Order of 23 July 2026
2 BvC 20/26
Duration of electoral scrutiny proceedings
In an order published today, the Second Senate of the Federal Constitutional Court dismissed a complaint in electoral scrutiny proceedings (electoral complaint, Wahlprüfungsbeschwerde). It also pointed out the German Bundestag’s obligation to conduct electoral scrutiny in a manner capable of achieving its purpose in both timing and substance.
In his complaint to the Federal Constitutional Court, the applicant only raises objections regarding the 5% electoral threshold. The Bundestag has not yet decided on the applicant’s underlying electoral scrutiny application. However, in decisions on other electoral scrutiny applications, the Bundestag, referring to the Judgment of the Federal Constitutional Court of 30 July 2024 (cf. Press Release No. 64/2024), has pointed out that the application of the 5% threshold in the 2025 Bundestag elections was not objectionable. Therefore, it is not necessary for the Federal Constitutional Court to decide in the present proceedings in order to ensure that the electoral complaint proceedings are conducted in a timely and proper manner with regard to the application of the 5% threshold.
In its order, the Senate points out that electoral scrutiny must be conducted so as not to fall short of its purpose to guarantee the democratic legitimation of the Bundestag. It is true that the number of electoral scrutiny applications has increased significantly, in particular during the last two electoral cycles. Nevertheless, the Bundestag has to address the ensuing challenges and is responsible for fulfilling its obligations under Art. 41(1) first sentence of the Basic Law (Grundgesetz – GG) in a timely and proper manner.
In August 2025, the Second Chamber of the Second Senate already pointed out that it was not readily apparent why the 21st German Bundestag did not take the necessary steps to initiate the scrutiny of the election promptly after its constituent meeting (cf. Press Release No. 74/2025, only in German). The Senate also cannot find any compelling reasons for the delay.
There is also no evidence that the German Bundestag has made sufficient efforts to catch up on delays in processing electoral scrutiny applications. This holds true particularly in comparison with the 20th German Bundestag, which had decided on approximately 2,000 applications within 14 months of the Bundestag elections. With this in mind, it is not readily apparent why, 15 months after the Bundestag elections, the 21st German Bundestag has only decided on 450 of the approximately 1,000 applications submitted, especially as around half of these applications were essentially identical and dealt with jointly in one single brief proposal for decision.