Judgment of 23 July 2026
2 BvE 4/23
Act to Amend the Buildings Energy Act – Main proceedings
In a judgment pronounced today, the Second Senate of the Federal Constitutional Court rejected an application from a member of the 20th German Bundestag challenging the design of the legislative proceedings in 2023 on the Act to Amend the Buildings Energy Act (Gebäudeenergiegesetzänderungsgesetz).
The applicant asserts that his rights as a member of the German Bundestag were violated by the manner in which the legislative proceedings relating to this act took place, both as a whole as well as certain individual procedural steps. He claims that no draft law from which what was actually being proposed could be discerned was made available until the final deliberations of the Committee on Climate Action and Energy on 5 July 2023. In addition, he contends that his rights were violated because the deliberations of the Plenary took place in September 2023 without further deliberations in committee.
In preliminary injunction proceedings, the Federal Constitutional Court ordered the German Bundestag on 5 July 2023 to refrain from proceeding with the second and third reading in the then-current week of the legislative session (cf. Press Release No. 63/2023).
In the main proceedings, the Senate has now rejected the application in Organstreit proceedings as inadmissible, as the applicant has failed to sufficiently demonstrate how his parliamentary rights were violated by the manner in which the legislative proceedings took place. A violation of Art. 38(1) second sentence can occur as a result of the particular design of legislative proceedings if they do not allow for any deliberations with arguments and counterarguments and render the participation rights of members meaningless, such as when there is no common basis for discussion. However, the applicant does not demonstrate that this was the case.
The decision of the Senate was unanimous.
Facts of the case:
On 17 May 2023, the Federal Government submitted a draft law to amend the Buildings Energy Act (Gebäudeenergiegesetz) to the Bundestag. On 13 June 2023, the parliamentary groups of the SPD, Bündnis 90/Die Grünen and the FDP (the parliamentary groups of the governing coalition) transmitted a document with the title ‘Guidelines [...] for the further debate on the Buildings Energy Act’ to the Committee on Climate Action and Energy. This included a list of ‘discussion points’ on the intended amendments to the draft law that were to be raised in further proceedings.
This was followed by fierce debate in the Bundestag not only on the content of the law, but also on how the legislative proceedings were to take place.
The Plenary of the German Bundestag debated the draft law in a first reading on 15 June 2023 and then referred it to the Committee on Climate Action and Energy. On 21 June 2023, the committee conducted a public expert hearing on the original version of the draft law, during which the ‘guidelines’ were also considered. On 27 June 2023, the committee set 3 July 2023 as the date for a second public expert hearing. By majority vote, this was subject to the precondition that the text for all applications for amendments would be circulated by Friday, 30 June 2023.
On 30 June 2023, the Federal Ministry for Economic Affairs and Climate Action provided the Committee on Climate Action and Energy with a draft to aid the parliamentary groups of the governing coalition in preparing an application for amendments (Formulierungshilfe, hereinafter: drafting assistance). This was transmitted to the experts participating in the legislative process and all other members of the Bundestag. The second public expert hearing of the Committee on Climate Action and Energy took place on Monday, 3 July 2023. On the afternoon of 4 July 2023, the parliamentary groups of the governing coalition submitted to the committee applications for amendments which were based on the aforementioned drafting assistance. The committee deliberated again on the morning of 5 July 2023 and submitted a recommendation endorsing the amendments proposed in the applications by the parliamentary groups of the governing coalition to the Plenary of the Bundestag.
On 5 July 2023, following the applicant’s submission of an application in Organstreit proceedings and an application for preliminary injunction on 27 June 2023, the Second Senate of the Federal Constitutional Court ordered the German Bundestag to refrain from proceeding with the second and third reading in the then-current week of the legislative session.
As a result, the second reading took place on 8 September 2023, after the parliamentary summer break. Further deliberations in committee, which both the applicant and other representatives of the parliamentary group of the CDU/CSU viewed as necessary, did not take place. However, the applicant did not file an application to send the legislation back to the committee, nor did he submit an application to amend the draft law. In the third reading, which took place directly after the end of the second reading, the Bundestag voted to adopt the draft law of the Federal Government with the amendments endorsed by the Committee for Climate Action and Energy on 5 July 2023.
Key considerations of the Senate:
The applications in Organstreit proceedings are inadmissible. The applicant has not substantiated his standing to file an application. He has not sufficiently demonstrated how his rights to participation in the formation of parliamentary will under Art. 38(1) second sentence of the Basic Law could have been violated by the manner in which the legislative proceedings on the Act to Amend the Buildings Energy Act took place.
I. Members of the German Bundestag not only have the right to participate in legislative proceedings by voting, they also have the right to deliberate. They must be able to form an opinion on the subject matter of deliberations and be able to influence the content of the final decision. For this, they require the necessary information regarding the subject matter of deliberations that will allow them to make an assessment. Members of the parliamentary minority must also have the opportunity to express their views in the process of the formation of parliamentary will. In particular, they must be able to express such views in a parliamentary debate. However, Art. 38(1) second sentence does not endow Bundestag members with a subjective right to a public hearing.
The Basic Law leaves internal parliamentary procedure to be governed autonomously by the German Bundestag. In order to facilitate adaptations to the changing nature of the workplace, the Bundestag can, for example, react to changes to the culture of deliberations in a digitalised world and develop new strategies of divisions of labour and coordination of the formation of the political will.
The Federal Constitutional Court reviews whether the exercise of procedural autonomy observes constitutional limits. The manner in which the German Bundestag designs its proceedings is subject to review to ensure that the legislative proceedings have not completely failed their purpose of enabling the formation of parliamentary will. Otherwise, there would be no protection against the participation rights of the members of the Bundestag being robbed of substance and rendered meaningless in practice.
The Basic Law assumes that in the Bundestag, questions as to governance, and in particular legislation, will be addressed by its members through argument and counterargument. In reality, the formation of parliamentary will is not a single act, but rather a complex process. Consequently, an essential part of parliamentary work traditionally takes place outside of the Plenary, in particular through committees and parliamentary groups. The parliamentary system of governance also provides for a link between the parliamentary majority in the Bundestag and the Federal Government, which also influences the process of the formation of parliamentary will. However, the decisions that result from this process – such as with regard to draft legislation – must be attributable to Parliament as the result of the overall will of its members. Only in this way can parliamentary deliberations fulfil their function of democratic legitimation.
This does not result in specific quality standards for the content of the actual parliamentary debate. Rather, the substantive discussion of a proposal in parliamentary proceedings must not be rendered impossible, such as when legislative proceedings are delayed or accelerated in an abusive manner or when a common basis for discussion on a decision is not available.
The opinion building process and exertion of influence also have a temporal dimension. In parliamentary practice, the timing of deliberations on legislation result from, first and foremost, the actions of the parliamentary groups. The Basic Law does not contain specific prescriptions for a reasonable length of deliberations on a law. The Bundestag autonomously determines whether timeframes which can only be changed by consensus or for objective reasons, and which therefore require consensus among all parliamentary groups, strengthen or weaken the ability of the Bundestag to properly function.
Parliamentary deliberations also fail to fulfil their function of democratic legitimation when a substantive discussion is rendered impossible because a common basis for discussion on a decision is not available. Without this common basis, deliberations cannot fulfil their purpose of enabling public debate on proposed legislation. For proposed amendments that do not have a connection to the subject matter of the proposed legislation, there is an opportunity for public debate so long as they are addressed as part of the debate in the Plenary.
II. The applicant does not demonstrate how his rights under Art. 38(1) second sentence of the Basic Law could have been violated by the manner in which the legislative proceedings took place.
In the preliminary injunction proceedings, the applicant only needed to show that a violation of his individual rights as a Bundestag member was possible at the time the application was submitted, such as due to not having the opportunity to learn of the subject matter to be deliberated. In the main proceedings, however, it is necessary to sufficiently substantiate that the respondent violated constitutional requirements in the overall design of the legislative proceedings and thereby violated the Bundestag members’ rights of participation.
The submissions in the application do not satisfy these requirements.
1. The applicant does not show how the Bundestag, as respondent, could have violated his rights under Art. 38(1) second sentence of the Basic Law through the actual design of the individual steps of the legislative proceedings.
a) The applicant has not tenably shown how he, due to information being withheld, incurred a disadvantage relative to other members – and in particular members of the parliamentary groups of the governing coalition – which would violate the right of equal participation. There is no reliable evidence to support the applicant’s assertions.
The documents relevant to the deliberations and decision making were transmitted through the usual distribution channels in the Bundestag immediately after they were completed. This was the case for the ‘guidelines’ of 13 June 2023 as well as the drafting assistance of 30 June 2023 and the applications for amendments submitted on 4 July 2023.
b) To the extent the applicant contends that the parliamentary groups of the governing coalition refused to communicate, a possible violation of his rights as a member of the Bundestag is also not ascertainable.
The rights of the parliamentary minority to participate in the formation of parliamentary will which are enforceable vis-à-vis the Bundestag do not extend to informal discussions. These are not attributable to Bundestag decisions made with regard to the design of its procedure.
Nor can members of the minority in the Bundestag claim a right to be part of the internal will-building process of the majority or to be included in their communication channels with the government. The information advantage that results from this is inherent to the concept provided for in the Basic Law of a government which is dependent on a parliamentary majority and cannot give rise to any rights of participation; at most, it may give rise to a right to information that is distinct from participation rights.
2. The applicant’s submissions also do not show that, on the whole, the legislative proceedings on the Act to Amend the Buildings Energy Act failed their purpose of enabling the formation of parliamentary will.
The applicant asserts that the legislative proceedings were, until the preliminary injunction was ordered by the Federal Constitutional Court, ‘infected’ with failures which, because the Bundestag allegedly put the draft law ‘on ice’ after the injunction, affected the deliberations and the vote on the draft law in September 2023. His assertions are aimed at showing that a suitable basis for discussion necessary for the formation of parliamentary will could have been lacking.
However, the actual legislative proceedings do not support the applicant’s assessment. In regard to the deliberations, there was a suitable basis for discussion both for the formation of the parliamentary will as well as for the exertion of influence.
a) Contrary to the applicant’s contentions, the draft law submitted by the Federal Government was not merely a ‘placeholder’. It did not prove to be an unsuitable basis for discussion, whether viewed on its own or in conjunction with the ‘guidelines’ or in light of the law that was ultimately enacted.
b) Contrary to the applicant’s assertion, the ‘guidelines’, which did require additional specification, did not constitute the sole basis for discussion. The applicant fails to take note of the draft law submitted by the Federal Government simply because of his incorrect assessment that it was a ‘placeholder’ and therefore irrelevant.
c) The drafting assistance provided by the Federal Ministry for Economic Affairs and Climate Action on 30 June 2023 also provided the information necessary for the successful formation of the parliamentary will in regard to the subject matter of deliberations and for a decision in the Plenary. It is true that a number of the experts involved in the expert hearings criticised the short time to prepare for the second public expert hearing. At the same time, all participants gave their views on the drafting assistance. The applicant’s critique that it was unclear to what extent the drafting assistance was ‘binding’ is not supported by the minutes of the committee deliberations. Nor can the applicant point to significant changes between the drafting assistance and the subsequent applications for amendments. Formal differences between the drafting assistance and the applications for amendments are not relevant to the possibility to form the parliamentary will.
d) A violation of participation rights through the lack of further deliberations in committee following the preliminary injunction order must therefore be rejected. The applicant assumes that the committee deliberations which took place before the preliminary injunction are irrelevant. This is not the case. While these deliberations occurred over a very short period of time, they were not unusually brief, lacking in substance, or concluded without a result.