Bundestag, which seeks to settle disagreements on the outcome of a vote. Members of the Bundestag leave the plenary chamber and enter again through one of three doors marked ‘yes’, ‘no’ and ‘abstain’. At each door, the number of people entering is counted. The procedure is set out in § 51(2) of the Rules of Procedure of the German Bundestag (Geschäftsordnung des Deutschen Bundestages – GOBT)]. The applicant asserts a violation of its rights.
The Organstreit proceedings are unsuccessful; each of the individual applications does not meet certain, albeit different, admissibility requirements.
Facts of the case:
Provisions on the quorum required to take decisions in the German Bundestag are not found in the Basic Law (Grundgesetz – GG), but rather in the Rules of Procedure of the German Bundestag. These state that the necessary quorum exists if more than half of the Members of the Bundestag are present in the chamber. If, before a vote is taken, a parliamentary group or five per cent of the Members of the Bundestag in attendance express doubts as to the presence of the quorum, and its existence is not confirmed unanimously by the Presiding Committee [Sitzungsvorstand – a body of three persons], the exact number of votes cast must be counted. This is done by way of the Hammelsprung-procedure. Normally, votes are cast through a show of hands or by standing up; parliamentary groups often vote en bloc, so that the Presiding Committee can determine the outcome of the vote on the basis of the number of seats held by each parliamentary group. Furthermore, the Rules of Procedure of the German Bundestag provide that before voting begins, either a parliamentary group or five per cent of the Members of the Bundestag in attendance can request a vote by name.
At around 1:27 a.m. on 28 June 2019, as in a number of previous sessions, when the vote was called on a number of draft laws in the second reading, the applicant expressed doubts whether the 107th session of the 19th German Bundestag met the required quorum. The Vice-President of the German Bundestag chairing the session (the second respondent) replied that the Presiding Committee had discussed the matter and concluded that the required quorum was met. The votes on the draft laws were then taken without an exact count of the votes cast in both the second and the immediately following third reading. As determined on the basis of the number of seats held by each parliamentary group, the draft laws received the majority of the votes cast. In the remaining course of the session, another law was passed.
On 7 July 2019, the applicant filed an application for a preliminary injunction before the Federal Constitutional Court, in which they sought to prevent the Federal President from certifying and promulgating these laws until final clarification of the legal situation. In its order of 17 September 2019, the Second Senate of the Federal Constitutional Court denied the application for preliminary injunction (see Press Release No. 58/2019).
During the 124th session of the 19th German Bundestag, at around 1:45 a.m. on 8 November 2019, the Vice-President of the German Bundestag chairing that session (the third respondent) called a vote on a draft law in the second reading. A Bundestag member belonging to the applicant, in the name of his parliamentary group, expressed doubts as to whether the necessary quorum was met. The third respondent replied: ‘But it looks quite good. – We as the Presidium are of the opinion that the necessary quorum exists’. Thereupon, another Bundestag member belonging to the applicant requested a vote by name. The third respondent replied that a vote by name would be conducted. He held the vote on the draft law in the second reading as a vote by show of hands and determined that the draft law was accepted. Then he called the third reading of the draft law and conducted the final vote thereon as a vote by name. The vote count showed 133 votes cast. The third respondent thereupon determined that the necessary quorum did not exist and closed the session.
On 7 May 2020, the applicant lodged Organstreit proceedings against the German Bundestag, two of its Vice-Presidents and the Presidium of the Bundestag [consisting of the President and the Vice-Presidents]. With its first two applications, the applicant claims that the conduct of the second and third respondent violated both its own constitutional rights as a parliamentary group and the participation rights of the German Bundestag in the legislative process. With its third application, the applicant seeks the declaration that its rights were violated because the members of the Presidium of the Bundestag (the fourth respondent) had allegedly reached a secret agreement that future ‘doubts as to the presence of a quorum’ expressed by the applicant would be met with a unanimous confirmation of its existence by the Presiding Committee, with the consequence that any future challenges regarding the quorum would come to nothing.
Key considerations of the Senate:
The applications are inadmissible.
1. The first application was not lodged within the statutory time limit.
With its first application, the applicant challenges the actions of the second respondent during the 107th session on 28 June 2019 and the decisions made by the Bundestag (the first respondent). As the applicant gained knowledge of the actions immediately, the six-month time limit for this application began on the same day, namely on 28 June 2019. However, the application to this effect was only filed on 7 May 2020 and thus after the expiry of the statutory time limit. The date of promulgation of the laws that were passed, 25 November 2019, is irrelevant for the commencement of the statutory time limit. If only a single act as one of many parts of a particular legislative proceeding is challenged, as is the case here, the later promulgation of the law has no effect on the commencement of the statutory time limit.
2. The second application does not meet the substantiation requirements.
An application in Organstreit proceedings is only admissible if the applicant plausibly asserts that they or the organ of which they are part have been violated or directly threatened in their rights or obligations under the Basic Law as a result of an act or omission on the part of the respondent. The asserted violation of rights must be evident from the facts presented by the applicant. If parliamentary proceedings of the German Bundestag are concerned, the applicant must describe the relevant events in accordance with the minutes of the plenary proceedings in a manner that is complete and free of contradiction. They must also show how the respondent was responsible for the challenged act or omission. The applicant’s account of the acts and omissions of the third respondent does not indicate anything that could constitute a violation or direct threat to the applicant’s rights. The applicant merely submits that the third respondent, in response to the expression of doubts by a Bundestag member belonging to the applicant regarding the presence of the quorum, had continued the session without conducting the Hammelsprung-procedure. The applicant did not, however, describe in detail all relevant aspects of the proceedings that took place. Specifically, it did not mention the fact that the draft law was voted on without the exact number of votes cast being determined. This, however, would have been necessary. The only possible legally relevant act of the third respondent was the holding of the vote on the draft law without determining the exact number of votes cast. Conversely, the continuation of the session in itself is not legally relevant.
Furthermore, nothing in the applicant's account of the proceedings during the remainder of the relevant session indicates precisely which legally relevant acts or omissions they challenge.
In addition, the applicant’s substantiation does not show that the application was directed against the correct respondent. For Organstreit proceedings which concern decisions taken by the Presiding Committee during plenary sessions of the German Bundestag, the President of the German Bundestag is the correct respondent. As the deputy acts in their place as ‘acting President’, the President of the German Bundestag remains the correct respondent even if measures taken by a deputy are at issue.
3. The third application does not concern an admissible subject matter.
An act or omission cannot be the subject matter of Organstreit proceedings based solely on the fact that it hypothetically violates or directly threatens the rights of the applicant. Rather, it is also necessary that the act or omission objectively took place. Otherwise, a violation of rights is not possible.
The applicant does not present more than vague indications for its assumption that a secret agreement was made by the Presidium. However, mere conjecture does not suffice. The Federal Constitutional Court will only conduct further factual enquiry if the account presented by the applicant is sufficiently substantiated.
Furthermore, an agreement as alleged by the applicant would not be legally relevant. In particular, conversations to coordinate and prepare parliamentary activity do not constitute a decision of the Bundestag as an institution or a part thereof.