The Constitutional Jurisprudence of the Federal Republic of Germany: Third edition, Revised and Expanded 9780822395386

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The Constitutional Jurisprudence of the Federal Republic of Germany

∂

The Constitutional Jurisprudence of the Federal Republic of Germany thir d e dition, r e v ise d a n d e x pa n de d

Donald P. Kommers and Russell A. Miller With a New Foreword by Justice Ruth Bader Ginsburg

Duke University Press

Durham and London

2012

© 2012 Duke University Press All rights reserved. Printed in the United States of America on acid-free paper ∞ Designed by C. H. Westmoreland Typeset in Arno Pro by Westchester Publishing Ser vices Library of Congress Cataloging-in-Publication Data Kommers, Donald P. The constitutional jurisprudence of the Federal Republic of Germany / Donald P. Kommers and Russell A. Miller. — 3rd ed., rev. and expanded / foreword to the 3rd ed. by Justice Ruth Bader Ginsberg. p. cm. Includes bibliographical references and index. isbn 978- 0-8223-5248-8 (cloth : alk. paper) — isbn 978- 0-8223-5266-2 (pbk. : alk. paper) 1. Constitutional law— Germany—Cases. 2. Judicial review— Germany—Cases. I. Miller, Russell A., 1969– II. Ginsburg, Ruth Bader. III. Title. KK4446.7.K66 2012 342.43—dc23 2012011594

∂ For Nancy — donald p. kommers

For Theresa, who gave me Germany — russell a. miller

Contents ∂ foreword to the third edition: Justice Ruth Bader Ginsburg xi preface to the third edition xiii ac know ledg ments xvii note on translation and judicial opinions xxi abbreviations xxv

∂ Part I German Constitutionalism 1. The Federal Constitutional Court 3 Origin 4 Jurisdiction 10 Institution 17 Process 25 Judicial Review in Operation 33 Conclusion 40

2. The Basic Law and Its Interpretation 42 New Constitutionalism of the Basic Law 43 Nature of the Polity 48 Theories of the Constitution 55 Theory of Basic Rights 59 Interpretive Modes and Techniques 62 Sources of Interpretation 70 Conclusion 75

∂ Part II Constitutional Structures and Relationships 3. Federalism 79 Territorial Organization 80 Doctrine of Federal Comity 90 Apportionment and Distribution of Revenue 95 Local Self-Government 104 Bundesrat, Reform Gridlock, and Modern Federalism 110

viii CONTENTS Division of Legislative Power 120 Cooperative Federalism 138 Implementation of Federal Law 143 Conclusion 150

4. Separation of Powers 152 Executive-Legislative Relations 153 Judicial versus Legislative Authority 164 Delegation of Legislative Power 175 Foreign and Military Affairs 189 Conclusion 214

5. Political Representation and Democracy 216 Parliamentary Democracy 216 Elections and Voting 238 Party State and Political Spending 269 Militant Democracy 285 Conclusion 300

6. Jurisprudence of the Open State 302 Basic Law and International Law 302 Basic Law and European Law 325 Conclusion 352

∂ Part III Basic Rights and Liberties 7. Human Dignity, Personal Liberty, and Equality 355 Dignity of Persons 356 Right to Life 373 Right to Personality 399 Equality 419 Conclusion 439

8. Freedom of Speech, Press, and Art 441 A Jurisprudence of Balancing 442 Reputational Interests and Offensive Speech 460 Resocialization, Privacy, Truth-Telling, and Assembly 479 Freedom of the Press and Broadcasting 502 Artistic and Academic Freedom 519 Conclusion 536

CONTENTS ix

9. Religion, Conscience, and Family Rights 538 Free Exercise of Religion 539 Minority Religions 553 Religious Practices and Symbols in Public Schools 566 Taxation, Autonomy, and Religious Societies 590 Marriage and Family Rights 600 Conclusion 620

10. Economic Liberties and the Social State 622 Nature of the Economic System 623 Right to Property 630 Occupational and Associational Rights 659 Reunification and Economic Liberties 685 Conclusion 711

appendix a: chronological chart of the justices 713 appendix b: biographical sketches of presidents and vice presidents 717 notes 725 table of cases 833 index 847 permissions 871

Foreword to the Th ird Edition ruth bader ginsburg Associate Justice, Supreme Court of the United States

∂ Exposing laws to judicial review for constitutionality was once uncommon outside of the United States. But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred-up majorities. The Constitutional Court of the Federal Republic of Germany has been recognized as a paradigm in this regard.1 Just as U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measur ing ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights. “Wise parents do not hesitate to learn from their children,” U.S. Circuit Judge Guido Calabresi observed, noting as illustrative the fi rst edition of The Constitutional Jurisprudence of the Federal Republic of Germany.2 A concrete example. I coauthored the Brief for the Appellant in Reed v. Reed, 404 U.S. 71 (1971), the fi rst case in which the U.S. Supreme Court, in all its long history, ever declared a statute discriminating against women unconstitutional. Reed concerned an Idaho statute that directed: As between persons equally entitled to administer a decedent’s estate, “males must be preferred to females.” The Idaho Supreme Court had upheld the law against an equal protection challenge, reasoning that nature itself had established the gender-based distinction and that the preference for males conserved judicial resources. The Reed brief contrasted two decisions in which the then West German Constitutional Court invalidated similar gender classifications. The fi rst German decision, rendered in 1959, involved provisions of the German Civil Code declaring “if parents are unable to agree, father decides,” and mandating preference for the father as representative of the child.3 Holding both provisions incompatible with the constitution’s equality norm, the German court rejected alleged differences in lifestyles and administrative convenience as justifications for the discriminatory classifications. The second decision, announced in 1963, involved preferences for sons over daughters in agrarian inheritance law. In that instance, the German court held unconstitutional a classification resting on the assumption that men are better equipped than women to manage property. 1. See Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law, 1st ed. (New York: Foundation Press, 1999), 204. 2. United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring). 3. BVerfGE 10, 59 (1959).

xii For ewor d to the Thir d Edition

I did not expect our Supreme Court to mention the German decisions, but thought they might have a positive psychological effect. Informed of the West German Constitutional Court’s reasoning, the U.S. justices might consider: “How far behind can we be?” 4 I consulted foreign and comparative legal materials in my advocacy endeavors, as the Reed brief illustrates, and I continue to do so as a judge. Foreign opinions, of course, are not authoritative; they set no binding precedent for the U.S. judiciary. But they can add to the store of knowledge relevant to the solution of trying questions. No doubt, we should approach foreign legal materials with sensitivity to our differences and imperfect understanding of the social, historical, political, and institutional background from which foreign opinions emerge. But awareness of our limitations should not dissuade us from learning what we can from the experience and wisdom foreign sources may convey. In the endeavor to gain knowledge from the problems confronted and resolutions reached by our counterparts abroad, the work of Donald P. Kommers, now joined by Russell A. Miller, is a rich resource. Offering far more than excellent English-language translations of the decisions of a renowned tribunal, Professors Kommers and Miller supply incisive analyses and commentary. I am pleased to herald the publication of this third edition of a masterful text. In addition to thoroughgoing updating, the third edition contains considerable new material and substantially recast sections. Entirely new, Chapter 6 deals with the sometimes intricate relationship between German constitutional law, on the one hand, and international and European law, on the other hand. Chapter 10, on social and economic rights, includes important property and occupational rights cases arising out of Germany’s reunification. For the fi rst time, Germany’s equality jurisprudence, featured in Chapter 7, is treated independently. Of par ticu lar note, the authors discuss the Basic Law’s requirement that the state actively pursue the achievement of gender equality through positive measures. The emphasis on substantive equality reflects a trend vibrant abroad but not similarly embraced in the United States. Federalism reforms made between 2003 and 2009 are described in Chapter 3. Chapters 8 and 9 take up developments in recent years in Germany’s free speech and religious liberty jurisprudence. Finally, in sections of several chapters, the third edition explores the Federal Constitutional Court’s attempts to balance competing liberty and security interests in the post–9/11 world. Cases presented on this trying and vitally important topic contrast, sometimes strikingly, with current U.S. jurisprudence. Brought right up to the moment by Professors Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany is an engaging, enlightening, indispensable source for those seeking to learn from the text and context of German constitutional jurisprudence.

4. “A Conversation with Justice Ruth Bader Ginsburg,” University of Kansas Law Review 53 (2005): 957, 961.

Preface to the Th ird Edition ∂ The fi rst edition of this path-breaking book appeared in 1989, the year in which the Federal Republic of Germany celebrated the fortieth anniversary of its constitution, designated officially as the Basic Law (Grundgesetz). Adopted in 1949, the Basic Law marked the beginning of a new German experiment in constitutional democracy. A key feature of this experiment was the Basic Law’s provision for the creation of a constitutional court with vast powers of judicial review over legislative acts and other governmental activities. Two years later, on 12 March 1951, in compliance with this mandate, West Germany’s fi rst governing coalition enacted the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz; hereafter referred to as the fcca), authorizing the tribunal’s establishment and providing for the election of its original members. From the moment of its inception, the Federal Constitutional Court (Bundesverfassungsgericht) embraced a robust interpretation of the powers granted to it by the Basic Law. Few realized at the time that the Constitutional Court would play a vital role in shaping the politics and public philosophy of postwar Germany. Fewer still anticipated the Court’s evolution into one of the world’s most powerful and influential tribunals, serving as a model, alongside the U.S. Supreme Court, for other liberal democracies attracted by the prospect of placing fundamental law under the protection of independent courts of justice. The publication of this book’s fi rst edition coincided with comparative constitutional law’s emergence as a subject of serious scholarly inquiry. It was also a time when constitutional courts created in the post–World War II period were beginning to seriously engage one another’s jurisprudence as an aid to the interpretation of their respective constitutions. Already by 1980 Germany’s Federal Constitutional Court stood out as one of the most prominent of these postwar tribunals, not only for the fertility of the ideas folded into its constitutional decisions but also for the appeal of its jurisprudence beyond Germany’s borders. But at the time few of the Court’s decisions were accessible in English. The fi rst edition sought to fi ll this gap. One of its purposes was to bring the Constitutional Court’s leading decisions to the attention of English-speaking readers. The cases featured in translation were selected in part for their relevance to prominent areas of constitutional adjudication in the United States. The relevance seemed warranted by the similarities in the rights, values, and institutions protected by two of the world’s most advanced constitutional democracies. Yet, with their differing perspectives on liberty and democracy—born of distinct social, legal, and cultural histories—the German cases provided a challenging contrast to many of the views reflected in the decisions of the American Supreme Court. The fi rst edition exceeded all expectations. Not only was it hailed for the useful role that German constitutional thought could bring to any fresh assessment of

xiv Pr eface to the Thir d Edition

American constitutional doctrine; it also helped to generate interest in the developing field of comparative constitutional law. Owing to the book’s enthusiastic reception in the United States and abroad, a second edition was published in 1997. While adhering to the basic structure of the original volume, the second edition took into account major constitutional developments arising out of Germany’s reunification as well as the new and groundbreaking cases handed down in the 1990s on freedom of speech, religious freedom, voting rights, and the equality of women in the workplace. It also featured more recent decisions relating to the domestic application of international and European law and the deployment of German military forces abroad. Shortly after the publication of the second edition, the Federal Constitutional Court began publishing on its website English-language summaries and full translations of leading decisions in a wide variety of subject areas. By then, too, a large body of commentary on various aspects of German constitutional law was available in dozens of Anglo-American and other English-language journals and periodicals. For these reasons, it seemed initially that there would be no need for a third edition. Yet, despite the passage of time, Constitutional Jurisprudence continued to enjoy wide use in classes and seminars on German and comparative constitutional law, just as it continued to be consulted by constitutional scholars and judges alike in the United States and elsewhere. And so, encouraged by many friends and colleagues, and with the fi rst-time collaboration of Russell Miller as coauthor, work started on a new, updated edition. It was a long and arduous exercise. More than a decade of proliferating constitutional decisions and commentary had to be taken into consideration, much of it in the original German. Once again, the objective was the production of a single, user-friendly volume that would explain the main principles of the Basic Law, describe the range and character of constitutional review in Germany, and feature leading judgments of the Federal Constitutional Court in selected areas of its jurisprudence. The cases treated in the third edition have been carefully selected with the hope that they are worthy of reflective comparison with the analogous case law of other advanced constitutional democracies. That the third edition of Constitutional Jurisprudence should appear shortly after the sixtieth anniversary of the Federal Constitutional Court’s founding is a happy coincidence. Th is edition has been greatly expanded and reorganized to account for new developments in the jurisprudence of free speech, religious liberty, elections and voting, international affairs, and executive-legislative relations in the sensitive areas of foreign and military policy. Chapter 5 now includes an extended discussion of constitutional cases and issues arising out of Germany’s response to international terrorism since the 11 September 2001 terrorist attacks in the United States. Chapter 7 contains fresh material on gender discrimination and affi rmative action in a new section on equality. Similarly, recent cases on marriage and the family, including the rights of homosexual and transsexual persons, are taken up in Chapter 9, which considers religion and the rights of conscience. And, in the interest of greater coherence and clarity, several cases included originally in the chapter on dignity and personal liberty have been shifted to the chapter on freedom of speech. Finally, the chapter on

Pr eface to the Thir d Edition xv

economic rights now appears as the last instead of the fi rst chapter in Part III of this book to reflect the sequence of the provisions on fundamental rights in the Basic Law. Initially, in working on this edition, we planned two new chapters to focus respectively on the constitutional law relevant to Germany’s reunification and on the increasingly prominent interplay in the Constitutional Court’s jurisprudence between the Basic Law, European law, and international law. German unity generated numerous constitutional controversies related to electoral law, property rights, land reform, pension law, disbarment proceedings, and the occupational rights of persons dismissed from the civil ser vice and other categories of employment. Each of these controversies raised critical issues under several fundamental rights clauses of the Basic Law, prompting the Court to reexamine some of its earlier rulings under these provisions. To keep the book as a manageable single volume, however, we decided to omit this chapter and limit our discussion of the Court’s discrete reunification jurisprudence to a concluding section of Chapter 10. We think the constitutional themes and issues with which the Court grappled in relation to “economic liberties and the social state” are representative of much of the rest of its reunification jurisprudence. On the other hand, we felt that it was absolutely essential to include a new chapter—Chapter 6 in this edition—on the nexus between German constitutional law and international law and European law. A central feature of the Basic Law is its openness to participation in and constitutional engagement with supranational legal orders such as the European Union and the Council of Europe. Article 23 of the Basic Law, for example, commits Germany to the further development of the European Union, just as other provisions permit the transfer of sovereign powers to international organizations (Article 24) and incorporate into domestic law the general rules of international law (Article 25). Several of the cases featured here reveal the Court’s struggle to respect the domestic constitutional order created by the Basic Law as well as the Basic Law’s commitment to internationalism. Needless to say, these interests sometimes seem irreconcilable, perhaps most significantly when the Court has considered the force that decisions of supranational and international tribunals will have in the German legal order. Of capital importance are the Court’s Maastricht Treaty and Lisbon Treaty cases. In both judgments, the Constitutional Court raised questions about the amending treaties’ compatibility with the essential and unamendable features of Germany’s constitutional democracy. Moreover, in Lisbon, the Court set procedural and substantive limits on the further transfer of German sovereignty to the European Union. Finally, we have made two changes in the appendices. We thought it would be useful in this edition to provide brief biographical sketches of all the presidents and vice presidents who have been selected to preside over the Court’s First and Second Senates, which are independent of each other and speak in the name of the German people. These short biographies are revealing; they tell us much about the personalities of the Court’s presiding justices and the change in the pattern of their recruitment over the years. Until 1987 the president and vice president served as the presiding justices respectively of the First and Second Senates. In recent decades, however, this

xvi Pr eface to the Thir d Edition

practice has not held up. As the biographical sketches in Appendix B disclose, a president or vice president may be elected to preside over the First or Second Senate. Finally, we are dropping the appendix that included selected provisions of the Basic Law. The relevant constitutional provisions at issue in our discussion of the Court’s decisions are now presented in the various chapters and are, in any case, easily available in English-language translations on the Internet. In par ticu lar, we have relied on the official English-language version published by the German Bundestag. The most recent version of this translation by Christian Tomuschat and Donald Kommers was produced in cooperation with the Bundestag’s Language Ser vice Department. It is available at https://www.btg-bestellservice.de/pdf/80201000.pdf.

Acknowledgments ∂ Each of us used the second edition and early drafts of the third edition in our advanced seminars on German and comparative constitutional law. The response of our students—mainly doctoral candidates in political science, third-year law students, and foreign law graduates pursuing ll.m. degrees in international human rights law—has been enthusiastic, reinforcing our determination to go forward with this edition. Their critical engagement with the cases and issues featured in the volume helped us greatly to rethink certain aspects of its organization and analysis. We have benefited tremendously from the help and advice of several legal scholars, political scientists, and other academicians. For their generous assistance and helpful comments on this and previous editions, we owe a special word of thanks to Winfried Brugger, David Currie, and Walter Murphy. We regret that we will not be able to share the fruits of this effort with these departed friends and colleagues. We have relied on the advice and inspiration of other colleagues and peers, including David Beatty, Armin von Bogdandy, Michael Bothe, Sujit Choudhry, David Danelski, Erhard Denninger, Edward Eberle, Mary Ann Glendon, H. Patrick Glenn, Ran Hirschl, Vicki Jackson, Alexandra Kemmerer, Pierre Legrand, Ralf Michaels, Christoph Möllers, Vlad Perju, Peter Quint, Georg Ress, Kim Lane Scheppele, Bernhard Schlink, Eberhard Schmidt-Assman, Miguel Schor, Anja Seibert-Fohr, Torsten Stein, Klaus Stern, Christian Tomuschat, Mark Tushnet, Dieter Umbach, Uwe Wesel, Ingrid Wuerth, and Peer Zumbansen. For their significant assistance we would also like to thank these former and sitting justices of the Federal Constitutional Court: Susanne Baer, Ernst Benda, BrunOtto Bryde, Udo Di Fabio, Dieter Grimm, Renate Jaeger, Paul Kirchhof, Jutta Limbach, Gertrude Lübbe-Wolff, Rudolf Mellinghoff, Lerke Osterloh, Andreas Paulus, Helga Seibert, and Helmut Steinberger. We are also grateful to the Constitutional Court’s administrative directors Karl-Georg Zierlein (1973–98) and Elke-Luise Barnstedt (1999–2010). They graciously coordinated our visits to the Court, helping us secure access to the Court’s justices, its library, its archives, statistical information, and otherwise inaccessible decisional materials. Matching their generosity were Volker Roth-Plettenberg (the Court’s head librarian since 1992) and the Court’s chief of protocol Margret Böckel. We also received valuable assistance from so many of the Court’s clerks that we hesitate to single out any of them for fear that we will overlook someone to whom we are no less grateful. Still, it would be an injustice to fail to mention the helpful, patient, and inspiring clerks with whom we have had extensive contact, especially Felix Hanschmann, Karen Kaiser, Stefan Magen, Nele Matz-Lück, Felix Merth, Rainer Nickel, Anne Sanders, Heiko Sauer, and Christian Walter. For reading and commenting on parts of the third edition, we wish to thank Stefan Brink, Ulrike Bumke, Paolo Carozza, Edward Eberle, Thomas Flint, Richard

xviii Ac know ledg ments

Garnett, Rainer Grote, Arthur Gunlicks, Matthias Hartwig, Karen Kaiser, V. Bradley Lewis, James McAdams, Rainer Nickel, Frank Schorkopf, Anja Seibert-Forh, Christopher Whelan, Christopher Witteman, Ingrid Wuerth, Diana Zacharias, and Peer Zumbansen. Much of the work on this volume was carried out at Heidelberg’s Max Planck Institute of Comparative and International Public Law. We would like to thank the Institute’s current and former directors—Rudolf Bernhardt, Armin von Bogdandy, Karl Doehring, Jochen Abr. Frowein, and Rüdiger Wolfrum—for their generosity in providing us, at different times, with fi nancial support, office space, and ready access to the Institute’s splendid library and unsurpassed bibliographical resources. It is not an exaggeration to say that this effort would not have been possible without the camaraderie, kindness, hospitality, and stimulation that we have enjoyed while resident at the Institute, one of the fi nest research settings in the world. We have especially benefited from scholarly exchanges with the Institute’s remarkable research staff and frequent guests, including Jürgen Bast, Jochen von Bernstorff, Pia Carazo, Stephanie Dagron, Philipp Dann, Sergio Dellavalle, Thomas Giegerich, Matthias Goldmann, Rainer Grote, Alexandra Guhr, Michael Hahn, Matthias Hartwig, Holger Hestermeyer, Mahulena Hofmann, Cristina Hoss, Daniel Klein, Steven Less, Emmanuelle Mantlik, Nele Matz-Lück, Mariela Morales-Antoniazzi, Werner Morvay, Georg Nolte, Karin Oellers-Frahm, Stefan Oeter, Dagmar Richter, Anja Seibert-Fohr, Silja Vöneky, Nicola Wenzel, Diana Zacharias, and Andreas Zimmerman. Donald Kommers spent the spring semester of 2009 as the Axel Springer Berlin Prize Fellow at the American Academy in Berlin where he continued to reflect and write on aspects of German constitutional law and politics. For that support he is grateful to Gary Smith, the Academy’s gracious and capable director. Russell Miller was awarded a Fulbright Senior Research Fellowship in 2009–10. The fellowship permitted him to work on this and other comparative law projects while in residence at Heidelberg’s Max Planck Institute. He is indebted to the Fulbright Commission for that honor and generous support. Both authors have been supported and enriched in this work by their home institutions. Russell Miller wishes to thank Deans Jack Miller and Donald Burnett of the University of Idaho College of Law. Jack Miller has been especially supportive, as a friend and mentor, during Russell Miller’s academic career. Russell Miller also wishes to thank Deans Rodney Smolla, Mark Grunewald, and Nora Demleitner of the Washington & Lee University Law School. They provided encouragement and support. Russell Miller also received support for this work from the Washington & Lee Frances Lewis Law Center and the Washington & Lee Transnational Law Institute, the latter of which is directed by his cherished colleague Mark Drumbl. Donald Kommers is grateful to Deans David Link and Patricia O’Hara for all their kindness during this book’s preparation. He also wishes to thank Roger Jacobs and Edward Edmunds, Notre Dame’s head law librarians who spared no expense in procuring the materials needed for this project. Other Notre Dame law librarians to whom he owes thanks are Patti Ogden, Warren Rees, Dwight King, Carmela Kinslow, and Mary

Ac know ledg ments xix

Cowsert; for technical assistance in getting him out of computer glitches, he thanks Dan Manier, Jeff Morgan, and Susan Good. As professor emeritus, he is particularly grateful to Thomas Burish, University of Notre Dame Provost, for generously providing him with the logistical support needed for the completion of this project. For student assistance we are grateful to Ariel Brio, Brian Burchett, Frank Colucci, Melissa Brown, Michael Chambliss, Colin Littlefield, Peggy Fiebig, Jonas Callis, and Karolina Kurzawa. Matthias Schmidt came to our aide in the last years of our work on this book and, to the very end, remained a reliable assistant, insightful reader, and encouraging friend. For two years during our early work on the third edition we were assisted by Jeremy Rabideau, a Notre Dame doctoral candidate in political science. Jeremy competently and professionally dispatched a broad range of indispensable assignments, including the writing of summaries for scores of the Constitutional Court’s decisions and of the developing research from English and German language scholarship and literature. We are thankful for his role in this effort. For secretarial assistance in the Notre Dame Law School we are grateful to Lu Ann Tate, Tina Jankowski, Rebecca Ward, and the indomitable Debi McGuigan-Jones. Not to be overlooked is the wonderful cooperation we have received from Duke University Press. In particular, we would like to acknowledge the support of Duke’s senior editor, Valerie Millholland. We are especially thankful for her patience in waiting longer than expected for the arrival of the third edition manuscript. For their timely and efficient navigation of the manuscript through the stages of editing, design, and production we are most grateful to Miriam Angress, Nancy Hoagland, and Debbie Masi. Finally, we wish to thank Justice Ruth Bader Ginsburg of the U.S. Supreme Court for graciously consenting to write the foreword to this edition.

Note on Translation and Judicial Opinions ∂ Edmund Wilson once remarked that “the best translations—the Rubaiyat, for example—are those that depart most widely from the originals—that is, if the translator himself is a poet.” However sound such advice might be with respect to the translation of novels and poems, it is normally bad advice when rendering foreign legal documents into English. The judicial opinions featured in this volume are collegial in nature. They are institutional products often pounded out on the anvil of negotiation and compromise. Personalized dissenting opinions on the Federal Constitutional Court were not allowed until 1971 and since then, as now, they are relatively rare. Less than 1 percent of the Court’s published decisions have featured dissenting opinions. The deliberation and trade-offs that drive this penchant for consensus lead to judicial opinions often marked by abstract, repetitious, and convoluted prose. The job of the translator is to render such prose as much as possible into idiomatic English and to produce approximate English equivalents to the legal and technical terminology of the original German. Th is has been an arduous task for all the translators whose work contributed to the English-language case excerpts published in this volume. The fi nal result, we trust, are translations that are both readable and faithful representations of German constitutional thought. As noted in the preface to this edition, English-language translations of excerpts from the most noteworthy decisions of the Federal Constitutional Court are less rare today than they were when the first edition was published. We, the authors, translated several judgments featured in this edition; other translations were prepared for us by Mark Hepner, Peggy Fiebig, Matthias Schmidt, Catriona Thomas, and Albert Wimmer. But no one has done more to expand English-language access to the Court’s jurisprudence than Hedwig Weiland, the Constitutional Court’s staff translator. She has masterfully supervised the translation of scores of the Court’s most important decisions, sometimes on breathtakingly short notice. A number of these translations have been reproduced here, often with extensive adaptation by us. These editorial changes reflect the very different aims of her project and ours. While the Court strives to produce the most accurate translations of its decisions, we often have sought to strike the all-too-elusive balance between faithfulness to the original German and literary grace. Of course, the official decisions always remain the Court’s published German-language opinions. The Court has generously granted us the right to make use of its translations in this book. And we have relied on other translations produced under Ms. Weiland’s supervision to expedite and enrich our work. Th is collaboration has required us to correspond frequently with her. She has consistently been a gracious and insightful interlocutor. We owe her much, but above all she has our enduring respect. The opinions of the Federal Constitutional Court compete, in their length, with those of the U.S. Supreme Court. Many of them exceed five thousand words. But

xxii Note on Tr anslation and Judicial Opinions

they follow a uniform structure. The typical opinion begins with a listing of the leading sentences (Leitsätze) or propositions of law advanced in the judgment. The caption following the Leitsätze identifies the senate deciding the case, along with the date of the decision, the nature of the proceeding, and a short statement of the ruling (Entscheidungsformel). Subsequently and sequentially, in major parts of the case, the opinion proceeds to describe the factual background of the case, including the parties in dispute, the constitutional issue or issues up for decision, and the statutes or regulations requiring interpretation. It continues with a detailed presentation of the arguments on both sides, fi rst on behalf of the petitioner, then on behalf of the respondent. The opinion concludes with sections addressing the Court’s jurisdiction over the case and, fi nally, the Court’s reasoning on the merits. One practice in par ticu lar distinguishes German judicial decisions from those handed down in common-law jurisdictions. German cases do not reveal the names of the parties before the courts, a convention that also prevails at the Federal Constitutional Court. Cases are cited by number, date, and jurisdictional category. An example is the East German Disbarment Case (1995; no. 10.15) in which East German lawyers fi led constitutional complaints contesting their disbarment following reunification. The case appears as Nr. 11 in Volume 93 at page 213 of the official reports (Entscheidungen des Bundesverfassungsgerichts), cited as 93 BVerfGE 213 (1995). The opinion begins with the caption, “Judgment of the First Senate of 9 August 1995,” immediately followed by reference to “1 BvR 2263/94.” The numbers refer to the 2,263rd constitutional complaint (the jurisdictional category) fi led with the First Senate in the year 1994. (The case was combined with the similar complaints of two other lawyers.) The unnamed lawyer challenging the constitutionality of his disbarment is described simply as the “complainant.” We found it convenient, however, to label this case East German Disbarment to identify its subject matter. It is a common practice among constitutional scholars to name a case by its main topic (e.g., Abortion I Case), its institutional focus (e.g., Bundesrat Case), its documentary source (e.g., Lisbon Treaty Case), or by some other prominent feature such as the geographic location of a major event (e.g., Lebach Case) or the name of the prominent public figure involved (e.g., Princess Soraya Case or Princess Caroline of Monaco II Case). The translations in this book are confi ned largely to selected passages from the Court’s reasoning, preceded by our bracketed summary of the facts of the case and its procedural posture. The original opinions are lavish with citations to the Court’s existing decisions and to the secondary literature, including the Court’s rehearsal of the views advanced in academic treatises and commentaries on the Basic Law. With rare exceptions we have omitted string citations to the Court’s decisions and references to the secondary literature. We have translated the terms Beschwerdeführer and Antragsteller variously as “complainant,” “plaintiff,” and “petitioner.” Complainant refers to an entity ( juristic person or association) or natural person who fi les a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court. All other proceedings before the Constitutional Court involve petitions or referrals by legislators, other public officials, and governmental entities. A petitioner

Note on Tr anslation and Judicial Opinions xxiii

is an agency or official who initiates one of these proceedings. We often label the plaintiff as the litigant before an ordinary court where the latter refers a constitutional issue in the pending case to the Federal Constitutional Court in an action known as a concrete judicial review proceeding. Other practices and conventions followed by the Court in deciding constitutional cases are described in more detail in Chapter 1.

Abbreviations ∂ bgb bgb1 bgh BGHSt bghz brd BVerfG BVerfGE BVerfGG BVerfGK cdu csu DIN DSU dkp dm DRiG ealg ecthr EEC EFSF eu EuGRZ fap fdp

Bürgerliches Gesetzbuch (Civil Code) Bundesgesetzblatt (Federal Law Gazette [statutes at large]) Bundesgerichtshof (Federal Court of Justice) Entscheidungen des Bundesgerichtshof in Strafsachen (Decisions of the Federal Court of Justice in Criminal Matters) Entscheidungen des Bundesgerichtshof in Zivilsachen (Decisions of the Federal Court of Justice in Civil Matters) Bundesrepublik Deustschland (Federal Republic of Germany) Bundesverfassungsgericht (Federal Constitutional Court) Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court) Bundesverfassungsgerichtsgesetz (Federal Constitutional Court Act [FCCA]) Kammerentscheidungen des Bundesverfassungsgerichts (Chamber Decisions of the Federal Constitutional Court) Christlich-Demokratische Union (Christian Democratic Union) Christlich-Soziale Union (Christian Social Union) Deutsches Institute für Normung (German Institute for Standardization) Deutsche Soziale Union (German Social Union) Deutsche Kommunistische Partei (German Communist Party) Deutsche Mark (German Mark) Deutsches Richtergesetz (German Judiciary Act [GJA]) Entschädigungs- und Ausgleichsleistungsgesetz (Compensation and Equalization Payments Act) European Court of Human Rights European Economic Community European Financial Stability Facility European Union Europäische Grundrechte-Zeitschrift (European Journal of Basic Rights) Freiheitliche Deutsche Arbeiterpartei (Free German Workers Party) Freie Demokratische Partei (Free Democratic Party)

xxvi Abbr eviations

gg Grundgesetz (Basic Law) GO-BVerfG Geschäftsordung des Bundesverfassungsgerichts (Rules of Procejsc kpd kug nato nl npd pds RGSt rgz sed spd srp StGB UN weu

dure of the Federal Constitutional Court) Judicial Selection Committee Kommunistische Partei Deutschlands (Communist Party of Germany) Kunsturheber-rechtsgesetz (Art Copyright Act) North Atlantic Treaty Organization National List Nationaldemokratische Partei Deutschlands (National Democratic Party) Partei des Demokratischen Sozialismus (Party of Democratic Socialism) Entscheidungen des Reichsgerichts in Strafsachen (Decisions of the [Reich] Imperial Court of Justice in Criminal Matters) Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the [Reich] Imperial Court of Justice in Civil Matters) Sozialistische Einheitspartei Deutschlands (Socialist Unity Part of Germany) Sozialdemokratische Partei Deutschlands (Social Democratic Party) Sozialistische Reichspartei (Socialist Reich Party) Strafgesetzbuch (German Penal Code) United Nations Western European Union

1 The Federal Constitutional Court ∂ The jurisdiction of the U.S. Supreme Court extends to cases and controversies arising under the constitution and federal law. Its authority reaches even to private law when the parties in dispute are citizens of different states. By contrast, Germany’s Federal Constitutional Court (Bundesverfassungsgericht), as guardian of the constitutional order, is a specialized tribunal empowered to decide only constitutional questions and a limited set of public-law controversies. Thus, Germany ranks among those civil-law countries with a centralized system of judicial review.1 The deeply ingrained Continental belief that judicial review is a political act, following the assumption that “constitutional law—like international law—is genuine political law, in contrast, for example, to civil and criminal law,”2 prompted Germans to vest the power to declare laws unconstitutional in a special tribunal staffed with judges elected by Parliament and widely representative of the political community rather than in a multi-jurisdictional high court of justice dominated by appointed legal technicians. Another factor that encouraged the framers of West Germany’s Constitution, known as the Basic Law (Grundgesetz), to assign the function of constitutional judicial review to a single court was the traditional structure of the German judiciary and the unfamiliarity of its judges with constitutional adjudication. The German judiciary includes separate hierarchies of administrative, labor, fiscal, and social courts, while civil and criminal jurisdiction is vested in another, much larger, system of ordinary courts.3 All trial and intermediate courts of appeal are state (Land) tribunals; federal courts serve as courts of last resort. The federal courts, divided by subject matter, are at the apex of their respective judicial hierarchies. These tribunals include the Federal Court of Justice (Bundesgerichtshof) with jurisdiction over civil and criminal matters, the Federal Administrative Court (Bundesverwaltungsgericht), the Federal Finance Court (Bundesfi nanzhof), the Federal Labor Court (Bundesarbeitsgericht), and the Federal Social Court (Bundessozialgericht). Like the appellate courts generally, these tribunals are staffed by a host of judges (more than one hundred on the Federal Court of Justice alone) who sit in panels of five. The complexity of this structure and the lack of any tradition of stare decisis would have rendered an American-style, decentralized system of judicial review, in which all courts may declare laws unconstitutional, unworkable in Germany. Judicial attitudes toward constitutional review also militated against a decentralized system. The background and professional training of the 20,101 career judges (as of 31 December 2008)4 who staff the German judiciary are unlikely to produce the independence of mind typical of judges in the Anglo-American tradition. German

4 chapter one

judges usually enter the judiciary immediately after the conclusion of their legal training,5 and success is denoted by promotion within the ranks of the judicial bureaucracy. In contrast, most American judges are appointed at a later stage of their careers, usually after achieving success in public office or as private lawyers. German judges have been characterized as seeking to clothe themselves in anonymity and to insist that it is the court and not the judge who decides; moreover, the judicial task is to apply the law as written and with exacting objectivity.6 Although this portrayal of the typical German judge is less true today than it was fi ft y years ago, the conservative reputation and public distrust of the regular judiciary at the time the Basic Law was created were sufficient to ensure that the power of judicial review would be concentrated in a single and independent tribunal.7

origin German legal scholars have traditionally distinguished between constitutional review (Verfassungsgerichtsbarkeit) and judicial review (richterliches Prüfungsrecht). Judicial review, the more inclusive term, signifies the authority of judges to rule on the constitutionality of law. Constitutional review, which in Germany antedates judicial review, is associated with Germany’s tradition of monarchical constitutionalism, stretching from the German Confederation of 1815 through the Constitution of 1867 (establishing the North German Confederation) and up to and including the Imperial Constitution of 1871. During this period (1815–1918) when German constitutional thought pivoted on the concepts of state and sovereignty,8 constitutional review provided the mechanism for defi ning the rights of sovereign states and their relationship to the larger union into which they were incorporated. Judicial review, on the other hand—a device for protecting individual rights—is associated with Germany’s republican tradition, beginning roughly with the abortive Frankfurt Constitution of 1849, continuing with the Weimar Constitution of 1919, and relaunched with the Basic Law of 1949. Constitutional Review. Constitutional review appeared in embryonic form during the Holy Roman Empire. The need for unity among the principalities of the empire and peace among their warring princes prompted Maximilian I in 1495 to create the Imperial Chamber Court (Reichskammergericht), before which the German princes resolved their differences. By the seventeenth century the Imperial Chamber Court and some local courts occasionally enforced the “constitutional” rights of estates against crown princes. Compacts or treaties governed their mutual rights and obligations. Constitutional review commenced when these tribunals enforced—to the extent that their rulings could be enforced—the corporate rights of estates under these documents.9 Constitutional review in its modern form emerged in the nineteenth century.10 Again, it served as a principal tool for the resolution of constitutional disputes among

The Feder al Constitutional Court 5

and within the individual states of the German Empire and often between the states and the national governments.11 Under Germany’s monarchical constitutions, the forum for the resolution of such disputes was usually the parliamentary chamber in which the states were corporately represented. Under Germany’s republican constitutions, on the other hand, the forum was usually a specialized constitutional tribunal, the most notable of which, prior to the creation of the Federal Constitutional Court, was the Weimar Republic’s State High Court (Staatsgerichtshof). As major agencies of public law commissioned to decide sensitive political issues, these courts were independent of the regular judiciary and were staffed with judges selected by legislators. Like most constitutional courts at the state level before and after the Nazi period, the State High Court was a part-time tribunal whose members convened periodically to decide constitutional disputes. Its jurisdiction included 1) the trial of impeachments brought by the Parliament (Reichstag) against the president, chancellor, or federal ministers for any willful violation of the constitution; 2) the resolution of differences of opinion concerning a state’s administration of national law; and 3) the settlement of constitutional confl icts within and among the separate states as well as between states and the Reich. The State High Court’s membership varied according to the nature of the dispute before it; the more “political” the dispute the more insistent was Parliament on having elected its members.12 These structures and powers, which influenced the shape of the Federal Constitutional Court, highlight three salient features of constitutional review in German history. First, as just noted, an institution independent of the regular judiciary exercises such review. Second, it takes cases on original jurisdiction, deciding them in response to a simple complaint or petition, unfettered by the technicalities of an ordinary lawsuit. Finally, it settles constitutional disputes between and within governments. Constitutional review is thus a means of protecting the government from itself and also from the excesses of administrative power. But constitutional review as described here does not contemplate “judges intervening on behalf of citizens against the executive branch of government.”13 The German legal order has always distinguished sharply between administrative and constitutional law. The juridical basis of the distinction, according to Franz Jerusalem, is that the former concerns the execution of the state’s will once it is translated into law, whereas the latter concerns those organs of government constitutionally obligated to form the state’s will.14 These organs—the constitutionally prescribed units of the political system—and these alone are the subjects of constitutional review. Judicial Review. The doctrine of judicial review, unlike constitutional review, was alien to the theory of judicial power in Germany.15 A judge’s only duty under the traditional German doctrine of separation of powers was to enforce the law as written. About mid-nineteenth century, however, some German legal scholars and judges sought to cultivate ground in which judicial review might blossom. In 1860 Robert von Mohl, who was acquainted with the Federalist Papers and the work of the U.S.

6 chapter one

Supreme Court, published a major legal treatise in defense of judicial review.16 Two years later an association of German jurists, with Rudolf von Ihering emerging as its chief spokesman, went on record in favor of judicial review. Jurists attending the meeting recalled that the Frankfurt Constitution called for the creation of an Imperial Court of Justice (Reichsgericht). Th is court would have had the authority to hear complaints by a state against national laws allegedly in violation of the constitution and even by ordinary citizens claiming a governmental invasion of their fundamental rights, foreshadowing by a century similar authority conferred on the Federal Constitutional Court. Their views, however, like the Frankfurt Constitution itself, failed to take root in the legal soil of monarchical Germany (1871–1918).17 The Weimar Republic provided a climate more sympathetic to judicial review. Inspired by the Frankfurt Constitution of 1849, the Weimar Constitution of 1919 established a constitutional democracy undergirded by a bill of rights. The Weimar period also witnessed the continuing influence of the “free law” school (Freirechtsschule) of judicial interpretation,18 marking a significant challenge to the dominant tradition of  legal positivism. And although the Weimar Constitution remained silent with respect to the power of the courts to review the constitutionality of law,19 judicial review as a principle of limited government enjoyed strong support in the Weimar National Assembly. As Hugo Preuss predicted—and warned—the Weimar Constitution’s failure to expressly ban judicial review prompted courts to arrogate this power to themselves.20 In the early 1920s several federal high courts, including the Imperial Court of Justice (which was established under the monarchical regime in 1879 and survived the republican revolution of 1918 with its jurisdiction—and name—intact), suggested in dicta that they possessed the power to examine the constitutionality of laws.21 On 15 January 1924, deeply disturbed by the swelling controversy over the revaluation of debts, the Association of German Judges confidently announced that courts of law were indeed empowered to protect the right of contract and, if necessary, to strike down national laws and other state actions—or inactions that failed to safeguard property rights—on substantive constitutional grounds.22 Several months later, the Imperial Court of Justice announced that “in principle courts of law are authorized to examine the formal and material validity of laws and ordinances.”23 State courts during the Weimar period held fi rm to the German tradition that judges are subject to law and have the duty to apply it even in the face of confl icting constitutional norms. Yet even here, differing postures toward judicial review were beginning to emerge. Although most state constitutions said nothing about judicial review, some courts followed the lead of the Imperial Court of Justice by accepting judicial review in principle; however, they seldom invoked it to nullify legislation. Only the Bavarian Constitution expressly authorized courts to review laws in light of both state and national constitutions. The Schaumburg-Lippe Constitution, echoing the still-dominant German view, expressly denied this power to the courts.24 When the German states (Länder) reemerged as viable political entities after World War II, judicial review appeared once more, this time as an express principle

The Feder al Constitutional Court 7

in several Land constitutions. Perhaps because of the Weimar experience, however, these documents did not authorize the ordinary courts (with civil and criminal jurisdiction) and the specialized courts (including administrative, social, labor, and tax jurisdiction) to review the constitutionality of laws. Once again, consistent with the older and more fully established tradition of constitutional review, this authority was vested in specialized courts staffed with judges chosen by the state parliaments from a variety of courts or constituencies. In any event, as this survey of German constitutional review demonstrates, the framers of the Basic Law had plenty of precedents on which to draw in constructing their own version of constitutional democracy. Herrenchiemsee Conference. It should now be clear that judicial review in Germany did not spring full-blown from the Basic Law of 1949. It was adopted with German precedents in mind. The Allied powers did, of course, concern themselves with the reorganization of the judicial system.25 They insisted that any future government of Germany must be federal, democratic, and constitutional. A constitutional government, in the American view at least, implied the judicial power to assess the constitutionality of laws and other official acts. Judicial review was certainly implicit in the American understanding of an independent judiciary. The military governors, however, did not impose judicial review on a reluctant nation. The Germans decided on their own to establish a constitutional court, to vest it with authority to nullify laws contrary to the constitution, and to elevate this authority into an express principle of constitutional governance.26 While they were familiar with the American system of judicial review and were guided by the American experience in shaping their constitutional democracy,27 Germans relied mainly on their own tradition of constitutional review. The groundwork for the Basic Law was prepared in a resplendent nineteenthcentury castle on an island in the Chiemsee—a vast Bavarian lake—during August 1948. On the initiative of Bavaria’s state governor, Minister-President Hans Ehard, the  Länder in the Allied zones of occupation called on a group of constitutional law experts to produce a fi rst draft of a constitution to expedite the work of the ensuing constitutional convention known as the Parliamentary Council.28 The Herrenchiemsee proposals, which included provisions for a national constitutional tribunal,29 followed the recommendations of Professor Hans Nawiasky, commonly regarded as the father of the postwar Bavarian Constitution. Like many other state constitutions drafted in 1946 and 1947, the Bavarian charter provided for a state constitutional court. In cooperation with Hans Kelsen, Nawiasky had prepared a working paper proposing the establishment of a constitutional tribunal modeled after the Weimar Republic’s State High Court. Nawiasky was a strong advocate of judicial review during the Weimar period, and Kelsen was well known as the founder of the Austrian Constitutional Court.30 Claus Leusser, an Ehard associate and later a justice of the Federal Constitutional Court, also helped to draft the Herrenchiemsee judicial proposals. As a practical model for defi ning the powers of the proposed constitutional court, the Herrenchiemsee drafters relied mainly on the Weimar era’s State High Court.31

8 chapter one

The draft plan envisioned a tribunal vested with both the competence of the State High Court (i.e., its constitutional review jurisdiction) and the authority to hear the complaint of any person alleging that any public agency had violated his or her constitutional rights. Aware of the potential power of the proposed court, the conferees recommended a plan of judicial recruitment that would broaden the court’s political support. The plan included proposals for 1) the election of justices in equal numbers by the Parliament (Bundestag) and the Federal Council of States (Bundesrat), 2) the participation of both of these bodies in selecting the court’s presiding justice (president), and 3) the selection of one-half of the justices from the high federal courts of appeal and the highest state courts.32 But the drafters were at odds over how the new court should be structured; the discord centered on whether it should be organized as a tribunal separate from and independent of all other courts or carved out of one of the federal high courts of appeal.33 Parliamentary Council. The debate over the proposed court’s structure continued in the constitutional assembly, officially known as the Parliamentary Council (Parlamentarischer Rat).34 It all boiled down to a dispute over the nature of the new tribunal. Should it be like Weimar’s State High Court and serve mainly as an organ for resolving confl icts between branches and levels of government (i.e., a court of constitutional review)? Or should it combine such jurisdiction with the general power to review the constitutionality of legislation (i.e., a court of judicial review)? In line with the Herrenchiemsee plan, the framers fi nally agreed to create a constitutional tribunal independent of other public-law courts, but they disagreed over how much of the constitutional jurisdiction listed in the proposed constitution should be conferred on it as opposed to other high federal courts. The controversy centered on the distinction between what some delegates regarded as the “political” role of a constitutional court and the more “objective” lawinterpreting role of the regular judiciary. Some delegates preferred two separate courts—one to review the constitutionality of laws ( judicial review) and the other to  decide essentially political disputes among branches and levels of government (constitutional review). Others favored one grand, multipurpose tribunal divided into several panels, each specializing in a par ticu lar area of public or constitutional law. The latter proposal was strenuously opposed by many German judges, who were alarmed by any such mixing of law and politics in a single institution.35 The upshot was a compromise resulting in a separate constitutional tribunal with exclusive jurisdiction over all constitutional disputes, including the authority to review the constitutionality of laws. The fi nal version of the Basic Law extended the newly created Federal Constitutional Court’s jurisdiction to twelve specific categories of disputes (Article 93 (1)) and “such other cases as are assigned to it by federal legislation” (Article 93 (2)). Originally the Court’s jurisdiction could be invoked only by federal and state governments (i.e., the chancellor or a Land minister-president and his or her cabinet), parliamentary political parties, and, in certain circumstances, regular courts of law.

The Feder al Constitutional Court 9

The framers rejected the Herrenchiemsee proposal to confer on private parties standing to petition the Court in defense of their constitutional rights, a decision in line with the general practice of constitutional review in Weimar Germany and Austria. (As noted below, however, the individual right to petition the constitutional court was restored by legislation in 1951 and incorporated into the Basic Law in 1969.) The two main parties in the Parliamentary Council favored these limited rules of access, the Social Democratic Party of Germany (spd) because the limitations would protect political minorities in and out of the Parliament, and the Christian Democratic Union (cdu) because its members saw the limitations as equally useful in preserving German federalism.36 The interests of both political parties were also reflected in judicial selection clauses specifying that the Federal Constitutional Court shall consist of “federal judges and other members,” half “to be elected by the Bundestag and half by the Bundesrat” (Article 94). Christian Democrats were thus assured of a strong “federal” presence on the Court, just as Social Democrats could take comfort in knowing that the Court would not be dominated by professional judges drawn wholly from a conservative judiciary. Impatient to get on with the work of producing a constitution, the framers stopped there, leaving other details of the Constitutional Court’s organization and procedure to later legislation. But the Court had been given a breathtaking mandate, both in scope and in depth; its jurisdiction was unlike any German court that had preceded it and at the time was unique in comparison with other high courts of judicial review around the world. Legislative Phase. Another two years of parliamentary debate were necessary after the promulgation of the Basic Law to produce the enabling statute creating the Federal Constitutional Court. As had been the case in the Parliamentary Council, the shape of the new tribunal represented compromises between the confl icting perspectives of the cdu-led federal government, the spd opposition, and the states (represented in the Bundesrat) on such matters as judicial selection and tenure, the ratio of career judges to “other members,” the qualifications of judicial nominees, the Court’s size and structure, and the degree of control over the Court to be exercised by the Federal Ministry of Justice (Bundesministerium der Justiz).37 All participants in the debate recognized that the Court’s political acceptance would depend on broad agreement on these matters across party and institutional lines. Finally, after months of intense negotiation within and between the Bundestag and the Bundesrat, a bill emerged with the overwhelming support of the major parliamentary parties and all branches of government. The result was the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) of 12 March 1951 (hereafter referred to as the fcca).38 In its current version, the fcca includes 121 operative sections that codify and flesh out the Basic Law’s provisions relating to the Court’s organization, powers, and procedures, important features of which are discussed below. Representing numerous political compromises, the fcca 1) lays down the qualifications and tenure of the

10 chapter one

Court’s members, 2) specifies the procedures of judicial selection, 3) provides for a two-senate tribunal, 4) enumerates the jurisdiction of each senate, 5) prescribes the rules of access under each jurisdictional category, 6) defi nes the authority of the plenum (both senates sitting together), and 7) establishes the conditions for the removal or retirement of the Court’s members.

jurisdiction The U.S. Constitution contains no express reference to any judicial power to pass upon the constitutional validity of legislative or executive decisions. In the seminal case Marbury v. Madison (1803) Chief Justice John Marshall derived the doctrine of judicial review by inference from the nature of a written constitution and the role of the judiciary.39 The Basic Law, by contrast, leaves nothing to inference. It enumerates all of the Constitutional Court’s jurisdiction. The Court is authorized to hear cases involving the following actions: Forfeiture of basic rights (Article 18) Constitutionality of political parties (Article 21 (2)) Review of election results (Article 41 (2)) Impeachment of the federal president (Article 61) Disputes between high state organs (Article 93 (1) [1]) Abstract judicial review (Article 93 (1) [2]) Federal-state confl icts (Articles 93 (1) [3] and 84 (4)) Individual constitutional complaints (Article 93 (1) [4a]) Municipal constitutional complaints (Article 93 (1) [4b]) Other disputes specified by law (Article 93 (2)) Removal of judges (Article 98) Intrastate constitutional disputes (Article 99) Concrete judicial review (Article 100 (1)) Public international law actions (Article 100 (2)) State constitutional court references (Article 100 (3)) Applicability of federal law (Article 126)

The Court thus has the authority not only to settle conventional constitutional controversies but also to try impeachments of the federal president (Bundespräsident), to review decisions of the Bundestag relating to the validity of an election, and to decide questions critical to the defi nition and administration of federal law. To these constitutionally articulated responsibilities the Bundestag has added another prominent jurisdictional power; Article 32 of the fcca permits the Court to issue a temporary injunction in par ticu lar circumstances. Each of the jurisdictional categories listed above is assigned to either the First or Second Senate. The most important of these categories involve the constitutional complaints brought by ordinary citizens, concrete judicial review, requests for temporary

The Feder al Constitutional Court 11

table 1. Federal Constitutional Court Cases, 1951–2011 Proceeding Constitutional Complaints Concrete Judicial Review Requests for Temporary Injunction Disputes between Federal Organs Abstract Judicial Review Federal-State Confl icts Unconstitutional Parties Other Proceedings Totals

Docketed

Decided

188,187 3,511 2,370

166,608* 1,261** 1,847

180 172 45 8 545 195,018

97 109 27 5 291 170,245

* Constitutional complaints decided by the senates: 4,034. The remainder were decided by three-justice committees/chambers. ** Concrete judicial review cases decided by the senates: 1,043. The remainder were decided by the three-justice chambers.

Sources: “Docketed”: Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Eingänge nach Verfahrensarten,” available at www.bundesverfassungsgericht.de/organisation/gb2011/A-I-4.html; “Decided”: Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Erledigungen nach Verfahrensarten,” available at www.bundesverfassungsgericht .de/organisation/gb2011/A-I-5.html.

injunctions, disputes between high organs of the national government, abstract judicial review, federal-state confl icts, and challenges to the constitutionality of political parties—importance here being measured by the number of cases fi led in each category. As Table 1 shows, constitutional complaints make up about 96 percent of the Court’s caseload. As we shall see, however, some of the Court’s most politically important work arises in other jurisdictional areas. Constitutional Complaints. A constitutional complaint may be brought by individuals and entities vested with par ticular rights under the constitution. In this sense the constitutional complaint differs from all other proceedings before the Court (except applications for temporary injunctions), because the other proceedings are limited to governmental entities, certain parliamentary groups, and judicial tribunals. After exhausting all available means to fi nd relief in the other courts,40 persons who claim that the state has violated one or more of their rights under the Basic Law may fi le a constitutional complaint with the Federal Constitutional Court. Constitutional complaints must be lodged within a certain time, identify the offending action or omission and the institution of public authority responsible, and specify

12 chapter one

the constitutional right that has been violated.41 The fcca requires the Court to accept for decision any complaint if it is constitutionally significant or if the failure to accept it would work a grave hardship on the complainant.42 The right of an individual to fi le a constitutional complaint was originally bestowed by legislation, and German citizens took advantage of this statutory right in increasing numbers over the years. By the mid-1960s the Court was awash in such complaints. Germans had come to regard the constitutional complaint as an important prerogative. From the beginning, these complaints have constituted the Court’s major source of business. In response, and with the Court’s backing, federal legislators anchored the right to fi le constitutional complaints in the Basic Law itself (Article 93 (1) [4a]). A companion amendment ratified in the same year (1969) vested municipalities with the right to fi le a constitutional complaint if a law violates their right to selfgovernment under Article 28.43 The constitutional complaint was so popu lar that no responsible public official opposed these amendments. Years later a president of the Federal Constitutional Court was moved to say that the “administration of justice in the Federal Republic of Germany would be unthinkable without the complaint of unconstitutionality.”44 According to Article 93 (1) [4a] of the Basic Law, any person may submit a complaint of unconstitutionality to the Court if one of his or her fundamental substantive or procedural rights under the constitution has been violated by “public authority.” “Any person” within the meaning of this provision includes natural persons with the legal capacity to sue as well as corporate bodies and other “legal persons” possessing rights under the Basic Law. As a general rule, only domestic legal persons are permitted to fi le constitutional complaints, although the Court has ruled that foreign corporations are entitled to fi le complaints alleging a violation of the procedural rights secured by Articles 101 (1) [2] and 103. The public authority clause of Article 93 (1) [4a] permits constitutional complaints to be brought against any governmental action, including judicial decisions, administrative decrees, and legislative acts. No ordinary judicial remedy is available against legislative acts. If, however, such an act is likely to cause a person serious and irreversible harm, he or she may fi le the complaint against the act without exhausting other remedies. Finally, over and above these basic threshold requirements, a complaint must be offensichtlich begründet or “clearly justified” (obviously stating a legally justifiable claim) if it is to be accepted and decided on its merits by one of the Court’s three-justice chambers (an internal process described later in this chapter).45 The procedure for fi ling complaints in the Constitutional Court is relatively easy and inexpensive. No fi ling fees or formal papers are required. Increasingly, complaints are prepared with the aid of a lawyer,46 even though no legal assistance is required at any stage of the complaint proceeding.47 As a consequence of these rather permissive submission rules the Court has been flooded with complaints, which have swelled in number from well under 1,000 per year in the 1950s, to around 3,500 per year in the mid-1980s, and rising from around 5,000 per year in the 1990s to a peak of more than 6,300 in 2009. The number of constitutional complaints fi led with the Court

The Feder al Constitutional Court 13

in recent years rivals the number of cases on the appellate docket of the U.S. Supreme Court. Although the Constitutional Court fully reviews all incoming complaints, slightly fewer than 2 percent are successful on the merits. Nevertheless, such complaints result in some of the Court’s most significant decisions and make up more than 50 percent of its published opinions. Concrete Judicial Review. Concrete, or collateral, judicial review arises from an ordinary lawsuit. If an ordinary German court is convinced that a relevant federal or state law under which a case has arisen violates the Basic Law, it must refer the constitutional question to the Federal Constitutional Court before the case can be decided. Judicial referrals do not depend on the issue of constitutionality having been raised by one of the parties. If a collegial court is involved, a majority of its members must vote to refer the question. The petition must be signed by the judges who vote in favor of referral and must be accompanied by a statement of the legal provision at issue, the provision of the Basic Law implicated, and the extent to which a constitutional ruling is necessary to decide the dispute.48 The Federal Constitutional Court will dismiss the case if the referring judges demonstrate less than a genuine conviction that a law or provision of law is unconstitutional or if the case can be decided without settling the constitutional question.49 As a procedural matter, the Court must permit the highest federal organs or a state government to enter the case and must also afford the parties involved in the underlying proceeding an opportunity to be heard. The parties make their representations mainly through written briefs. Temporary Injunctions. Over the Court’s fi rst sixty years its docket has been dominated by constitutional complaints and concrete judicial review proceedings. In recent years, however, applications for temporary injunctions (Einstweilige Anordnungen) have overtaken concrete judicial review proceedings as the Court’s second largest docket item. Alone among the jurisdictional provisions discussed here, applications for temporary injunctions have their basis in a statutory provision (Article 32 of the fcca enacted pursuant to Article 93 (2) of the Basic Law) and not the Basic Law itself. Temporary injunction proceedings differ from all others before the Court in one other important respect: they do not involve the resolution of a substantive constitutional question but, rather, invest the Court with the procedural authority to stay actions or measures if its ability to render a substantive ruling is threatened. Thus, temporary injunction proceedings serve to protect the power of the Court and the public’s interest in having it fulfi ll its role as protector of the constitution. In part, the rising number of temporary injunction proceedings can be attributed to the rising number of constitutional complaints. The Court’s very heavy workload is one reason for what some observers view as an overly slow resolution of its cases. It naturally follows that the length of time a complainant faces in obtaining relief from the Court factors heavily in his or her decision to pursue provisional measures. As one commentator noted, a party willing to bear the costs of bringing a constitutional

14 chapter one

complaint in the fi rst place is likely to feel an urgent need for relief as well.50 Viewed from this perspective, even the one year it takes the Court to resolve 70 percent of all constitutional complaints might seem too long a wait.51 Political strategy, as much as a concern for delayed relief from the Court, plays an equal role in the relatively large number of temporary injunction applications. Laws, executive actions, or judicial orders with time-sensitive objectives can be undermined effectively with a successful temporary injunction application regardless of the outcome in the substantive constitutional challenge, the results of which might be reached long after the fact. Th is kind of political brinksmanship is often on display in temporary injunction proceedings connected with constitutional challenges to foreign policy questions.52 Th is dynamic also highlights the fact that applications for temporary injunctions are not limited to constitutional complainants but are available in all disputes subject to the Court’s jurisdiction, including those disputes featuring entities of public authority in Organstreit proceedings or abstract judicial review proceedings. Article 32 of the fcca provides that “[i]n a dispute the Federal Constitutional Court may deal with a matter provisionally by means of a temporary injunction if this is urgently needed to avert serious detriment, ward off imminent force or for any other important reason for the common weal.” The Court applies a strict standard and usually exercises considerable reserve when confronted with requests for temporary injunctions. The requisite urgency exists only if the Court cannot act on the underlying substantive dispute in time to avoid detriment. The alleged harm will not be regarded as “serious,” the Court has said, if it is slight, temporary, correctable, or compensable. In deciding whether to issue a temporary injunction the Court invokes the so-called double hypothesis in a “weighing model.” In principle, wholly blind to the possible outcome of the underlying substantive constitutional dispute, the Court weighs two concerns: 1) the harm that would result if no injunction is issued but the challenged measures are later declared unconstitutional in the underlying substantive proceeding; and 2) the harm that would result if an injunction is issued but the challenged measures are later found to be constitutional in the underlying substantive proceeding.53 The factors to be weighed, however, obviously require the Court to  give some consideration to the possible outcome in the underlying substantive constitutional dispute. For this reason it should not be surprising that, despite the Court’s repeated insistence to the contrary, its decision on an application for a temporary injunction very frequently is indicative of the outcome in the underlying substantive constitutional matter. Disputes between High Federal Organs. Confl icts known as Organstreit proceedings involve constitutional disputes between the highest “organs” or branches of the Federal Republic. The Court’s function here is to supervise the operation and internal procedures of these executive and legislative organs and to maintain the proper institutional balance between them.54 The governmental organs qualified to bring cases under this jurisdiction are the federal president, Bundesrat, federal govern-

The Feder al Constitutional Court 15

ment, Bundestag, and units of these organs vested with independent rights by their rules of procedure or the Basic Law.55 Included among these entities are individual members of Parliament, any one of whom may initiate an Organstreit proceeding to vindicate his or her status as a parliamentary representative.56 The parliamentary party blocs (Fraktionen) also may avail themselves of the Court’s Organstreit jurisdiction.57 Early on, the Court’s plenum ruled that even nonparliamentary political parties may invoke this jurisdiction.58 They may do so in their capacity as agencies that attract votes during elections or organizers of the electoral process because, in fulfi lling these tasks, political parties function as “constitutional” or federal organs within the meaning of the Basic Law (Article 93 (1) [1]).59 If a political party is denied a place on the ballot, or if its right to mount electoral activity is infringed by one of the high organs of the Federal Republic, it can initiate an Organstreit proceeding against the federal organ in question. An Organstreit proceeding is not available, however, to administrative agencies, governmental corporations, churches, or other corporate bodies with quasi-public status.60 Abstract Judicial Review. Whereas the U.S. Supreme Court requires a real controversy and adverse parties in order to decide a constitutional question, the Federal Constitutional Court may decide differences of opinion or doubts about a federal or state law’s compatibility with the Basic Law on the mere request of the federal or a state government or of one-fourth of the members of the Bundestag.61 Oral argument before the Court, a rarity in most cases, is always permitted in abstract review proceedings. The question of the law’s validity is squarely before the Court in these proceedings and a decision against validity renders the law null and void.62 When deciding cases on abstract review, the Court is said to be engaged in the “objective” determination of the validity or invalidity of a legal norm or statute.63 The proceeding is described as objective because it is intended to vindicate neither an individual’s subjective right nor the claim of the official entity petitioning for review; the sole purpose of abstract review is to determine what the constitution means. In so doing, the Court is free to consider any and every argument and any and every fact bearing on any and every aspect of a statute or legal norm under examination. Indeed, once the federal government, a Land government, or one-fourth of the Bundestag’s members place a statute or legal norm before the Court on abstract review, the case cannot be withdrawn without the Court’s permission, a condition that reinforces the principle of judicial independence, which in turn allows the Court to speak in the public interest when necessity demands it. Federal-State Confl icts. Constitutional disputes between a Land and the federation (Bund, which consists of the national sovereign as opposed to the state sovereigns) ordinarily arise out of confl icts involving a Land’s administration of federal law or the federal government’s supervision of Land administration. Proceedings may be brought only by a Land government or by the federal government. In addition, the Court may hear “other public law disputes” between the federation and the Länder,

16 chapter one

between different states, or within a state if no other legal recourse is provided. Here again, only the respective governments in question are authorized to bring such suits. As in Organstreit proceedings, the complaining party must assert that the act or omission complained of has resulted in a direct infringement of a right or duty assigned by the Basic Law. For its part, the Constitutional Court is obligated by law to declare whether the act or omission infringes the Basic Law and to specify the provision violated. In the process of deciding such a case the Court “may also decide a point of law relevant to the interpretation of the [applicable] provision of the Basic Law.” 64 Prohibiting Political Parties. The Federal Constitutional Court’s function as guardian of the constitutional order fi nds its most vivid expression in Article 21 (2) of the Basic Law. Under this provision, political parties seeking “to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional.” The article goes on to declare that only the Federal Constitutional Court may declare parties unconstitutional. To minimize any abuse of this provision, the fcca authorizes only the Bundestag, the Bundesrat, and the federal government (Bundesregierung; i.e., the chancellor and his or her cabinet) to initiate an Article 21 action against a party. A Land government may apply to have a party declared unconstitutional if that party’s organization is confi ned to the applicant’s territory. Th is jurisdiction, as with most of the other proceedings before the Court, is compulsory. Unless the moving party withdraws its petition, the Court is obligated to decide the case, even if it takes its time in doing so. As Table 1 indicates, the Court has received only eight such petitions and decided five. In two of the cases, decided early on, the Court sustained the petitions: in 1952 when it banned the neo-Nazi Socialist Reich Party (srp), and in 1956 when it ruled the Communist Party of Germany (kpd) unconstitutional.65 In 1994 the Court rejected the petitions of the Bundesrat and the federal government to have the Free German Workers Party (Freiheitliche Deutsche Arbeiterpartei; hereafter referred to as the fap) declared unconstitutional as well as Hamburg’s petition to ban the National List (hereafter referred to as the nl) from operating in its territory. The Court ruled that although the fap and the nl advanced views hostile to political democracy, neither group qualified as a political party within the meaning of the law or the constitution.66 In 2003 the petitions of the Bundestag, Bundesrat, and federal government, seeking a ban of the far-right National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands; hereafter referred to as the npd), were dismissed because of the extensive, covert involvement of government security agents in the leadership of the party.

The Feder al Constitutional Court 17

institution Status. When the Constitutional Court opened its doors for business in Karlsruhe on 28 September 1951, its status within the governmental framework of separated powers, and even its relationship to the other federal courts, remained an unsettled issue. The Basic Law itself was ambivalent on the matter of the Court’s status. On the one hand, the wide-ranging powers of the Court laid down in the Basic Law and the fcca pointed to a tribunal commensurate in status with the other independent constitutional organs (Bundesrat, Bundestag, federal president, and federal government) created by the constitution. On the other hand, the Basic Law authorized Parliament to regulate the Court’s organization and procedure. Initially, the new tribunal was placed under the authority of the Federal Ministry of Justice, a situation that irritated several justices, including the Court’s fi rst president, Hermann Höpker-Aschoff. As a consequence, the justices boldly set out, in their fi rst year of operation, to defend the Court’s autonomy, foreshadowing the fierce independence they would later exercise in adjudicating constitutional disputes.67 On 27 June 1952, after months of planning, the Court released a memorandum originally drafted by Justice Gerhard Leibholz, one of its most renowned and respected members, that called for an end to any supervisory authority by the Ministry of Justice, complete budgetary autonomy, and the Court’s full control over its internal administration, including the power to appoint its own officials and law clerks. The memorandum concluded that the Federal Constitutional Court is a supreme constitutional organ that is coordinate in rank with the Bundestag, Bundesrat, federal chancellor, and federal president. Its members, then, are in no sense civil servants or ordinary federal judges but rather supreme guardians of the Basic Law entrusted with the execution of its grand purposes, no less than other high constitutional organs of the Federal Republic of Germany. Indeed, the memorandum continued, the Court has the even greater duty to ensure that other constitutional organs observe the limits of the Basic Law.68 The memorandum from Karlsruhe generated a strong tremor in Bonn, the capital of West Germany during the years when Germany was divided between the western Federal Republic and the eastern German Democratic Republic; it startled the government, angered the Ministry of Justice, and set off several years of skirmishing that yielded alignments almost identical to those that had formed in the early stages of the parliamentary debate on the structure of the proposed tribunal. Social Democrats and the Bundesrat generally supported the justices’ demands, while the cdu and its coalition parties in the Bundestag generally opposed them. The real tangle, however, was between the Ministry of Justice and the Constitutional Court, and it featured an occasional unseemly public exchange between two members of the liberal Free Democratic Party (fdp) who, as members of the Parliamentary Council, had played major roles in drafting the Basic Law. The two figures were Thomas Dehler, federal minister of justice, and Justice Hermann Höpker-Aschoff, the stately and highly respected president or “chief justice”69 of the Federal Constitutional Court.

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In 1953 the Bundestag severed the Court’s ties to the Ministry of Justice, and by 1960, with the gradual growth of the Court’s prestige and influence, all of the “demands” articulated in the Leibholz memorandum had been met.70 In Germany’s official ranking order, the Court’s president now enjoys the fi ft h-highest position in the Federal Republic, following the federal president, the federal chancellor, and the presidents of the two legislative organs (Bundestag and Bundesrat). As “supreme guardians of the constitution” the remaining justices follow behind. Eventually the justices of the Federal Constitutional Court were exempted from the disciplinary code regulating all other German judges.71 The Court’s hard-won constitutional status was best symbolized by a 1968 amendment to the Basic Law providing that the “function of the Federal Constitutional Court and its justices must not be impaired” even in a state of emergency. During such a time, the special body responsible for acting on behalf of the Bundestag and the Bundesrat is barred from amending the fcca unless such an amendment is required, “in the opinion of the Federal Constitutional Court, to maintain the Court’s ability to function.”72 Two-Senate Structure. The most important structural feature of the Constitutional Court is its division into two senates with mutually exclusive jurisdiction and personnel.73 Justices are elected to either the First or Second Senate, with the Court’s president presiding over one senate and the Court’s vice president presiding over the other. Both “chief justices” are wholly independent with respect to judicial matters before their respective senates. Finally, each senate is equipped with its own administrative office for the organization and distribution of its workload. The twin-senate idea was a compromise between legislators who preferred a fluid system of twenty-four justices rotating on smaller panels and those who preferred a fi xed body like that of the U.S. Supreme Court. More important, the bifurcation was the institutional expression of the old debate between those who viewed the Court in conventional legal terms and those who saw it in political terms. The original division of jurisdiction showed that the senates were intended to fulfi ll very different functions. The Second Senate was designed to function much like Weimar’s State High Court; it would decide political disputes between branches and levels of government, settle contested elections, rule on the constitutionality of political parties,74 preside over impeachment proceedings, and decide abstract questions of constitutional law. The First Senate was vested with the authority to review the constitutionality of laws and to resolve constitutional doubts arising out of ordinary litigation. More concerned with the “nonpolitical” side of the Court’s docket and the “objective” process of constitutional interpretation, the First Senate would hear the constitutional complaints of ordinary citizens as well as referrals from other courts. As already noted, an ordinary court that seriously doubts the constitutionality of a statute under which an actual case arises is obliged, before deciding the case, to refer the constitutional issue to the Constitutional Court for its decision.75 Th is division of labor resulted initially in a huge imbalance between the workloads of the two panels. The Second Senate decided only a handful of political cases, while

The Feder al Constitutional Court 19

the First Senate found itself flooded with constitutional complaints and concrete review cases. As a consequence, the Bundestag amended the fcca in 1956 to distribute the caseload more evenly between the senates. Much of the First Senate’s work was transferred to the Second Senate, thus eroding the original rationale of the two-senate system. The Second Senate, while retaining its “political” docket, would henceforth decide all constitutional complaints and concrete judicial review cases dealing with issues of civil and criminal procedure. The First Senate would continue to decide all such cases involving issues of substantive law. In addition, the plenum—the two senates sitting together—was authorized by law to reallocate jurisdiction in a manner that would maintain relatively equal caseloads between the senates.76 The number of justices serving on the two senates has also changed over the years. The fcca originally provided for twelve members per senate. In 1956 the number was reduced to ten; in 1962 it was further reduced to eight, fi xing the Court’s total membership at sixteen (see Appendix A).77 Considerations of efficiency, coupled with the politics of judicial recruitment,78 prompted these reductions. For all practical purposes, then, the Constitutional Court comprises two independent tribunals, although each functions in the name of the Court as a whole. Since the 1980s, however, the Bundestag has modified the ironclad rule against any intersenate ser vice by justices in two ways. First, if one senate is unable to convene because of the incapacity or unavailability of one or more of its justices—a quorum consists of six justices—a justice from the other senate may be chosen by lot to serve temporarily in the understaffed senate. The presiding justices of the two senates (the Court’s president and vice president) are excluded from serving in this substitute capacity.79 Second, upon the disqualification of a justice from participating in a particular case—even if such disqualification does not destroy the respective senate’s quorum—a replacement justice is to be chosen by lot from the other senate.80 The two senates are thoroughly independent of one another. Each senate is the Federal Constitutional Court.81 Yet this strict separation has administrative and doctrinal limits. All sixteen of the Court’s justices periodically convene as the plenum to address administrative matters relevant to the Court as a whole. The plenum, for example, issues rules on the Court’s procedure and judicial administration.82 The plenum, as noted earlier, also fairly allocates the senates’ jurisdictional assignments in order to avoid an imbalanced docket.83 As regards constitutional doctrine, the senates frequently have developed distinct approaches to common questions. But only the plenum can decide a case in the event that one senate seeks to deviate from the “legal opinion contained in a decision of the other senate.”84 Resort to the plenum in these circumstances is a matter to be decided by the senate that was originally responsible for the case, that is, the senate that wants to disregard the other senate’s jurisprudence. Nevertheless, the opposite senate decides whether its existing jurisprudence has, in fact, been implicated. It would seem, based on these rules, that one senate can compel the other to call for the plenum’s intervention.85 But the senates jealously guard against such meddling. In the Unwanted Child Case (1997; no. 4.3), for instance, the First Senate refused to heed the Second Senate’s call for the

20 chapter one

plenum by arguing that resort to the plenum is necessary only if an intentional departure from a decisive facet of the other senate’s reasoning in a similar case is implicated. The First Senate explained that a senate’s “legal opinion” is decisive if retracting it would undermine the concrete holding of the case.86 In a rare public display of tension at the Court, the Second Senate published an accompanying order objecting to the First Senate’s assertion of this very narrow standard and its conclusion that the standard had not been met in the case at hand.87 Intrasenate Chamber System. To speed up the Court’s decision-making process and ease the burden of an increasing number of cases, the internal structure of the two senates was changed in 1956 by authorizing each senate to set up three or more preliminary examining committees, each consisting of three justices, to fi lter out frivolous constitutional complaints.88 Th is was made necessary by the fact that, except under distinct circumstances, the fcca obliges the Court to admit all constitutional complaints for decision.89 As a consequence of this reform, at the beginning of each business year the senates established committees, limited however by the rule that no three justices could serve together on the same committee for more than three years.90 The Court’s president and vice president served as chairs of the respective committees to which they were assigned, as did the senior justice on each of the remaining committees. A committee could dismiss a complaint if all three of its members considered it to be “inadmissible or to offer no prospect of success for other reasons.”91 Under current procedure, if one of the three justices votes to accept a complaint—that is, if he or she thinks it has some chance of success—it is forwarded to the full senate for ordinary consideration of its admissibility.92 At this second stage, the “rule of three” controls; if at least three justices in the full senate are convinced that the complaint raises a question of constitutional law likely to be clarified by a judicial decision, or that the complainant will suffer serious harm in the absence of a decision, the complaint will be accepted for review.93 Thereafter, and on the basis of more detailed examination, a senate majority could still reject the complaint as inadmissible or trivial.94 In 1986, on the Constitutional Court’s recommendation, the Bundestag enhanced the power of the three-justice committees and renamed them chambers (Kammern). In addition to the normal screening function they had been performing, the threejustice chambers are now empowered to rule on the merits of a constitutional complaint if all three justices agree with the result and the decision clearly lies within standards already laid down in a case decided by the full senate.95 The authority to declare a statute unconstitutional or in confl ict with federal law is still reserved to the full senate.96 A chamber is not required to fi le a formal opinion justifying its refusal to accept a complaint for a decision on the merits.97 As a matter of practice, however, whether deciding a complaint on the merits or on the question of admissibility (Zulässigkeit), a chamber often accompanies its decision with an opinion that can be as short as one page and as long as several pages. Most of these decisions remain unpublished, and they are cata logued in the Court’s fi les for internal use and reference. In the past, on rare occasions and in consultation with the full senate, chamber

The Feder al Constitutional Court 21

decisions were published in the Court’s official reports. Other chamber opinions that served to clarify points of law laid down in previous cases or that were likely to command public attention might be released for publication in major legal periodicals such as the Neue Juristische Wochenschrift and the Juristenzeitung.98 In the last decade the chamber process has benefited from greater transparency. Since 1999 most chamber decisions are available at the Court’s website and, since 2003, the Court has published a limited and perhaps necessarily eclectic selection of chamber decisions in a new set of official reports. As yet another mechanism for easing the Court’s overwhelming caseload, the fcca authorizes the Court to fi ne petitioners who “abuse” the constitutional complaint procedure. Currently the Court may level a fi ne of up to € 2,600 on abusers, but it rarely does so.99 In 1986 the chambers were given the additional authority to impose a fee on any petitioner whose complaint they refused to accept because it was either clearly inadmissible or wholly unlikely to succeed. Th is practice, however, failed to decrease the number of complaints arriving at the Court, and it was eventually abandoned. By separating the wheat from the chaff, the chambers dispose of more than 95 percent of all constitutional complaints, relieving the full senates of what would otherwise be an impossible task. As useful as the chamber review system is for helping control the Court’s docket, it is not without problems. It has been the subject of several constitutional challenges, the complainant having argued in each case that a chamber’s dismissal of his or her complaint constituted a denial of the right to “the jurisdiction of his lawful judge” under Article 101 (1) [2] of the Basic Law. Since the Basic Law provides for one Constitutional Court, argued the complainants, the full senate is constitutionally required to decide every case. In the three Three-Justice Committee cases100 involving decisions by both senates, the Court ruled against the complainants on the basis of its original statutory authority to establish internal committees. In one instance, seemingly piqued by the audacity of the complainant who challenged its decision-making procedures, the Second Senate slapped a nominal fi ne on the complainant for “abusing the constitutional complaint procedure.”101 These decisions, all rendered before the right to fi le a constitutional complaint was entrenched in the Basic Law, underscored the fi nality of committee decisions unanimously rejecting complaints. In short, if a complaint is unanimously rejected, no “appeal” lay to the full senate, its sister senate, or the plenum. The constitutionalization of the complaint procedure in 1969 appeared to erode the foundation of the Three-Justice Committee cases. In recent years, however, no challenge has been hurled against the chamber system on constitutional grounds, “and in any event it is rather hard to imagine the Court undermining its own protective ramparts.”102 Other problems shadow the chamber review system. There is the chance that different standards may exist from one chamber to the next, undermining the uniformity of the Court’s jurisprudence. There has also been criticism of the quality of the chamber decisions and expressions of concern that the chambers have informally replaced the senates.103 Finally, there is some reason to wonder if the flexibility and opacity of the

22 chapter one

chamber system has led to the informal establishment of discretionary review at the Court, opening the possibility for the strategic development of jurisprudence and the erosion of subjective rights guarantees, both of which the fcca sought to avoid.104 Despite these concerns, it is clear that some form of gatekeeping procedure involving less than full senate review is necessary as a practical matter if the Court is to cope with a system that “entitles [anyone] to complain to it about virtually anything.”105 Qualifications and Tenure. To qualify for a seat on the Constitutional Court, persons must be forty years of age, be eligible for election to the Bundestag, and possess the qualifications for judicial office specified in the German Judiciary Act (Deutsches Richtergesetz). Th is means that prospective justices must have normally passed the fi rst and second major state bar examinations. Additionally, justices may not simultaneously hold office in the legislative or executive branch of the federal or a state government. Finally, the fcca provides that the “functions of a justice shall preclude any other professional occupation except that of a professor of law at a German institution of higher education” and that the justice’s judicial functions must take precedence over any and all professorial duties.106 The fcca originally provided lifetime terms for the justices of each senate who had been selected from the federal courts. The other members of the Court—justices not required to be chosen from the federal courts—were limited to renewable eightyear terms of office. The recruitment of a certain number of judges from the federal courts for the duration of their terms on those courts was expected to bring judicial experience and continuity to the Constitutional Court’s work. Parliament amended the fcca in 1970, however, to provide for single twelve-year terms for all justices, with no possibility of reelection.107 Th ree of the eight justices serving in each senate must, as before, be elected from the federal judiciary. All justices on the Constitutional Court—federal judges and other members—must retire at age sixty-eight, even if they have not yet completed their twelve-year term. The debate on judicial tenure prior to the 1970 change in the law was entangled with the question of whether justices should be authorized to publish dissenting opinions.108 As early as 1968, lawmakers, supported by a majority of the justices, seemed prepared to sanction signed dissenting opinions. But the feeling was widespread that the justices could not be expected to speak their minds if their tenure depended on the continuing pleasure of the Bundestag or Bundesrat. The justices themselves favored lifetime appointments. The government in turn responded with a bill that provided for both dissenting opinions and a twelve-year term with the possibility of reelection for a single second term of twelve years. Social Democrats, however, insisted on a single fi xed term of twelve years, conditioning their support of the dissenting opinion largely on the acceptance of this proposal. The question was not hotly contested among the political parties. A single twelve-year term, combined with the dissenting opinion, was generally thought to be an adequate solution to both the problem of judicial independence and the need for a greater measure of judicial openness on the Constitutional Court.109

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Machinery of Judicial Selection. The Basic Law provides that half the Court’s members be elected by the Bundestag and half by the Bundesrat. The participation of the Bundestag in the selection of the Court’s justices underscores the significant role the Court plays in reviewing the content and procedural integrity of the decisions of the popularly elected Parliament. It seemed appropriate then that the Bundestag should play a major role in the Court’s staffi ng.110 Similarly, the Bundesrat’s participation in the judicial selection process was meant to ensure that the Länder would have an equally significant voice on the Court.111 Several of the Basic Law’s framers assumed that preserving German federalism against centralizing tendencies would be the chief, if not exclusive, function of the Court.112 The Bundestag elects eight justices indirectly through a twelve-person Judicial Selection Committee (Wahlmännerausschuss). Party representation on the Judicial Selection Committee is proportionate to each party’s strength in the Bundestag; eight votes—a two-thirds supermajority—are required to elect.113 The Bundesrat votes as a whole for its eight justices, a two-thirds vote also being required to elect.114 Although each legislative organ elects four members of each senate, the fcca stipulates that, of the three justices in each senate “selected from among the judges of the highest federal courts, one shall be elected by one [house] and two by the other, and of the remaining five justices, three shall be elected by one [house] and two by the other.”115 Which house elects each combination is a matter of informal agreement. The Bundestag and Bundesrat alternate in selecting the Court’s president and vice president (the Bundestag was authorized to elect the fi rst president and the Bundesrat the fi rst vice president). Prior to the selection process the minister of justice is required to compile a list of all the federal judges who meet the qualifications for appointment, as well as a list of the candidates submitted by the parliamentary parties, the federal government, or a state government. The minister delivers these lists at least one week before the Bundestag’s Judicial Selection Committee or the full Bundesrat convene on the question of appointments to the Court. If either house fails to elect a new justice within two months of the expiration of a sitting justice’s term, the chair of the Judicial Selection Committee—the oldest member of the committee—or the president of the Bundesrat (depending on which legislative organ is electing a new justice) asks the Constitutional Court itself to propose a list of three candidates; if several justices are to be elected simultaneously, the Court is required to “propose twice as many candidates as the number of justices to be elected.”116 The plenum selects the list by a simple majority vote. There is, however, no obligation on the part of the Judicial Selection Committee or the Bundesrat to choose the appointee from this or any other list. The process of judicial selection is highly politicized. The Judicial Selection Committee, which consists of senior party officials and the top legal experts of each parliamentary party, conducts its proceedings behind closed doors and after extensive consultation with the Bundesrat.117 Although the parliamentary parties may not legally instruct their representatives on the Judicial Selection Committee how to vote,

24 chapter one

committee members do in fact speak for the leaders of their respective parties. The two-thirds majority required to elect a justice endows opposition parties in the Judicial Selection Committee with considerable leverage over appointments to the Constitutional Court. Germany’s two main parties, the Social Democrats and the Christian Democrats, are in a position to veto each other’s judicial nominees. The Free Democratic Party and the Green Party, traditionally smaller political blocs in the Parliament, also have won seats on the Court for their nominees. Compromise is a practical necessity in any case. Compromise among contending interests and candidacies is equally necessary in the Bundesrat, where the interests of the various states, often independent of party affi liation, play a paramount role in the selection of the justices. An advisory commission consisting of the state justice ministers prepares a short list of potentially electable nominees. The justice ministers on the commission, like certain state governors (minister-presidents) and members of the Bundestag’s Judicial Selection Committee, often are themselves leading candidates for seats on the Constitutional Court. Informal agreements emerge from the commission’s proceedings, specifying which states shall choose prospective justices and in what order. Th roughout this process the commission coordinates its work with the Bundestag’s Judicial Selection Committee. It is important to avoid duplicate judicial selections, and the two chambers need to agree on the par ticu lar senate seats each is going to fi ll and which of these seats are to be fi lled with justices recruited from the federal courts.118 While the process for the selection of Federal Constitutional Court justices lacks the transparency of the process by which justices are seated on the U.S. Supreme Court, the spirit of compromise and cooperation that prevails in Germany has, thus far, avoided the sensationalism, scandal, and personalization that sometimes seem to dominate U.S. Supreme Court appointments.119 Of course, lifelong tenure combines with the principle of stare decisis to raise, imperceptibly, the stakes in the U.S. appointment process. For all its opacity, the German process, largely as a consequence of the supermajority required for election, nonetheless has consistently produced a Constitutional Court that is reflective of Germany’s most prominent political parties, regional divisions, and confessions.120 In one respect, however, the Court has been less than representative of German society. The presidency of Jutta Limbach (1994–2002), the fi rst woman to hold the position, draws attention to the fact that the Court continues to be dominated by men. In 1951 the remarkable Erna Scheffler, who participated in the Parliamentary Council, was appointed as one of the Court’s fi rst justices. In the subsequent sixty-one years, during which more than one hundred jurists have donned the Court’s red robes and caps, only thirteen other women have found their way to Karlsruhe. In 2011 only five of the Court’s sixteen justices were women.

The Feder al Constitutional Court 25

pro cess Internal Administration. The Federal Constitutional Court achieved a major victory when it won the authority early on to administer its own internal affairs. Administrative autonomy had two notable consequences for the Court’s institutional development. First, armed with the power to prepare its own budget in direct consultation with Parliament and the Ministry of Finance, the Court was able to plan its own future. In 1964 it even won approval for an ultramodern building designed by architects and engineers of its own choosing. Second, the administrative authority of the Court’s president was substantially enlarged. While only primus inter pares in the judicial conference room, he or she is primus on all other matters of internal administration, a situation that once aggravated relations between the president and several associate justices. In 1975, after years of discord between the Court’s president and individual justices over their respective duties and powers, the Court’s plenum enacted a set of standing rules of procedure governing the Court’s internal operations that has been revised several times since.121 The rules charge the plenum, over which the Court’s president presides, with preparing the budget, deciding all questions pertaining to the justices’ duties, and formulating general principles of judicial administration. They authorize the plenum to establish several standing committees for the purpose of recommending policies dealing with matters such as record-keeping, budgetary policy, personnel administration, and library administration. The rules require the president to carry out these policies and to represent the Court in its official relations with other government agencies and on ceremonial occasions. Overall judicial administration is the responsibility of the Constitutional Court’s director, the highest administrative official at the Court. The director, like the justices themselves, must be a lawyer qualified for judicial office. Indeed, one previous director, Walter Rudi Wand, was elected to the Second Senate in 1970. Finally, each justice is entitled to four legal assistants of his or her own choosing. Legal assistants are not recent law school graduates like the law clerks that assist judges and justices in the United States. They have usually already embarked on legal careers as judges, civil servants, or professors of law. Most serve for two or three years, although some legal assistants have stayed on for longer periods.122 Decision-Making Procedure. The fcca and the Constitutional Court’s Rules of Procedure (Geschäftsordnung des Bundesverfassungsgerichts) set forth each senate’s internal practices and procedures. For its part, the fcca includes general and special provisions governing each category of jurisdiction. The Rules of Procedure deal with 1) conditions under which a justice may be excluded from a case; 2) procedures to be followed in various types of cases; 3) rights of the parties involved in litigation before the Court, including the qualifications of those legally entitled to represent them; 4) obligations of public officials and judges to cooperate with the Court in disposing

26 chapter one

of certain cases; 5) special rules accompanying the issuance of temporary orders; and 6) the manner in which decisions are made and announced.123 The procedures on judicial removal require justices to recuse themselves from a case if they are related to one of the parties or have a personal interest in its outcome.124 Recusal, however, is beyond the justices’ personal discretion. Whether a justice initiates the recusal or resists a formal challenge of bias by one of the parties, the senate decides the matter in the justice’s absence. A decision denying or upholding a voluntary recusal or a challenge to a justice’s refusal to withdraw from a case must be supported in writing and included among the Court’s published opinions.125 A justice who wishes not to be recused in the face of a recusal motion must provide the senate with a formal statement in defense of his or her involvement in the case. The statement is included in the senate’s formal opinion on the recusal. The critical issue in such cases is not whether the justice in question is in fact biased, but whether a party to the case has a sufficient reason for believing that the justice may be incapable of making an impartial judgment. These procedures have been invoked only rarely to exclude justices from participating in the decision of a case.126 The Constitutional Court’s deliberations are secret, and the justices render their decisions on the basis of the official record. The rules require that each senate decision be justified by official opinions signed by all participating justices.127 Recording the justices’ participation is vastly different from confi rming their unanimity; the fcca grants the senates the discretion to disclose or withhold information about the number of votes for or against the fi nal decision. Oral arguments are the exception; they are limited to cases of major political importance. In 2011 the Court held only seven oral arguments.128 A decision handed down on the basis of an oral proceeding is known as a judgment (Urteil); a decision handed down in the absence of oral argument is labeled an order or ruling (Beschluss). The distinction seems to be little more than a formality, for all state authorities are bound by all of the Court’s decisions. An oral argument leading to an Urteil obviously gives a case a more prominent public profi le but a Beschluss is no less important or enforceable. All decisions having the force of general law—for example, most abstract and concrete judicial review cases— must be published in the Federal Law Gazette,129 along with all parliamentary resolutions and laws. Case Assignment. Specialization is a major feature of the judicial process within the Federal Constitutional Court. As noted earlier, each senate has a specified jurisdiction. Once incoming cases have been processed in the Office of the Director, they are channeled to the appropriate senate and then passed on to the various justices according to their areas of expertise.130 Before the start of the business year, each senate establishes the ground rules for the assignment of cases. By mutual agreement, and in consultation with his or her senate’s presiding justice, each justice serves as the rapporteur (Berichterstatter) in par tic u lar cases. The ground rules for the assignment of cases are designed to take into account the justices’ interests and expertise. For example, it is typical that at least one justice of the Second Senate has a background

The Feder al Constitutional Court 27

in international law and European Union law. He or she serves as the rapporteur in cases involving international legal issues and, most prominently, Germany’s participation in supranational organizations like the European Union (eu) and international organizations like the North Atlantic Treaty Organization (nato). Another justice might take charge of cases involving tax and social security law, while still another might be assigned cases dealing with issues arising from family law. Despite this acknowledg ment of par ticu lar justices’ expertise in the assignment of cases, occasionally justices serve as rapporteurs in cases outside their specialties. The rapporteur’s job is to prepare a written document known as the Votum, the creation of which is a crucial stage in the decisional process. Aided by legal assistants, the rapporteur prepares what amounts to a major research report. The Votum describes the background and facts of the dispute, surveys the Court’s previous decisions and the legal literature, presents fully documented arguments advanced on both sides of the question, and concludes with a personal view of how the case should be decided. A Votum, which may be well over a hundred pages long, can take weeks, even months, to prepare; often it forms the basis of the fi rst draft of the Court’s fi nal opinion.131 In any calendar year each justice prepares several major Voten, studies thirty to forty others authored by other justices, draft s shorter reports (Kurzvoten)—up to four hundred per year—for the two other justices serving on a par ticu lar three-justice chamber, writes the opinion in those cases over which he or she presides as rapporteur, and prepares for the weekly conferences. Oral Argument. As already noted, formal hearings before the Court are rare, except in Organstreit and abstract judicial review cases, in which oral argument is mandatory unless waived by the major organs or entities of government bringing these cases. The rapporteur, who by this time has completed his or her Votum, usually dominates the questioning. The main function of the oral argument is less to refi ne legal issues than to uncover, if possible, additional facts bearing on them. For this reason the Court may hear from fact experts during the oral argument in order “to establish the truth,”132 as well as from the lawyers, law professors, or public officials formally advocating for the parties. The public hearing also adds legitimacy to the decision-making process in cases of major political importance, particularly when minority political parties allege that the established parties have treated them unconstitutionally. The generous time allotted to oral proceedings—a full day, or more in exceptional cases—and the Court’s readiness to hear the full gamut of argumentation on both sides of a disputed question are intended to generate goodwill and convey a sense of fairness and openness to winners and losers alike. In spite of this genuine commitment to transparency, openness, and inclusion, the Court’s oral arguments cannot be taped or broadcast. The Court has upheld this rule over constitutional free speech and media freedom challenges with respect to all German courts.133 The only exception to this rule is that the media are allowed to broadcast the fi rst, dramatic moments of the Court’s public proceedings when the justices take the bench in their resplendent red robes and caps, up to the moments just after the

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presiding justice formally opens the proceedings by announcing the fi le number and briefly introduces the case at hand. Conference. The presiding justice of each senate schedules weekly conferences to decide cases and dispose of other judicial business. Except for August and September, when the Court is not in session, conference sessions are normally held every Tuesday, frequently spilling over into Wednesday and Thursday. Voten and draft opinions of cases already decided dominate the agenda. In considering a Votum, the presiding justice calls on the rapporteur to summarize the case and justify the recommended solution. The rapporteur’s role is crucial here, for a carefully drafted and well-organized Votum usually carries the day in conference. In addition, the pressure of time often prompts justices to defer to the rapporteur’s expertise and judgment.134 Still, the rapporteur has to win the consent of his or her colleagues. It is the rapporteur’s responsibility, along with that of the “chief justice,” to marshal a majority or fi nd a broad basis of agreement. In this process skill and personality are important. A successful rapporteur solicits the views of colleagues and negotiates artfully in order to prevail in conference. Justices who lack these gift s or the full confidence of their colleagues are unlikely to see their views command the resolution of cases. If, on the other hand, the rapporteur is in the minority—and even the most influential justices occasionally fi nd themselves in this position—he or she does not necessarily lose all influence over the case; the rapporteur still has the task of writing the Court’s opinion. If the rapporteur combines political sagacity with a deft literary hand, it is possible to leave a distinct imprint on the fi nished product. A rapporteur who plans to memorialize his or her strong dissenting views in a dissenting opinion may request that the writing of the opinion be assigned to another justice, but this rarely happens.135 If the rapporteur understands the requisites of judicial statesmanship, he or she will draft an opinion broadly reflective of a wide common denominator of agreement, often representing a compromise among confl icting constitutional arguments.136 The production of such opinions—that is, opinions that reduce discord on the bench and preserve the Court’s moral authority in the public mind—is likely to be a function of the presiding justice’s capacity for leadership. The presiding justice’s task is to guide discussion, frame the questions to which there is to be a vote, and marshal the largest majority possible behind judicial decisions. Th is leadership is particularly important in the sessions in which opinions undergo fi nal and often meticulous editing. The well-settled tradition of the Court is to speak as an institution and not as a panel of individual justices. There is a significant expectation of collegiality and consensus on the Court, much as in German society generally. Thus, despite the introduction of signed dissenting opinions in 1970, the Court continues to unanimously decide more than 90 percent of its reported cases. Although the fcca requires the disclosure of the identities of the justices participating in every case, authorial

The Feder al Constitutional Court 29

responsibility for unanimous and even majority opinions remains undisclosed. In the rare instances where the Court’s institutional unanimity fractures, the Court is not required to identify which justices voted with the majority and which voted with the minority. Only the publication of a signed dissenting opinion, an even rarer departure from the Court’s prized institutional unanimity, might provide formal insight into the Court’s voting constellations. In spite of these measures, which strive to depersonalize the work of the justices, it is common knowledge among informed observers that the rapporteur in a unanimous decision is the principal author of the fi nal opinion. The institutional bias against personalized judicial opinions has tended to minimize published dissents. Since 1971, when they were fi rst allowed, through the end of 2011, there have been only 146 published dissents.137 Dissenting justices—even if they have circulated written dissents inside the Court—usually choose not to publish them or to be identified as dissenters, at least partly out of a sense of institutional loyalty. The prevailing norm seems to be that personalized dissenting opinions are proper only when prompted by deep personal convictions. As one commentator remarked, “In their justification, style and intent, dissenting opinions are a departure from the Court’s unanimity. . . . [T]hey can draw attention to the dissenting justice as a public figure, who may dissent in order to highlight his or her ethical or jurisprudential differences with the majority. . . . Such dissenting opinions can endanger the Court’s majority opinion.”138 Despite such concerns, there are signs that the Court’s deeply rooted culture of collegiality and consensus may be changing. After a burst of dissenting opinions from the Court in the years immediately following German reunification (thirteen published dissents in 1994 and 1995), the Court seemed to return to its practice of relative unanimity (six published dissents between 1996 and 2001). Since 2001 the number of published dissents has again increased, to a steady rate of about three per year. There is also increasing concern about the public, and often intensely political, profi le some sitting and retired justices have achieved. In 1994 the Court’s president, Roman Herzog, led a successful campaign for the federal presidency, to which the Court raised no objection.139 Two more recent examples may suggest a strengthening trend. On the one hand, retired Justice Paul Kirchhof played a sensational role with a brief per for mance as the “fi nance minister” in Angela Merkel’s shadow cabinet during her 2006 campaign as the Christian Democratic candidate for the chancellorship. On the other hand, the dynamic Justice Udo Di Fabio drew attention for his respected but atypically outspoken scholarship and social commentary. Caseload and Impact. Table 1 presents an overview of the Court’s workload during its fi rst six decades. These statistics, however, do not tell the full story of the business before the Court or its function in the German polity. In a given calendar year the Court receives eight to ten thousand letters, notes, or communications from individuals claiming to be unconstitutionally affected by German authorities. When these poorly articulated “constitutional complaints” are obviously inadmissible or

30 chapter one

hopelessly trivial, they are provisionally assigned to the Court’s General Register’s Office, which reviews the submissions and responds on behalf of the Court with an explanation of the legal nature of the matter that was the subject of the submission and, in light of this clarification, the General Register’s view on whether a judicial decision is at all necessary or appropriate.140 Of course, if the General Register’s Office fi nds that a judicial treatment of the submission is necessary, the case is lodged for review in the ordinary admissibility process of the appropriate senate. If, in response to the General Register’s clarification, the petitioner writes back demanding to be heard, his or her submission is lodged with one of the senates.141 Th is process highlights the fundamental aim of the General Register’s review, which is to give the petitioner an informed characterization of the submission while underscoring the petitioner’s ultimate responsibility for the “complaint.” In 2011 the General Register’s Office was confronted with 9,128 communications. It classified the great majority of these (5,983) as “petitions” or “constitutional complaints.” In 2011 the General Register lodged 1,549 petitions or complaints with the senates for ordinary admissibility review after having corresponded with the parties. The General Register assigned another 2,977 submissions to the senates for admissibility review without the benefit of correspondence between the General Register and the parties. A fi nal tranche of 4,505 submissions being handled by the General Register were closed in 2011 after its correspondence with the parties. These numbers do not necessarily add up to the total number of submissions assigned to the General Register in 2011. Th is is because the General Register’s Office often is busy wrapping up communications received in a preceding year and, concomitantly, often is not able to resolve all the communications it receives in the same calendar year.142 The General Register thus serves as an important gatekeeper. Th rough it pass only the most insistent of complainants. Th is screening function is not unproblematic. Formally, the General Register’s explanatory letters, which have the practical function of turning cases away, do not count as judicial decisions because they are not issued by judges. Nonetheless, they are often treated as judicial resolutions of the nonspecific communications received by the Court, particularly by the less-sophisticated recipients of the letters and in the Court’s statistics. These problems aside, the work of the General Register is remarkable in the following respect: through the General Register’s explanatory letters the Court bestows the courtesy of a response on every person who appeals to it. As Table 2 shows, constitutional complaints, requests for temporary injunctions, and concrete judicial review references have made up the bulk of the Constitutional Court’s very heavy docket over the last several years. The General Register, along with the chamber review process described earlier, seems to have given the Court the flexibility it needs to cope with its caseload. Just as the General Register carries the burden for the Court generally, the chamber review process permits a range of moreor-less objective and frequently undisclosed criteria to influence the summary disposition of cases and, thus, the resolution of matters that formally lay within the full senate’s competence.143 The increased number of legal assistants each justice is able

The Feder al Constitutional Court 31

table 2. Federal Constitutional Court’s Caseload Jurisdictional Category Constitutional Complaints Concrete Judicial Review Requests for Temporary Injunction Disputes between Federal Organs Abstract Judicial Review Federal State Confl icts Election Disputes Other Proceedings Totals

1951–2001

2009

2010

2011

126,962 3,147 1,157

6,308 47 148

6,251 19 132

6,036 35 103

130

2

3

9

141 35 144 451 136,647

2 0 1 0 6,508

0 1 16 0 6,422

7 0 17 1 6,208

Source: Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Eingänge nach Verfahrensarten,” available at www.bundesverfassungsgericht.de /organisation/gb2011/A-I-4.html.

to employ (now four) works in combination with the General Register’s review and the chamber system to help manage the Court’s docket. As Joachim Wieland remarked after his ser vice as a legal assistant at the Constitutional Court, “the preparation of the decision concerning the admittance of a constitutional complaint forms, as a rule, one of the more central tasks of the legal assistants.”144 These summary processes were viewed as adequately responding to the Court’s crushing workload, such that lawmakers were persuaded at the end of the 1990s, with the Court’s blessing, to forgo granting the Court discretionary case selection authority (freies Annahmeverfahren) of the kind enjoyed by the U.S. Supreme Court. The number of concrete review references has not added much to the Court’s heavy docket. The number is surprisingly low in light of a judiciary consisting of more than twenty thousand judges. The apparent reluctance of judges to refer constitutional questions may be attributed to the strong tradition of legal positivism that continues to hold sway in the regular judiciary. Jealous of their own limited power of judicial review, judges usually resolve doubts about the constitutional validity of laws at issue in pending cases by upholding the laws or interpreting them so as to avoid questions of constitutionality, thus obviating the necessity of a referral to Karlsruhe. The constitutional complaint procedure, on the other hand, has served as an escape hatch for litigants upset with the per for mance of the judiciary. More than 90 percent of all constitutional complaints are brought against judicial decisions (Table 3). The remainder are focused on legislative or executive infringements of basic rights.

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table 3. Sources of Constitutional Complaints, 2011 Lodged With Filed Against Ordinary Courts Civil Criminal Administrative Courts Social Courts Finance Courts Labor Courts Laws and Regulations Parliamentary Omissions European, Federal, State, and Local Administrative Actions

First Senate

Second Senate

Total

1,654 59 439 516 105 102 61 12 86

771 1,412 352 1 74 0 32 5 109

2,425 1,471 791 517 179 102 93 17 195

Sources: First Senate—Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Erster Senat— Verfassungsbeschwerden,” available at www.bundesverfassungsgericht.de /organisation/gb2011/B -II-2.html; Second Senate—Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Zweiter Senat—Verfassungsbeschwerden,” available at www .bundesverfassungsgericht.de/organisation/gb2011/C-II-2.html .

Nearly all complaints alleging that court decisions have violated the procedural guarantees of the Basic Law are disposed of by the Second Senate. The First Senate has jurisdiction over most complaints involving claims to substantive constitutional rights such as human dignity (Article 1); life, liberty, and personality (Article 2); equal protection (Article 3); the freedom to choose a trade or profession (Article 12); and property (Article 14).145 Even though the full senates decide a mere handful of such cases—sixteen in 2011—the constitutional complaint procedure is now deeply rooted in Germany’s legal culture. The right of any citizen to take a complaint to Karlsruhe is an important factor in the Court’s high rating in public opinion polls and, perhaps, the chief reason for the development of a rising constitutional consciousness among Germans generally. Most of the Court’s political jurisprudence falls into other jurisdictional categories, particularly conflicts between branches of government, disputed elections, and federalstate controversies. Although few in number (see Table 1), the political impact of these cases is substantial.146 In general, however, the Constitutional Court is most politically exposed when deciding cases on abstract judicial review. These cases are almost always initiated by a political party on the short end of a legislative vote in the Parliament or by the national or a state government challenging an action of another level of government

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controlled by opposing political parties. The apparent manipulation of the judicial process for political purposes in these cases has led some observers to favor the abolition of abstract judicial review.147 But those who decry the judicialization of politics— alternatively, the politicization of justice—have not gained much parliamentary support for the constitutional amendment that would be necessary to abolish abstract review. Equally disconcerting for those who would eliminate the thin line between law and politics trod by the Court in these cases is the failure of the justices themselves to mount any opposition to abstract judicial review. Indeed, the elimination of abstract review would run counter to the view of constitutionalism currently prevalent in the Federal Republic: the view that the Court, as guardian of the constitutional order, is to construe and enforce the constitution whenever statutes or other governmental actions raise major disputes over its interpretation. This observation clears the way for the following consideration of the Court’s role in interpreting the Basic Law and its concomitant role in the German polity.

judicial review in operation A major function of constitutional theory in Germany, as in the United States, is to resolve “the tension between representative democracy and constitutional review in a way that both justif[ies] and regulate[s] their coexistence.”148 Numerous commentators have sought to mark the boundary between legislation and constitutional adjudication and to comprehend the fi ne line that the Federal Constitutional Court has drawn between law and politics.149 The following discussion summarizes the strategies devised to temper judicial activism with restraint, thus preserving the creative coexistence between democracy and constitutionalism. Scope of Review. The Federal Constitutional Court renders its decisions largely in declaratory form. In cases of major importance it may issue a temporary injunction against a political department of the government, pending the clarification of a constitutional question. Yet, as will be more fully explained in the next chapter, the Court normally confi nes itself to declaring laws null and void or simply incompatible with some par ticu lar provision of the Basic Law. The Court is unbound by any case or controversy requirement, which permits it to remain on the high road of broadranging, principled declarations. In this sense, the Court elevates the status of the parties. As Justice Hans G. Rupp explained, “The only marshal there is to enforce the Court’s ruling is its moral authority, the conscience of the parties concerned, and in the last resort, the people’s respect for law and good government. It is mainly this limitation which renders it less objectionable to let a court settle legal issues which are closely connected with domestic or international politics.”150 The Court’s precious moral authority is supported by two pillars. First, the Court carefully observes the governing procedure described in the earlier sections of this chapter. Second, the Court follows a number of guidelines analogous to certain

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maxims of judicial self-restraint advanced by Justice Brandeis in Ashwander v. Tennessee Valley Authority (1936).151 For example, the rule that the U.S. Supreme Court will not pass upon the constitutionality of legislation in a nonadversarial proceeding has its equivalent in the Federal Constitutional Court’s refusal to decide moot questions. We have seen that concrete judicial review references must arise within the framework of actual litigation. The justiciability of a constitutional complaint likewise depends on certain attributes of concreteness and particularity. Even cases coming before the Court on abstract judicial review require real confl icts of opinion within or among governing institutions. The Court has also traditionally refrained from anticipating a question of constitutional law in advance of the necessity for deciding it. In short, while every case properly before the Court involves a constitutional question, the Court usually refrains from deciding ancillary constitutional issues not yet ripe for decision. For example, the Court may strike down a par ticu lar federal regulation interfering with a state’s administration of federal law but decline to set forth the general conditions under which federal administrative control would prevail. The Court is also reluctant to issue temporary injunctions against government agencies about to engage in allegedly unconstitutional behavior, preferring as a matter of strategy to allow the challenged activity to proceed until the Court has had time to consider the matter on its merits.152 American legal scholars will recognize other Ashwander maxims in the Court’s general approach to constitutional disputes. A leading principle of judicial review in Germany obliges the Court to interpret statutes, when possible, in conformity with the Basic Law (Pfl icht zur verfassungskonformen Auslegung).153 If a statute lends itself to alternative constructions for and against its constitutionality, the Court follows the reading that saves the statute, unless the saving construction distorts the meaning of its provisions. The Court has also stated on numerous occasions that it will not substitute its judgment of sound or wise public policy for that of the legislature. Nor will statutes be overturned simply because the legislature may have inaccurately predicted the consequences of social or economic policy. As the Kalkar I Case (1978; no. 4.6)154 and the Codetermination Case (1979; no. 10.9)155 make plain, the Court grants a generous margin of error to the legislature. It will uphold an ordinary statute unless the statute clearly violates the principle of proportionality (Verhältnismäßigkeit), the constitutional state principle (Rechtsstaat), or some related principle of justice such as legal security, clarity, or predictability. The Court applies these same principles with respect to laws examined in the course of ordinary civil and criminal proceedings. In addition, the justices have developed several rules for limiting the number of concrete judicial review referrals from ordinary courts.156 One such rule requires ordinary courts to certify statutes for review when they are convinced that the law under which a dispute arises is unconstitutional,157 but only when a ruling of unconstitutionality would change the outcome of the case. Another is that only statutes passed since the ratification of the Basic Law qualify as subjects of concrete judicial review to be decided by the Constitutional Court. Any court

The Feder al Constitutional Court 35

may review and nullify on constitutional grounds legislation, administrative regulations, and local ordinances enacted before 1949. These so-called preconstitutional laws rank lower than laws passed since 23 May 1949.158 The Federal Constitutional Court has ruled, however, that such laws are within the scope of its concrete judicial review procedure when they have been reenacted or substantially amended under the Basic Law. The appropriate parties may nevertheless challenge an untouched preconstitutional law in an abstract judicial review proceeding.159 Finally, while the Court does not enjoy discretion akin to the certiorari power of the U.S. Supreme Court, it does have limited control over its docket through the three-justice chambers. As described earlier in this chapter, this admissibility review can, to no small degree, be instrumentalized to serve the Court’s interests, including its interest in maintaining its stock of prestige and respect. Still, it would be improper to portray the Court as unswervingly modest and restrained. It can fi nd its way into a dispute if it thinks it wise as a matter of constitutional politics. One example of this should suffice. In 1998 the Court dramatically disregarded the fundamental principle of self-restraint that holds that a party’s withdrawal of a constitutional complaint removes the matter from the Court’s jurisdiction. In the German Spelling Reform Case (1998) the Court noted that the general importance of a case might elevate the objective role of the constitutional complaint, making it more important to the broader interpretation and development of constitutional law than to the complainant’s subjective, individual interest in the protection of his or her constitutional rights. Brushing aside the complainants’ desire to avoid a ruling in the case, the Court seized the matter and upheld the reform. In so doing, the Court prompted scholarly criticism that raised concerns about effectively limiting the scope of judicial review in a democracy.160 Form and Effect of Decisions. Indeed, on fi rst impression and contrary to the mechanisms of judicial restraint mentioned in the previous section, the Court’s decisionmaking record might suggest a tribunal embarked on a path of relentless activism. By 31 December 2011, as noted in Table 4, the Court had invalidated 640 laws and administrative regulations (or par ticu lar provisions thereof) under the Basic Law. Of these negative rulings, the First Senate decided 372 and the Second Senate 268, more than 70 percent of which involved provisions of federal law, a percentage explained by the federation’s predominant lawmaking role in nearly every major area of public policy. The large majority of these rulings admittedly involved minor legal provisions, but a fair number featured important public policies in fields such as education, taxation, employment, social insurance, and labor law.161 Table 4 does not capture the distinct means by which the Court invalidates laws and regulations. The Constitutional Court may hold laws or regulations to be either null and void (nichtig) or incompatible (unvereinbar) with the Basic Law. When held to be nichtig, the statute or legal norm immediately ceases to operate. When declared unvereinbar, the statute or legal norm is held to be unconstitutional but not void; it remains in force during a transition period pending its correction by the

36 chapter one

table 4. Invalidated Legal Provisions, 1951–2011 Filed Against

Federal

State

Total

First Senate Second Senate

284 173

88 95

372 268 640

Invalidated legal provisions include federal or state laws/regulations declared void, incompatible and void, or only incompatible and not voided.

Source: Bundesverfassungsgericht, “Vom Bundesverfassungsgericht in der Zeit von 1951 bis 31.12.2011 als verfassungswidrig beanstandete Normen (nichtig, unvereinbar und nichtig, nur unvereinbar—ohne Nichtigerklärung),” available at www .bundesverfassungsgericht.de/organisation/gb2011/A-VI .html .

legislature. The latter approach has been sanctioned by the legislature and is an option the Court frequently exercises.162 These overrulings, however, are dwarfed by the number of laws or statutory norms that the Court has sustained over the years. With respect to laws that are upheld, the Court distinguishes between so-called unobjectionable (unbeanstandete) norms and those held to be in conformity with the Basic Law. Unobjectionable norms are those the Court sustains in the normal course of deciding constitutional complaints. The other category includes statutory provisions questioned in concrete judicial review cases but sustained in accordance with the principle that requires the Court to interpret a norm consistent with the Basic Law. The practice of declaring a legal provision unconstitutional but not void is one of two strategies used by the Court to soften the political impact of its decisions. Th is fi rst strategy uses admonitory decisions (Appellentscheidungen) to tender advice to the Bundestag with respect to statutes or legislative omissions that run afoul of the Basic Law or are likely to do so.163 Th is strategy of declaring a law or practice unconstitutional but not void is designed to prevent the greater hardship or inconvenience that would flow from the complete voidance of a statute. How long and under what conditions an unconstitutional but still-viable law can remain in force is a matter the Court reserves to itself to decide. The Court usually sets a deadline for corrective legislative action and occasionally directs the Bundestag to adopt a specific solution. More often the Court lays down the general guidelines within which the legislature is required to act.164 Under the second strategy, the Court actually sustains a challenged statute but warns the legislature that it will void it in the future unless the legislature acts to amend or repeal the law. Cases employing this decisional mode often involve equal protection claims arising out of statutes that deny benefits or privileges to some persons while conferring them on others.165 Such decisions are prudential judgments designed

The Feder al Constitutional Court 37

to give the legislature time to adjust to changing conditions or to avoid the political or economic chaos that might result from a declaration of unconstitutionality. By resorting to this procedure, the Court keeps the constitutional dialogue going and furnishes Parliament with the flexibility it needs to work out creative solutions to the problem under scrutiny. In some situations, however, when the Court declares a statute unconstitutional and void, it tenders “advice” that leaves little discretion to lawmakers so that the Bundestag is not left in a quandary as to what alternative policy or program would survive constitutional analysis. In the important Party Finance II Case (1966; no. 5.12), for example, the Court went so far as to tell the Bundestag that federal funding would have to be provided to minor political parties securing 0.5 percent of all votes cast in a federal election instead of the 1.5 percent limit previously established by law.166 In the well-known Abortion I Case (1975; no. 7.4), which invalidated a permissive abortion statute, the Court effectively rewrote the law, which Parliament subsequently felt obliged to pass. These rulings, like all of the Court’s decisions, including those that declare a statute or other legal provision compatible with the Basic Law, have the force of law, and as a consequence bind all branches and levels of government.167 In the Southwest State Case (1951; no. 3.1) the Court made it clear that the binding effect of its decisions also bars the legislature from reenacting a law after it has been declared unconstitutional. The binding effect principle applies to the actual ruling of a case and to the “essential” reasoning or rationale on which it is based. What constitutes “essential” reasoning, however, is not always clear. It does not embrace all arguments marshaled in support of a given result, although it seems to include those basic standards of review in terms of which a law is sustained or nullified, for these standards bind courts of law in their own interpretation of ordinary law. The one exception to the binding effect rule is the Federal Constitutional Court itself. (The rule of stare decisis does not bind the German judiciary.) While reluctant to depart from principles laid down in its case law, the Court will readily do so if convinced that it erred in an earlier ruling. Indeed, as the Census Act Case (1983; no. 7.9) underscores, constitutional provisions may themselves take on new significance in the light of changing social conditions. Whenever the Federal Constitutional Court strikes down a law in whole or in part, the effect is prospective (ex tunc). Th is rule is qualified, however, by a provision of the fcca that permits new trials in criminal cases in which a court convicts a defendant under a subsequently voided statute.168 Statutes declared incompatible with the Basic Law but not void may continue to be enforced, but only under conditions laid down by the Constitutional Court. The effect of such decisions on other courts is substantial; they may not proceed with pending cases arising under such statutes until the legislature has amended or corrected the statute in conformity with the guidelines set by the Federal Constitutional Court. It is important to remember that the Constitutional Court’s rulings are exclusively declaratory. The fcca includes a provision that actually bars direct enforcement.169 Its decisions are “enforceable” through ordinary legislation and judicial

38 chapter one

proceedings. The Court’s jurisdiction is also compulsory. It lacks a storehouse of “passive virtues” by which it might for prudential reasons avoid a ruling on a constitutional issue.170 Moreover, the Court’s declaratory authority is sweeping, for it is at liberty to range beyond the immediate issue before it and review the constitutionality of any part of a statute challenged in an abstract or concrete judicial review proceeding. To link judicial power of this character with direct executive implementation would pose an enormous threat to representative democracy in Germany. The Court’s ultimate legitimacy in the German system, as noted earlier, rests on its moral authority and the willingness of the political arms of the government to follow its mandates. But the Court is faced with a dilemma. If it is to perform its steering and integrative role in the German system, objectify the values of the Basic Law, and bring constitutional normativity into conformity with constitutional reality, it must rule, according to the modern German version of the constitutional state principle (Rechtsstaat), on a properly presented constitutional issue, even though such a ruling may thrust it headlong into a politically exposed position. The Court has learned to cope with this political exposure. For example, in cases involving disputes between high constitutional organs (i.e., separation of powers, or Organstreit, proceedings) or those brought by political minorities on abstract judicial review, the Court occasionally makes an ally of time, delaying decision until the controversy loses its urgency or is settled by political means, prompting the initiating party ultimately to withdraw the case. Largely because of this tactic, through 2011 the Court has resolved 168 of 180 Organstreit proceedings and 163 of 172 abstract judicial review proceedings.171 Judicial Review and the Polity. As this summary of constitutional review suggests, and as subsequent chapters show, the Federal Constitutional Court is at the epicenter of Germany’s constitutional democracy. “The Basic Law is now virtually identical with its interpretation by the Federal Constitutional Court,” remarked Professor Rudolf Smend on the Court’s tenth anniversary.172 By the 1990s Smend’s view was conventional wisdom among German public lawyers and constitutional scholars. Most scholars and legal professionals accept the Court as a legitimate participant in the larger community decision-making process, a remarkable achievement of postwar institution building in the Federal Republic. Professor Christian Starck, one of the Basic Law’s leading commentators, described this consensus when he referred to the Court as the “crowning completion of the constitutional state” and applauded its “decisive influence upon the development of our constitutional law.”173 We may hazard some guesses as to why Germany’s legal community accepts the Court as the fi nal, authoritative interpreter of the Basic Law. First, and most obvious, the Court functions as a specialized constitutional tribunal with clear authority derived from the constitutional charter itself. Second, a democratic legislature chooses the members of the Court just as it controls the Court’s organization and procedures. Constitutionally prescribed recruitment procedures all but guarantee that the Court

The Feder al Constitutional Court 39

is staffed by justices who are acceptable to the established political parties and broadly representative of established political interests, including the interests of the states as corporate entities within the German system. Th ird, after years of experimentation with various terms of office, including life tenure for justices elected from the federal courts, Germans settled on a simple, nonrenewable term of twelve years for each justice, the effect of which is to secure both the Court’s independence and a continuing membership profi le not too unlike that of Parliament itself. Finally, the Bundestag permitted the introduction of dissenting opinions in 1971—a practice barred in all other German courts. At the same time, the Federal Constitutional Court, like the U.S. Supreme Court, often fi nds itself in the eye of a political storm. Despite its democratic legitimacy, or perhaps because of it, the Court has developed into a fiercely independent institution and has struck down many statutory provisions and administrative regulations. A wave of public lectures, newspaper and television commentaries, articles in legal periodicals—some authored by former justices—and legal monographs have criticized the Court, although for the most part respectfully, for “judicializing politics” or “politicizing justice.”174 Some of these publications take the Court to task for many of its admonitory decisions, which, in the view of some critics, have turned the Court into a quasi-legislative institution. The previously mentioned Abortion I, Party Finance II, and Census Act cases, as well as the East-West Basic Treaty Case (1973; no. 6.1), Numerus Clausus II Case (1977), and the Aviation Security Act Case (2006) (discussed in Chapter 7) are examples of decisions faulted for improperly exceeding the limits of judicial power.175 Even more devastating, other critics have charged the Court with dampening legislative confidence and flexibility. Some argue that the Parliament legislates too much in the shadow of the Court, fearful that its laws may run afoul of some judicial order, standard, or admonition.176 These critics point to the tendency of legislators to tailor their work to anticipated Court decisions and to scrutinize constitutional cases for hints on how to shape public policy. If this tendency does prevail, the Court’s role in the polity is not exhausted by an analysis simply of its formal powers or its case law. The mere presence of the Court would seem to inhibit certain kinds of legislative activity. Th is criticism, harsh as it is, nevertheless is predicated on a shared commitment to the Court as an institution. There is another stream of commentary, however, identified mainly but not exclusively with neo-Marxist critics, that manifests far less sympathy for the Court’s institutional role in German politics. In the eyes of these critics, the Court serves as a brake on social change and is the main force responsible for the imposition of a constitutional ideology that sanctifies consolidation and stability, defends the status quo, and promotes consensus politics. There may be some grounds for this criticism, for the Court has often used its power—with prominent exceptions duly noted in the following chapters—to invalidate reforms regarded as progressive and liberalizing by large segments of German society.177 Still, the Court’s prestige remains high. A series of public opinion polls taken in recent years shows that it enjoys substantially more public trust than any other major

40 chapter one

political or social institution, including the Bundestag, the military establishment, the regular judiciary, the television industry, and even churches and universities.178 Th is public trust is also evident among former East Germans who have made appeals to the Federal Constitutional Court in significant numbers. The faith former East Germans have placed in the Court is, no doubt, grounded in the experience that, on a number of occasions mentioned in later chapters, the Court has vindicated constitutional claims originating in the new eastern states. The absence of any major political effort to curtail the Court’s powers despite its location at the center of many political storms is perhaps another manifestation of its general support throughout Germany. Even proposals by respected academic figures to abolish the Court’s controversial abstract judicial review jurisdiction,179 which the Court could well do without in light of the political manipulation that often accompanies the invocation of this procedure, have fallen on deaf ears. The Federal Constitutional Court’s durability is traceable to more than general public support. The Court owes much to Germany’s community of scholars, despite the acerbic pens of some writers. The literature on the Court, ranging from doctrinal controversy in professional journals to informed media accounts of par ticu lar cases, is comparable to the volume and sophistication of commentary on the U.S. Supreme Court. German commentators form an ever-widening interpretive community organized around a deepening interest in the Court’s work. According to Professor Peter Häberle, among the most learned of Germany’s judicial scholars, the commentators see themselves engaged in a common enterprise with the Federal Constitutional Court.180 Their constructive criticism and increasing assertiveness have been stimulated in part by the use of the Court’s own dissenting opinions.181 The high-spirited give-and-take between the justices and the commentators is an important element of German constitutional law and consciousness. That both Court and commentators see themselves engaged in actualizing the constitution in the public life of the nation undoubtedly reflects the authoritative role of constitutional commentary in argumentation before the Court and in the general influence of the professoriat on and off the bench.

conclusion Karlsruhe was the capital city of the Grand Duchy of Baden (1806–1918). During the Weimar Republic, Karlsruhe continued as the capital of the Republic of Baden (1918–33). After the Hitler regime’s defeat, the Allies reclaimed Karlsruhe as the hub of the Occupation Zone shared by American and French forces. Karlsruhe now has come to be known as “the capital of German justice” because it is the home of both the Federal Constitutional Court and the Federal Court of Justice. From its residence in Karlsruhe, the Federal Constitutional Court enjoys, as we have seen, a  breathtaking mandate, both in scope and depth. Its jurisdiction is unlike any German court that preceded it and in the time since its creation it has come to be

The Feder al Constitutional Court 41

regarded as one of the world’s most important constitutional tribunals. Symbolic of the Court’s prominence, it was not an exaggeration for Gerhard Casper to suggest in his keynote address at the state ceremony commemorating the Court’s fi ft ieth anniversary that modern Germany might properly be called the “Karlsruhe Republic.”182

2 The Basic Law and Its Interpretation ∂ The Basic Law (Grundgesetz) of the Federal Republic of Germany entered into force on 23 May 1949. Under the circumstances of a divided nation, the founders decided to write a “basic law” rather than a “constitution” (Verfassung) just as they chose to call the assembly charged with framing a new constitutional charter a “parliamentary council” (Parlamentarischer Rat) instead of a “constitutional convention” (verfassunggebende Versammlung). The founders resolved, in the words of the preamble, “to give Germany a new order to political life for a transitional period” (emphasis added), one that would end with Germany’s reunification. On that faraway day—or so it seemed at the time—the Basic Law would cease to exist. Accordingly, the Basic Law would expire “on the day on which a constitution freely adopted by [all] the German people takes effect” (Article 146).1 When that day fi nally arrived on 3 October 1990, following a remarkable series of events, German unity took place by accession under a now-superseded version of Article 23—that is, within the framework of the Basic Law itself. The decision to retain the Basic Law as an all-German constitution and to continue its designation as the Grundgesetz was not unanticipated. Over the course of the preceding forty years, particularly in the light of the huge body of decisional law created by the Federal Constitutional Court (Bundesverfassungsgericht), the Basic Law had come to assume the character of a document framed to last in perpetuity. The Basic Law has been amended dozens of times since 1949, but these alterations changed neither the basic structure of the political system nor the fundamental principles on which it was based. The most opportune moment for constitutional change occurred in 1990 when the Unity Treaty merged the two halves of Germany into a single nation-state. With their different legal, social, and economic systems, the two German states might have wished for a fresh constitutional start that would combine the freedoms of the Basic Law with cherished East German principles of solidarity. No such change took place, however, and no opportunity was granted to the German people as a whole to ratify the Basic Law.2 Minor surgery was deemed sufficient to incorporate East Germany—the German Democratic Republic—into the existing West German Constitution. Accordingly, the Basic Law was amended to reflect certain structural and representational changes resulting from West Germany’s absorption of East Germany and its eighteen million citizens.3 To allow the new German states (Länder) that once constituted East Germany time to adjust their laws to the new governing charter, particularly laws relating to abortion, property rights, and federal-state relations, the treaty temporarily suspended the Basic Law’s application to specified East German policies and procedures that would remain in force temporarily.

The Basic Law and Its Inter pr etation 43

These changes, along with several other treaty provisions, including those permitting the dissolution of certain East German institutions, spawned a large body of constitutional case law. (Special attention will be given in Chapter 10 to decisions involving property rights and occupational freedom in the context of reunification.) Although these and other reunification cases represented an important chapter in Germany’s postwar constitutional odyssey, they do not seem to have worked a change in the fundamental character or interpretation of the Basic Law.

new constitutionalism of the basic law The Constitution as Supreme Law. The Basic Law marks a radical break with Germany’s past. Previous constitutions in the democratic tradition were easily amended and judicially unenforceable. By contrast, the Basic Law defi nes itself as the supreme law of the land. As several of its provisions make clear, it controls the entire German legal order, and Articles 1, 19, 20, and 79 are, for present purposes, particularly relevant. Article 1 (3) declares that the fundamental rights listed in the Basic Law, including the inviolable principle of human dignity, “shall bind the legislature, the executive, and the judiciary as directly enforceable law.” In reinforcing this provision, Article 20 subjects “legislation” to the “constitutional order” (verfassungsmäßige Ordnung) and binds “the executive and the judiciary to law and justice.” In binding executive and judicial authority to “law” (Gesetz), the Basic Law’s founders had recreated a formal Rechtsstaat—a constitutional state (i.e., a state based on the rule of positive law, in German known as Gesetz- or Rechtspositivismus)—but now, unlike in the past, law would subordinate itself to the suprapositive notion of justice or Recht (loosely translated as law, right, or justice), one that appeared to include unwritten norms of constitutional significance. In short, the Rechtsstaat, far from being an end in itself, would now encompass the broader principle of a constitutional state. Articles 19 and 79 carry the principle of the Basic Law’s supremacy even further. Article 19 (2) bans any law or governmental action that undermines “the essential content of [any] basic right.” Article 79 (3), which contains the so-called eternity clause, bars any amendment to the Basic Law “affecting the division of the federation into Länder, their participation . . . in the [national] legislative process, or the basic principles laid down in Articles 1 and 20.” Article 1, as noted, sets forth the principle of human dignity that the state is obliged “to respect and protect,” whereas Article 20 specifies the nonamendable structural principles of the state, namely, the principles of the constitutional, federal, social, and democratic state. The Basic Law’s framers believed that the best way to realize human dignity, then and in the future, was to endow the concept with the status of a judicially enforceable constitutional right and to freeze certain principles of governance into the constitutional structure itself. Finally, the authority conferred upon the Federal Constitutional Court, as well as upon the judiciary as a whole, assures every person that the Basic Law will prevail over all legal rules or state actions that would subvert or offend it. Accordingly, Article

44 chapter two

19 (4) grants a judicial hearing to any person whose rights the state violates. Indeed, “recourse shall be to the ordinary courts” in the event that some other judicial remedy is not specified by law. Article 80 (1) of the Basic Law—yet another pillar of the Rechtsstaat—helps to protect the constitutional state against the arbitrary decisions of executive officials. It requires any law delegating power to administrative officials to specify the “content, purpose, and scope of the authorization.” In backing up this guarantee, moreover, any judge may refer questions to the Constitutional Court in cases where he or she seriously doubts the constitutionality of a statute or regulation.4 Failing these protections, individuals have the further option, once their legal remedies have been exhausted, of filing a constitutional complaint with the Constitutional Court.5 Human Dignity and Basic Rights. Germany’s new constitutionalism has placed human dignity at the core of its value system. Article 1 (1) declares: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” The principle of human dignity, as the Constitutional Court has repeatedly emphasized, is the highest value of the Basic Law, the ultimate basis of the constitutional order, and the foundation of all guaranteed rights.6 Paragraph 2 continues: “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” The personal freedoms set forth in Article 2 reinforce the principle of human dignity. These include the right enjoyed by “every person” to the “free development of his [or her] personality” and to the inviolability of the “freedom of the person,” a freedom that includes the “right to life and physical integrity.” As for human personality, its development can be limited only by the “rights of others,” the “constitutional order,” and the “moral law.” Article 3 (1), the last of these general rights, secures to “all persons” equality before the law. The remaining sixteen articles of the “bill of rights” cover a long list of guaranteed rights largely associated with the Western political tradition. Several of these articles are word-for-word reproductions of corresponding articles in the Weimar Constitution of 1919. The difference is that the Weimar Constitution recognized basic rights as aspirational rather than as judicially enforceable norms. The notion of “inviolable and inalienable” rights is also sharply at variance with the spirit of earlier German constitutions, for the Basic Law is Germany’s fi rst national constitution to recognize the preconstitutional existence of guaranteed rights. The Basic Law treats such rights, contrary to the legal positivism underlying the Weimar Constitution,7 as vested in persons by nature and rooted in the universal concept of human dignity. General law (that is, positive law) may limit rights, but any such limitation would now be measured by the higher-law norms of the constitution. The Basic Law’s bill of rights traces its origin to the three major legal traditions that have shaped German life and law in the postwar era, namely, the traditions of social democratic, classical-liberal, and Christian natural-law thought. Each of these traditions has played a major formative role in German legal history; each had significant influence on the constitutional assembly of 1949; each fi nds many of its central values represented in the text of the Basic Law; and each continues its represen-

The Basic Law and Its Inter pr etation 45

tation in German political life today. The Social Democratic Party (spd) represents the socialist tradition; the Free Democratic Party (fdp) the classical-liberal tradition; and the Christian Democratic Union (cdu), together with its Bavarian affi liate, the Christian Social Union (csu), the Christian natural law tradition. In drafting the Basic Law, the representatives of these parties shed their historical antagonisms and, in a remarkable display of concord, drew willingly from the humanistic content of each tradition to create a constitution that combines the main values of each in a workable if not always easy alliance.8 At the risk of oversimplifying, one could attribute specific protections to these traditions. The classical-liberal tradition, for example, was responsible for many of the individual freedoms listed in several articles of the bill of rights (e.g., the rights to life and physical integrity [Article 2], equality [Article 3], religious exercise [Article 4], freedom of expression [Article 5], assembly [Article 8], association [Article 9], privacy [Article 10], movement [Article 11], and property [Article 14]). The socialist tradition contributed certain social welfare clauses, including provisions concerning the duties of property (Article 14) and the socialization of economic resources (Article 15). Finally, the Christian tradition added communal guarantees explicitly favoring the protection of marriage and the family (Article 6 (1)), the natural right of parents to educate their children (Article 6 (2)), and the institutional prerogatives of the established churches (Article 140). Philosophically, these traditions might be said to represent confl icting visions of the common good, yet they converge in the Basic Law around a common core of beliefs about the nature of constitutionalism and the dignity of the human person. The substantive values represented by these traditions are enormously important in the Federal Constitutional Court’s jurisprudence, although in the aftermath of reunification the traditions of sociality and solidarity that prevailed in East Germany might be added as a fourth system of values having an influence on Germany’s constitutional life. There is no debate in Germany, as there is in the United States, over whether the constitution is primarily procedural or value oriented. Germans no longer understand their constitution as the simple expression of an existential order of power. They commonly agree that the Basic Law is fundamentally a normative constitution embracing values, rights, and duties. That the Basic Law is a value-oriented document—indeed, one that establishes a hierarchical value order—is a familiar refrain in German constitutional case law. State and Morality. The Federal Republic’s constitutional system also differs from past regimes in its refusal to treat individual freedom as emanating from the state itself. The traditional theory of rights in Germany drew no clear distinction between state and society. The citizen was an organic part of the state and the state itself was an agent of human liberation.9 The German Staat and the English “state” are not equivalent terms. Der Staat is more than the body politic. It represents in Kant the perfect synthesis between individual freedom and the objective authority of law10 and in Hegel a moral organism in which individual liberty fi nds perfect realization in the

46 chapter two

unified will of the people: not arbitrary will but rather “the power of reason actualizing itself in will.”11 In brief, the Staat is considered by Hegel to be a superior form of human association, a uniting of individuals and society in a higher synthesis, a reality “in which the individual has and enjoys his freedom, [albeit] on condition of his recognizing, believing in, and willing that which is common to the whole.”12 Some features of the Basic Law, particularly its communitarian values, lend themselves to greater understanding in the light of these traditional German notions of liberty and state, notions suggestive of aspects of the Aristotelian polis as well as the early American tradition of civic republicanism.13 Nevertheless, as Leonard Krieger has pointed out, the founders of the Basic Law, mindful of the Nazi experience, discovered the “bankruptcy of the state as a liberalizing institution.” In his monumental study of the German idea of freedom, Krieger concluded that an attitude now predominates “which views the state as a morally neutral, purely utilitarian organization of public power.”14 Krieger’s assessment, while generally correct, needs to be qualified. The Basic Law as a modern twentieth-century constitution is interesting precisely because it subjects positive law to a higher moral order. Under Article 2 (1) of the Basic Law, for example, the “free development” of the human personality must conform to the “moral law.” To be sure, the Basic Law’s list of fundamental rights protects the ideological pluralism and moral diversity of the German people. But the moral law, as just mentioned, limits some rights as do certain conceptions of the human person and society found by the Constitutional Court to be implicit in the constitutional value of human dignity. The Constitutional Court itself rejects the notion of a value-neutral state. Instead, it speaks of a constitutional polity deeply committed to an “objective order of values,”15 although, as discussed later in this chapter, what this objective order means or from whence it derives is the subject of considerable disagreement on and off the Federal Constitutional Court. Judicial Interpretive Supremacy. The new constitutionalism not only establishes the Basic Law as supreme law, it also places the last word as to its meaning in the hands of the Federal Constitutional Court. The judicially enforceable constitution may be said to consist of three “documents.” The fi rst, as already noted, is the unamendable constitution established in perpetuity by the eternity clause of Article 79 (3). Indeed, as noted later in this chapter, the Constitutional Court has declared that an amendment to the Basic Law that would undermine or corrode any of its core values would be an unconstitutional constitutional amendment. The second is the amendable constitution, namely, those parts of the written text that can be altered without affecting the Basic Law’s core values. Finally, there are the unwritten or suprapositive principles implicit in such terms as justice, dignity, and the moral law, terms into which the Court has imported significant meaning. These governing principles, like the hierarchical value order the Constitutional Court has inferred from the text of the Basic Law, are an important part of Germany’s constitutional order. The judicial enforcement of constitutional values is a practice that departs measurably from the traditional judicial role in Germany. Germany’s variant of judicial

The Basic Law and Its Inter pr etation 47

review, however, differs from the American. The difference is at once subtle and profound, and it may be summarized as follows: Whereas American constitutionalism has historically entailed a creative interaction between the constitutional text and evolving political practice, German constitutionalism tends to place greater emphasis on the capacity of the formal text to influence political practice. Abstract judicial review, discussed in the previous chapter, is one manifestation of this tendency. Abstract review underscores the sovereignty and universality of constitutional norms and affi rms the essential unity of the constitution, a concept of constitutionalism seemingly related to the old notion of the Rechtsstaat that envisioned the state or polity as a purely juristic construction.16 In short, while judicial review under the Basic Law represents a major break with the legal tradition of the Rechtsstaat, it nevertheless continues to manifest elements of that tradition. Perhaps the following remarks will help to clarify this point. The American Constitution has historically served as a framework for the process of government. While the constitutional text and the polity have influenced one another, the bond between them is far from perfect.17 American pragmatism leaves a lot to chance and circumstance, shows little distress in constitutional ambiguity, and refuses to insist on the application of constitutional morality in all particulars. The Supreme Court has developed a battery of techniques to avoid constitutional decisions in certain cases and even to permit—under the aegis of the political question doctrine, the case or controversy requirement, and other devices for avoiding decision—contraconstitutional developments within the polity. The American legal mind is comfortable with the uncertainty that often prevails when, for prudential reasons, the Supreme Court declines to consider constitutional issues. Thus, the written constitution is far from coextensive with the American polity. In Germany, on the other hand, the Basic Law was designed not only to create a system of governance but also to foster a secure and preferred way of life.18 German constitutional scholars often speak of the steering, integrating, and legitimizing functions of the constitution, as if to suggest a more perfect bonding between text and polity.19 They insist on the strict enforcement of the Basic Law in all particulars, for to do otherwise would be to sanction a lawless society. In brief, there is less tolerance of uncertainty or ambiguity in constitutional matters. Confl icts between text and polity cause crises in the German public mind and commotion among legal scholars and others concerned with the proper relationship between the “normativity” of the constitution and the “existentiality” of political reality.20 Th is complex of attitudes has implications for judicial review. Abstract questions of constitutional law matter in Germany, in contrast to the Holmesian view—a predominantly American perspective—that general propositions do not decide concrete cases. Questions of constitutionality that do arise in the course of enacting legislation must be confronted, not avoided; there is, thus, a tendency to have the constitutional correctness of every important and controversial statute scrutinized by the Constitutional Court in Karlsruhe. The feeling exists that if legislation, however trivial or noncontroversial, is unconstitutional, then it is contrary to the Rechtsstaat

48 chapter two

and therefore bad for the body politic. In this spirit, Karl Heinrich Friauf has written that constitutional interpretation in Germany “forms a part of what we might call the eternal struggle for the self-realization of constitutional law in the life of the community.”21

nature of the polity Article 20, as already noted, sets forth the fundamental, nonamendable principles of the new republic. Beyond describing the polity as a “democratic and social federal state,” paragraph 2 decrees that “all state authority emanates from the people” and “shall be exercised by the people through elections and voting and by specific legislative, executive, and judicial organs.” The Basic Law thus creates a representative democracy undergirded by a system of separated powers. To ensure the realization of these values at all levels of government, Article 28 (1)—known as the homogeneity clause—declares that state and local governments “must conform to the principles of republican, democratic, and social government based on the rule of law.”22 Accordingly, Articles 20 and 28 advance several conceptions of the state that have achieved authoritative status in German constitutional law. These include the constitutional state (Rechtsstaat), the social state (Sozialstaat), the federal state (Bundesstaat), and the principle of democracy (Demokratieprinzip). The party state (Parteienstaat), a jurisprudential offshoot of the democratic principle, should be added to this mix. Constitutional State (Rechtsstaat). The term Rechtsstaat has no exact equivalent in English. Although best translated as “constitutional state,” this book also employs where appropriate the more common renderings of “law state,” “rule of law,” or “a state governed by law.” In its older and newer incarnations the Rechtsstaat embodies more than the idea of a mere government of laws.23 As developed originally in the nineteenth century, the Rechtsstaat was a “state governed by the law of reason,” one that insisted on the freedom, equality, and autonomy of each individual within the framework of a unified legal order defined by legislation and administered by independent courts of law. The traditional Rechtsstaat, while emphasizing the importance of formal liberty, was indifferent to whether the government of the day, as opposed to the timeless Staat, was monarchical, aristocratic, or democratic. It was not until later, toward the end of the nineteenth century, when the constitutional theorists Otto von Gierke and Rudolf von Gneist exercised great influence, that the Rechtsstaat began to integrate state and society and to proclaim the unity of law and the state. Although bound by laws administered by independent courts, the state took on a life of its own, undermining the individualistic rationale of the earlier Rechtsstaat. Finally, in the early twentieth century and during the Weimar Republic, the concept of the Rechtsstaat was increasingly associated with legal positivism. Written law was supreme law because it reflected the popular will, which was the ultimate basis of the Rechtsstaat’s traditional legitimacy. In this system, the courts had the duty to uphold the law as defined by statute

The Basic Law and Its Inter pr etation 49

and to ensure that all state activity was conducted according to the supreme legislative will, leaving little room for the exercise of constitutional judicial review. The Basic Law did not completely abandon the principles of the old Rechtsstaat. But the Basic Law now uses the term law (lex) in the sense of both Gesetz (statutory law) and Recht (law or right).24 Recht, however, may also be translated as “justice.” As stated in Article 20 (3), “the executive and the judiciary are bound by law and justice” (Gesetz und Recht), just as “legislation is subject to the constitutional order.”25 It bears repeating that the constitutional order of the Basic Law has been described as a value-oriented legal system. The Basic Law not only subjects law to the concept of justice; it also creates a fundamental system of values in terms of which all legislation or other official acts must be assessed. Ernst-Wolfgang Böckenförde, a former justice of the Federal Constitutional Court, puts it this way: The logic of thinking about values and justice demands that the constitution conceived along the lines of the material Rechtsstaat should lay claim to an absolute validity extending to all spheres of social life. It thus sanctions certain basic politicalethical convictions, giving them general legal validity, and discriminates against others that run counter to them. It no longer guarantees liberty unconditionally by way of formal legal demarcation; it does so only within the fundamental system of values [Wertgrundlage] embodied in the constitution.26

These values, like the concept of justice, as Böckenförde suggests, may trump liberty when they confl ict. Under the U.S. Constitution, on the other hand, liberty would often trump values—for example, the value of human dignity. In short, the social Rechtsstaat is not only governed by law; it is also perceived as a substantive charter of justice. Positive law must conform to the Basic Law’s order of values—as distinguished from guaranteed individual rights—informing the constitution as a whole. As already indicated, this expanded notion of the Rechtsstaat includes the judicial review of the constitutionality of laws and other governmental actions. As the highest institutional expression of the constitutional state principle, the Constitutional Court serves as the ultimate guardian of the Basic Law. Thus, any branch or level of government that violates the constitution or refuses to carry out a constitutional duty can be called to account in a proper proceeding before the Constitutional Court. Additionally, the Basic Law authorizes the Court to review the constitutionality of laws and to hear complaints from ordinary citizens claiming a violation of their fundamental freedoms by any agency or branch of government. These powers, together with the ability of all other judges to refer constitutional questions to the Court for resolution, impart additional normative force to the constitution. Social State (Sozialstaat). As judicially defi ned, the social state clause of Article 20 obligates the government to provide for the basic needs of all Germans. Th is commitment, however, does not mean that every social benefit conferred by law is mandated by the principle of the social state. Whether par ticu lar policies such as family allowances or educational benefits are constitutionally required by the principle of

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the social state is a matter of dispute among constitutional scholars,27 a dispute that has reached a new level of intensity in reunified Germany and under the impact of a globalized market economy. The concept of the social state, like that of the Rechtsstaat, has good pedigree in German constitutional thought.28 Its roots lie deep in the old Lutheran notion that, while the people owe allegiance to the prince, the prince in turn is bound to see to the welfare of his subjects. Th is idea fi nds its most prominent modern expression in the extant social security and protective labor legislation of the Bismarckian era. Backed by strong socialist influences and supported by Christian democracy, the social state as a concept of political order found full expression in the Weimar Constitution. Today even neoliberal, market-oriented advocates, not to mention Christian Democrats schooled in Catholic social thought, regard the Sozialstaat as an important ingredient of Germany’s constitutional tradition.29 If there was any doubt about this important ingredient of German constitutionalism, the Federal Constitutional Court put it to rest in the recent Lisbon Treaty and Hartz IV cases. In Lisbon (2009; no. 6.6), the Court described the social state as an essential part of what it described as Germany’s “constitutional identity,” a distinctiveness that cannot be sacrificed to any other value of the Basic Law. In Hartz IV (2010), the Court struck down a reform of the Federal Social Assistance Act because the Parliament (Bundestag) failed to consistently apply its methodology for establishing the “subsistence minimum,” the level of public support necessary to be consistent with the principle of human dignity.30 Nevertheless, a lively academic debate over the relationship between the Sozialstaat and the Rechtsstaat continues to engage German constitutional theorists. Formally conceived, the Rechtsstaat emphasizes the crucial importance of individual liberty, the right to choose one’s trade, and the right to acquire and dispose of one’s property. At what point do the demands and arrangements of the Sozialstaat begin to undermine the Rechtsstaat’s liberty-securing values and structures? German views range from the conservative perspective of Ernst Forsthoff, who argued that the Basic Law constitutionalizes an individualistically based, market-oriented, free enterprise economy, all the way to the left-wing view—one shared today by many former East Germans—that the Sozialstaat constitutionally requires major redistributive socioeconomic and tax policies.31 The Federal Constitutional Court’s perspective, covered at length in Chapter 10, falls between these poles. Federal State (Bundesstaat). The Basic Law defi nes Germany as a federal state and, as Article 79 (3) [3] stipulates, federalism is an unamendable feature of the Basic Law. Federalism as a constitutional principle—and requirement—is taken up in Chapter 3. It suffices here merely to mention that, in accordance with Article 79, states may change their boundaries and even merge with one another but only when this is accomplished by a federal law and confi rmed by referenda in the affected areas. Article 29 sets out these terms for territorial reorganization. Accordingly, Länder may be redefi ned or rearranged but not consolidated or transformed into a unitary polity. What is unamendable under Article 79 (3) is the division of Germany into territorial

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units or Länder and their participation in the national legislative process. Federalism is part of Germany’s ancestral heritage and arguably one of the roots of German democracy. Prior to 1849, and unlike Britain, France, and Spain—all unitary nation-states— Germany consisted of a collection of territorial governments, principalities, and free cities with their distinctive political, cultural, and religious or secular traditions. Little wonder the national constitutions of 1849, 1871, and 1919 created federations. The Frankfurt Constitution of 1849 converted the kingdoms and estates of the old German Confederation into a federal constitutional monarchy. The Imperial Constitution of 1871, designed to overcome the particularism and fragmentation of the North German Federation in the wake of an emerging capitalist economy, consolidated twenty-five states and city-states under Prussian leadership. The Weimar Constitution, fi nally, after continuing territorial adjustments, established Germany’s fi rst democratic republic consisting of seventeen states. Given this history of federated governments—and the priority the Allies gave to reestablishing local and state governments in the immediate aftermath of the war—West Germany’s constitution makers would surely have created a democratic federal republic even if the Allies had not insisted on it. But as the materials in Chapter 3 show, the precise nature of Germany’s new federal union remains a matter of some dispute among constitutional scholars. Democratic State (Demokratieprinzip). The Basic Law defi nes Germany’s political system as “democratic” in no fewer than eight of its provisions. Beyond these provisions, the principle of democracy comes into play in articles and clauses relating to elections, voting rights, political parties, freedom of speech and press, parliamentary representation, and the right to form independent associations. Each of the constitutional provisions defi ning or protecting these values and institutions has been the subject of repeated disputes before the Federal Constitutional Court. (The cases featured in Chapter 5, “Political Representation and Democracy,” incorporate the jurisprudence of democracy flowing from these disputes.) The democratic principle operates mainly through the institutions mentioned below in the section on state organization. It suffices here to note that the Basic Law provides for a system that is both parliamentary and representative, excluding all forms of direct democracy at the national level. One distinctive feature of German democracy is its intolerance of activities or ideologies opposed to or subversive of the “free democratic basic order.” These terms appear in no fewer than four articles of the Basic Law. Each permits restrictions on the exercise of certain rights if actively used to combat democracy. Article 21 (2) is among the most important of these provisions. It declares: “Political parties that, by reason of their aims or the behavior of their adherents, seek to impair or abolish the free democratic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional.” Accordingly, Germany has been described as a  “militant democracy” (streitbare Demokratie or wehrhafte Demokratie), terms adopted from the pre-war work of the exiled German jurist Karl Löwenstein by the

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Federal Constitutional Court in the famous Communist Party Case (1956). Article 18 is yet another expression of the constitutional principle that democracy is entitled to defend itself against its internal enemies. According to this provision, any person who abuses the basic freedoms of speech, press, teaching, assembly, association, or property “in order to combat the free democratic basic order” forfeits these rights. Indeed, under Article 20 (4), even ordinary “Germans have the right to resist any person attempting to do away with this constitutional order, should no other remedy be possible.”32 The notion of a militant democracy differs radically from what has been called the “value neutrality” of the Weimar Constitution. Freedom and democracy are paramount values of the “free, democratic, basic order” and their defense is the paramount duty of public officials and citizens alike. To minimize any abuse of power conferred by Articles 18 and 21, the Basic Law authorizes only the Federal Constitutional Court to order the forfeiture of rights or to declare parties unconstitutional. During the Weimar period the president of the Republic could ban parties and curtail rights on his authority under the emergency provisions of Article 48. Under the Basic Law, by contrast, the Constitutional Court retains its jurisdiction even during a state of emergency, including the authority to determine the forfeiture of basic rights under Article 18. In short, the Basic Law joins the protection of the Rechtsstaat to the principle that democracy is not helpless in defending itself against parties or political movements bent on using the constitution to undermine or destroy it. Party State (Parteienstaat). The Basic Law does not explicitly describe the Federal Republic as a party democracy but the Federal Constitutional Court has done so. In a departure from tradition as radical as judicial review itself, Article 21 of the Basic Law permits the free establishment of political parties, virtually certifying them as the chief agencies of political representation. Additionally, and in language recalling an older German theory of the state, Article 21 (1) declares that “political parties shall participate in forming the political will of the people.”33 Popu lar sovereignty is to be achieved through political parties competing in free and equal elections. In an effort to secure genuine majority rule, the constitution requires parties to organize themselves democratically and to account publicly for the sources of their funds. By characterizing Germany’s democracy as a Parteienstaat, the Constitutional Court has stamped political parties with a quasi-constitutional status. In particular, it treats parties as constitutional organs when engaged in election campaigns. Accordingly, as organs constitutionally empowered to form the people’s will for representational purposes, they may vindicate their electoral rights in Organstreit proceedings before the Court. Their status as constitutional organs for electoral purposes prompted the Court early on to recommend the public funding of political parties, a suggestion the Parliament took up almost immediately, leading to a series of important party finance cases decided by the Court between 1966 and 1993, several of which are featured and discussed in Chapter 5. Article 38, which provides for the “general, direct, free, equal and secret” election of parliamentary delegates, pulls in the opposite direction, namely toward an older, rep-

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resentative theory of democracy. Members of parliament, Article 38 declares, “shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience.” Here a natural-law principle—conscience—intrudes to limit the party loyalty implied, perhaps even mandated, by Article 21. The federal structure, like the theory of party responsibility, also tempers majority rule, for Land governments enjoy a corporate right to participate in the national legislative process and often exercise that right to delay or refuse their consent to bills passed by the Bundestag. In the end, the constitution seems ordained not only to achieve, under the rubric of majority rule, some degree of correspondence between public policy and popular will, but also, as a consequence of its federal structure, to serve as an instrument of political conciliation, consensus, and cohesion.34 State Organization. Further details on the organization of the state in Germany will be discussed in Part II on governmental structures and relationships. It suffices here simply to say that the Basic Law recreates most of the governmental structures established by the Weimar Constitution except for eliminating those crippling defects that facilitated Hitler’s rise to power. The Basic Law’s major structural changes were designed to stabilize German democracy. As in the Weimar Republic, authority remains divided among executive, legislative, and judicial institutions, but their relationship—or better, the constitution’s system of checks and balances—has changed. Executive authority is still shared by a federal president (Bundespräsident), a federal chancellor (Bundeskanzler), and a cabinet of federal ministers. Together, the chancellor and his or her cabinet are referred to as the federal government (Bundesregierung). The role of the president, however, is largely ceremonial. And since presidents are no longer popularly elected, as in the Weimar Republic, but rather indirectly elected by a federal convention, they are no longer in political competition with the chancellor. The key executive official is the chancellor, the leader of the largest party in Parliament, who determines the general guidelines of public policy. In addition, the chancellor’s position is far more secure than it was during the Weimar Republic. The popu lar legislative chamber, the Bundestag, whose members are elected for a four-year term, may not dissolve itself nor can it be dissolved by the chancellor. The Bundestag may dismiss the chancellor only by electing a successor, an innovation known as the constructive vote of no confidence. If a chancellor loses a vote of confidence on Parliament’s initiative and Parliament fails simultaneously to elect his or her successor by the required majority vote, the chancellor remains in office as the head of a minority government. Article 68 provides the only path toward Parliament’s dissolution. It authorizes the president to dissolve Parliament, but this power too is circumscribed. It requires that if the chancellor initiates a vote of no confidence and loses by a majority vote of Parliament’s members, only then may the chancellor request that the president dissolve Parliament and call for new elections. But the latter may not do so if he or she independently concludes that the chancellor has engineered or orchestrated a no-confidence vote merely to hold a new election in the hope of increasing his or her parliamentary majority. What is more, each of these

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political decisions is subject to review by the Federal Constitutional Court. (See Chapter 5 for a discussion of the two constitutional cases involving Article 68.) The Basic Law vests legislative power in the Bundestag and the Federal Council of States (Bundesrat). But the two chambers are not equal. The popularly elected Bundestag is the main policy-making organ of the national government. The Bundesrat is the organ through which Land governments participate in the national legislative process. Constitutionally, the Bundestag must consult the Bundesrat on all the policies it enacts, but the latter’s consent is required on proposed constitutional amendments, policies affecting the local administration of federal law, and other matters of special interest to the Länder, including laws on apportionment of expenditures and tax revenue. The Bundesrat also elects one-half the members of the Federal Constitutional Court. The two chambers are not comparable to the U.S. Senate and House of Representatives. First, the Länder do not have equal representation in the Bundesrat. Each state’s representation, ranging from three to six members, depends on its population. Second, each Land’s slate of votes in the Bundesrat must be cast as a block, a procedure that arguably gives the Länder as corporate entities much more leverage on certain issues than the American states enjoy in the U.S. Senate. Given what has already been said about courts and judges in the previous chapter, we need not dwell in this space on the powers and organization of the judiciary, except to say, once again, that German judicial organization is very different from the American system. Germany, unlike some other federal systems, does not have a dual system of federal and Land courts. The German judicial system is specialized and unitary. It features separate hierarchies of administrative, social, fi nance, and labor courts as well as ordinary courts of civil and criminal jurisdiction. All courts of fi rst instance and intermediate courts of appeal in each area of specialization are Land courts, whereas all fi nal courts of review in each of the subject-specific hierarchies are federal tribunals. The Federal Court of Justice (Bundesgerichtshof), the successor to Weimar’s Imperial Court of Justice (Reichsgericht), is the last court of appeal in ordinary civil and criminal matters. Although all fi rst instance and intermediate courts are established and staffed by the Länder, federal law defines their structures and procedures along with the qualifications and legal status of their judges. Finally, the Federal Constitutional Court stands apart from and independent of all these courts, serving not only as the guardian of the constitution’s values but also as the rudder that guides and directs the political system as a whole. In sum, the Basic Law builds on and strengthens older structures and practices in Germany’s constitutional tradition. Popular sovereignty, affi rmed once again, now manifests itself in representative institutions rather than plebiscites; political parties, fortified by a new electoral system combining single-member districts with proportional representation, organize these institutions in the public interest; a strong chancellor, unremovable save by a constructive vote of no confidence,35 stabilizes the government; the basic structure of federalism, now beyond the power of the people to amend, is established in perpetuity; separation of powers now includes the judicial

The Basic Law and Its Inter pr etation 55

control of constitutionality; and, fi nally, majority rule is overlaid with a complex system of checks and balances, not to mention the indirect election of the federal president.

theories of the constitution The Federal Constitutional Court’s approach to constitutional interpretation needs to be understood within the context of Germany’s civilian legal culture, one inviting brief comparison with the American common-law tradition. The following description of judicial decision making in Germany and the United States oversimplifies a more complex reality, but it nevertheless helps to capture the spirit of the judicial role in the two countries. The German legal mind, schooled historically in the tradition of conceptual jurisprudence (Begriffsjurisprudenz) or legal positivism, tends to envision law as a legislatively created, self-contained, rational, deductive system of rules and norms. Positing a sharp separation between law and morals—between the “is” and the “ought”—Begriffsjurisprudenz seeks to create a science of law marked by its own internal standards of validity. It strives to separate law from the domains of politics, psychology, and sociology.36 Law, in short, rests on an independent foundation of reason and logic. In this mode of legal thought the judge does little more than mechanically apply fi xed rules of law. Accordingly, fidelity to law as written is the judiciary’s major commitment.37 The American conception of law, by contrast, derives its spirit from the common law, the essence of which is captured in Oliver Wendell Holmes’s famous aphorism, “The life of the law has not been logic, it has been experience.”38 Like Holmes, Americans generally have understood law as a pragmatic enterprise. Correspondingly, they understand the concept of judicial decision making as an inductive process of reasoning open to extralegal influences and responsive to social change. Common-law judging, at least as it has emerged in the twentieth century under the influence of the realist school of jurisprudence, is more than simply applying the law as written. Its task is to solve problems, often by appealing to societal values and the perceived needs of  public policy. Historically, common-law judges have understood themselves as engaged in a creative process, one driven, as Cardozo wrote, not only by the “directive force of precedent,” but also by history and tradition.39 Law, particularly in nineteenthcentury America, was mainly judge-made law, and one of its main purposes was at once to limit the state and to promote the release of private entrepreneurial energy.40 Code-law reasoning in Germany’s civil-law tradition, like common-law reasoning in the United States, has exerted a powerful influence on the development of public law, including constitutional law. If the spirit of American public law is symbolized by figures like Holmes, Pound, Cardozo, Llewellyn, Frank, and Hand,41 the spirit of German public law is personified by legal theorists such as Jellinek, Anschütz, Laband, Puchta, Radbruch, and Kelsen.42 Similarly, if American constitutional jurisprudence locates its indigenous roots in the realism of Madison, Hamilton, and Wilson,43

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German constitutional jurisprudence fi nds its compass in the idealistic rationalism of Hegel, Kant, and Fichte.44 Th is remark may blur important distinctions among German schools of legal thought, yet the one notion that emerges relatively intact, in contrast to the United States, is the reality and ubiquity of the state. German legal theorists, sometimes to a calamitous degree, have commonly assumed that law and justice would thrive solely within the bosom of that near-perfect society known as the state. The Basic Law represents a major break from this tradition. It does not regard the state as the source of fundamental rights. The core of individual freedom, like human dignity itself, is regarded as anterior to the state. Thus, law and justice, as we have seen, now measure the validity of governmental actions, including judicial decisions. Inalienable rights, justice, values, and other such notions arguably present in the Basic Law militate against the methodology of legal positivism. And yet, for all that, the analytical approach to judicial reasoning rooted in Begriffsjurisprudenz has had a lasting influence throughout Europe, including Germany.45 German constitutional scholars, no less than the justices of the Federal Constitutional Court, have made significant attempts to build a theory of judicial decision based on reason and logic. In discussing these contrasts between legal cultures, we should observe that in both Germany and the United States, countervailing theories of law have always challenged the dominant mode of legal thought. In Germany, for example, the extent to which judges were free to depart from the will of the legislature was a central issue in legal argument during much of the nineteenth century. Begriffsjurisprudenz, while it predominated during this period, had to defend itself against the historical school of jurisprudence.46 By the same token, in the early years of the twentieth century the “free law” school of judicial interpretation and the Interessenjurisprudenz of Philipp Heck and Rudolf von Ihering assailed the prevailing school of legal positivism.47 Then too, during the Weimar Republic—against the backdrop of the continuing revolt against legal positivism—neo-Hegelian, neo-Kantian, and phenomenological schools of legal thought were developing new theories of law and judicial interpretation in an effort to overcome the “is-ought” dichotomy at the heart of legal positivism.48 Finally, after World War II, natural-law theory, breaking out afresh from both Catholic and Protestant sources, has endeavored to depose legal positivism.49 In the United States, pragmatic jurisprudence had to face similar challenges, ranging from those of David Dudley Field, Christopher Langdell, and Owen Roberts, each of whom tried to build a true science of law or judging, to those of the valueoriented natural-law “moralists” and fundamental rights “objectivists” of our own time.50 Structural Unity of the Basic Law. In its fi rst major decision—the Southwest State Case (1951; no. 3.1)—the Federal Constitutional Court underscored the internal coherence and structural unity of the Basic Law as a whole.51 “No single constitutional provision may be taken out of its context and interpreted by itself,” declared the Court. “Every constitutional provision must always be interpreted in such a way as to

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render it compatible with the fundamental principles of the constitution and the intentions of its authors.”52 Justice Gerhard Leibholz, commenting on Southwest State, elaborated: “The Court holds that each constitutional clause is in a defi nite relationship with all other clauses, and that together they form an entity. It considers certain constitutional principles and basic concepts to have emerged from the whole of the Basic Law to which other constitutional regulations are subordinate.”53 In one important case the Court alluded to the “unity of the constitution as a logicalteleological entity,” a concept traceable to Rudolf Smend’s “integration” theory of the constitution.54 Smend regarded the constitution as a living reality founded on and unified by the communal values embodied in the German nation. In Smend’s theory, the constitution not only represents a unity of values, it also functions to further integrate and unify the nation around these values.55 Yet the unity the Court has found in the constitution does not imply a single grand theory of the polity that pervades the Basic Law as a whole. Nor does it imply the absence of competing interests or values. What it does imply is the need for reconciling these interests or values. The German state’s constitutional design is multifaceted; as noted earlier, the Basic Law defi nes the political system as federal, social, and democratic, just as Germany’s democracy has been judicially characterized as a liberal and militant party state. The liberalism and militancy of German democracy has in turn been linked to the Basic Law’s principle of human dignity. The interpretive problem is to keep each of these visions of the state—federal, democratic, social, liberal, and party-directed—alive and in some kind of creative balance, so that a judicial emphasis on any one dimension within a par ticu lar context does not result in the erosion or neglect of another in some other context. Objective Order of Values. As already noted, the Constitutional Court envisions the Basic Law as a unified structure of substantive values.56 The centerpiece of this interpretive perspective is the concept of an “objective order of values,” one that derives from the gloss the Constitutional Court has put on the constitutional text. The Court had originally emphasized the negative aspect of rights. But in one of its early decisions the Court remarked, “There is no doubt that the main purpose of basic rights is to protect the individual against the encroachment of public power . . . but it is equally true that the Basic Law erects an objective order of values in the section on basic rights. Th is system of values, which centers on the dignity of the freely developing person within society, must be seen as fundamental to all areas of law.”57 Accordingly, the constitution incorporates the basic value decisions of the founders, the most basic of which is their choice of a free democratic basic order buttressed and reinforced by basic rights and liberties, all of which are crowned and informed by the master principle of human dignity. These basic values are “objective” because they are said to have an independent reality under the constitution, imposing on all organs of government an affi rmative duty to see that they are realized in practice. The notion of an objective value order may be stated in another way. Every basic right in the constitution—for example, freedom of speech, press, religion, association,

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and the right to property or the right to choose one’s profession or occupation—has a corresponding value. A basic right is a negative right against the state, but this right also represents a value, and as a value it imposes a positive obligation on the state to ensure that it becomes an integral part of the general legal order.58 One example may help illuminate this complex principle: The right to freedom of the press protects a newspaper against any action of the state that would encroach on its independence, but as an objective value applicable to society as a whole, the state is duty-bound to create the conditions that make freedom of the press both possible and effective. In practice, this means that the state may have to regulate the press to promote the value of democracy. For example, it might enact legislation to prevent the press from becoming the captive of any dominant group or interest. In addition, the Court speaks of a ranked order of values, one in which human dignity tops the ranking with the general values of liberty, equality, personal inviolability, and physical integrity following close behind. The application of this value order to specific situations, however, has been a source of confl ict on and off the bench.59 For many of the critics, an appeal to objective values is little more than open-ended judicial decision making disingenuously posturing as rationality.60 As Clarence Mann has written, “It harbors the illusions of determinate norms in the fact [sic] of unarticulated value premises and of judicial neutrality aloof from the creative search for normative content”; yet, in contrast to Begriffsjurisprudenz, it does “not necessarily exclude considerations of political reality in the construction and application of the constitution.”61 In short, it satisfies the traditional German yearning for objectivity in the sense of separating law from politics, yet tolerates the search for the social and moral purposes behind constitutional provisions. Relatedly, the Constitutional Court has occasionally spoken of certain suprapositivist norms that presumably govern the entire constitutional order. In an early case, decided in 1953, the Court, recalling the Nazi experience, rejected “value-free legal positivism.”62 The First Senate, at the time presided over by President Josef Wintrich, an influential Catholic jurist with roots in the Thomistic tradition, appeared to accept natural law as an independent standard of review.63 Since then, particularly when interpreting the Basic Law’s equality clauses, the Court has tended to speak in terms of “justice” rather than in the language of natural rights.64 Some constitutional cases, however, appear to defend such principles on a theory of legal positivism rooted in specified constitutional rights of lower and higher rank. In this reckoning, the value order of the Basic Law is an essential part of the positive legal order itself. Still, it is not altogether clear from the Court’s jurisprudence whether the suprapositivist norms underlying the constitution exist outside the text, reflect the express values of the text, or account for the hierarchical order the Court has discerned among the values constitutionalized by the framers. Whatever the answer, the hierarchical system of values found to inhere in the Basic Law is itself largely a product of constitutional interpretation. Unconstitutional Constitutional Amendments. As noted earlier in this chapter, the Federal Constitutional Court has empowered itself, under Article 79 (3), to review

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the substance of constitutional amendments that impair or diminish the immutable principles of the Basic Law.65 These essential elements include the principles of democracy, federalism, constitutional state, the social state, and the participation of the Länder in Germany’s national legislative process. They also embrace the “inviolable” principle of human dignity that “all state authority,” under the terms of Article 1 (1), has the “duty to respect and protect.” As early as 1953 the Constitutional Court proclaimed its authority to overturn a constitutional amendment on the basis of Article 79 (3).66 Since then, the Court has reviewed the substance of constitutional amendments allegedly infringing rights originally laid down in Articles 10 (privacy of correspondence and telecommunications), 16 (right to asylum), and 143 (suspending property rights under Article 14).67 More recently, in the Lisbon Treaty Case (2009; no. 6.6), the Second Senate of the Constitutional Court made the “constitutional identity” secured by Article 79 (3) a central interpretive device in its dicta expressing caution with respect to the Lisbon Treaty and the eu due to their democratic deficits. In one passage, the senate speaks of Germany’s “inalienable constitutional identity,” which it associates with the democratic or majoritarian parliamentary character of the governmental system created by the Basic Law.68 Although the senate found the act ratifying the Lisbon Treaty compatible with the Basic Law, it held unconstitutional the accompanying statute reducing the roles of the Bundestag and Bundesrat in eu affairs, thereby breaking what the senate deemed as an essential link in the chain of German democracy. In the senate’s view, there must be a direct relationship between the votes of the German people and national legislative policy. Accordingly, the senate ruled that, before the treaty could enter into force, a statute would have to be enacted granting to the Bundestag and Bundesrat sufficient rights of participation in the transfer of powers to eu institutions. The Basic Law permits the legislative transfer of sovereign powers to the eu, but it does not empower either parliamentary body to surrender any part of Germany’s constituent power to govern its own affairs. In the Court’s interpretation of Article 79 (3), the country’s national constitutional identity—particularly in the form of the federal, democratic, social, and constitutional state—cannot be altered by any treaty or constitutional amendment that compromises the principle of national selfdetermination or the essence of Germany’s sovereign statehood.69 (See Chapter 6 for a further discussion of the Lisbon Treaty Case.)

theory of basic rights The theory underlying the interpretation of basic rights in Germany is complex. Actually, it would be more appropriate to speak of theories rather than a single theory of rights. These theories include the negative and positive character of basic rights, the horizontal application of basic rights in the interpretation of private law, and normative theories rooted in various conceptions of the polity as a whole. We consider each in the order indicated.

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Dual Character of Rights. The Federal Constitutional Court has described guaranteed rights as both negative and positive as well as subjective and objective. A negative right is a subjective right to liberty. It protects individuals against the state, vindicating their right to unobstructed freedom and autonomy. A positive right, on the other hand, represents a claim the individual may have on the state. In the German understanding, positive rights embrace not only a right to certain social needs, such as a right to a minimum standard of living,70 but also a right to the effective realization of certain personal liberties. For example, in the Numerus Clausus I Case (1972; no. 10.12)71 universities were required to expand their facilities to make good on the basic right to choose one’s occupation. Yet, as we have seen in our discussion of objective values, personal freedom and autonomy are limited by the requirements of human dignity—a principle the state is duty-bound to foster and respect. The best example here is the Abortion I Case (1975; no. 7.4) in which the Court directed the state, as a general principle, to protect the life of the fetus against the constitutionally guaranteed personality right of the mother. Another way of describing the German perspective is to suggest that the Basic Law embodies a “facilitative” model of freedom as opposed to the American “privatizing” model deeply rooted in Lockean political theory. The facilitative model, as W. Cole Durham defi nes it, “[reflects] a tradition in which freedom tends to be seen not as the polar opposite of community, but as a value that must be achieved in synthesis with community.” In this setting, Durham continues, “it is natural for the state to assume a more affi rmative role in actualizing specific constitutional rights.”72 Although closely related, a positive right is not the same as an objective value. An objective value imposes a duty on the state. The state must create and maintain an environment conducive to the realization of basic values. In short, objective values speak to the organization of the state and society as a whole. A positive right, on the other hand, is an individual right or, perhaps more accurately, an entitlement that the individual may claim from the state. Reference to the positivity of rights implicates the par ticu lar situation of an individual, one who may need the state’s help to enjoy a basic right effectively, such as, for example, the right to the development of one’s personality. In this respect, the notion of a right under the Basic Law is broader than the concept of a right under the U.S. Constitution. A right in the German constitutionalist view embraces not only the right to be left alone, free of state interference, but also a claim to assistance in the enjoyment of the right. Horizontality of Rights. In the seminal Lüth Case (1958; no. 8.1)—a free speech decision—the Constitutional Court remarked that the Basic Law’s objective system of values “expresses and reinforces the validity of the [enumerated] basic rights.”73 The decision solidified the canonical status of the Basic Law as a hierarchy of objective values. The Court also spoke once again of the negative and positive character of rights. Lüth acknowledges that basic rights are indeed fundamentally negative rights against the state, suggesting that constitutional rights apply directly to public law. But Lüth goes on to say that the constitution’s objective values “reinforce the effec-

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tive power of these rights,” extending their reach indirectly into the domain of private law, affecting the relation between private parties. The indirect reach of constitutional rights into private law—their horizontal or third-party effect (Drittwirkung)— means that fundamental rights, as the Court occasionally puts it, have a “radiating effect” upon private law, requiring the latter to be interpreted in conformity with the former. Constitutional law seldom overrides private law but, rather, transforms it. More precisely, constitutional law influences the interpretation. In short, a third party—that is, one involved in a private legal dispute—may effectively invoke a constitutional value in his or her defense when sued under a provision of ordinary law, the application of which devalue the importance or significance of the constitutional value. The dispute in Lüth arose out of a lawsuit in which a popu lar fi lm director, Veit Harlan, won a civil damage award from Erik Lüth, a public information official who publicly advocated a boycott of one of the director’s fi lms. Harlan, a favorite of Nazi leaders, had produced notoriously anti-Semitic fi lms during the Th ird Reich. Exonerated after World War II, Harlan reemerged as a major fi lm director. Lüth, an active member of an organization of Christians and Jews, was outraged and sought to convince theater owners not to show Harlan’s fi lms while enjoining the public not to see them. A court found for Harlan under a provision of the Civil Code (Bürgerliches Gesetzbuch) obligating a person to compensate another for intentionally causing him or her harm contrary to “good morals.” In overturning the judgment, the Constitutional Court held that the ordinary court had given insufficient attention to the basic value of free speech, particularly in circumstances in which the community was being addressed on an important matter of general interest. In Lüth, the Court held that the ordinary court, by focusing exclusively on the director’s private interest, had ignored the effect of basic rights on private law. In this case, the ordinary court had overlooked the importance of the “objective value” or “value decision” folded into the Basic Law’s free speech provisions. Private legal arrangements, declared the Court, must be interpreted in the light of the special significance of free speech in a democratic state. The Court has taken the same view of other constitutionally cognizable rights, fi nding them equally applicable to third persons whose complaints arise out of private legal interactions like employment contracts or tortious conduct.74 There is little dispute in Germany over the acceptance of the horizontal effect doctrine. What is disputed is the extent to which a value decision or objective norm should influence the interpretation of private law. How much of a radiating effect the constitutional order of values should have in a par ticu lar dispute is to be determined by the judges of the ordinary courts. If a judge has adequately considered the significance of this order of values, the Federal Constitutional Court ordinarily allows his or her judgment to stand even if, in deciding the case de novo, the Court might have reached a different result. The Constitutional Court must be convinced that the ordinary court has not ignored the significance of the constitutional value.75 Substantive Rights Theories. The Constitutional Court’s search for a coherent theory of basic rights (Grundsrechtstheorie) has also evolved out of the concept of an

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objective system of values. Constructing such a theory, however, has not been easy. Drawing upon the broad and general language of the Basic Law, German constitutional theorists have advanced five normative theories of basic rights: liberal, institutional, democratic, value-oriented, and social.76 Each fi nds some support in the literature of constitutional theory; each draws some support from par ticu lar decisions of the Federal Constitutional Court.77 Liberal theory, based on postulates of economic liberty and enlightened self-determination, emphasizes the negative rights of the individual against the state. Institutional theory focuses on guaranteed rights associated with organizations or communities such as religious groups, the media, universities (research and teaching), and marriage and the family. Democratic theory is concerned with certain political functions incident to the rights of speech and association and the role of elections and political parties. Value-oriented theory places its emphasis on human dignity as it relates to rights flowing from the nature of personhood. Social theory, fi nally, highlights the importance of social justice, cultural rights, and economic security. Not surprisingly, scholars and judges have linked each of these theories to one or another of the conceptions of the state discussed earlier. It is possible through interpretation to regard one of these five theories as dominant. Yet each, like each conception of the state, has some basis in the text of the Basic Law. Like their counterparts in the United States, many constitutional theorists expend considerable energy debating whether or not there is an “objectively” correct interpretation of the Basic Law’s fundamental rights provisions. For its part, the Constitutional Court seems content to decide human rights disputes on a case-bycase basis, using what it regards as the most convincing argument or theory available in a given situation, an approach that is more acceptable in a system that does not abide by stare decisis. The justices can easily draw on the logic of any of the five theories because these theories are not wholly inconsistent with one another. Tensions between them do exist, and much of the work product of the Federal Constitutional Court described in this book is best understood as a playing out of these tensions.

interpretive modes and techniques Constitutional interpretation as practiced today by the Federal Constitutional Court draws on several of Germany’s competing traditions of law and judicial process. Thus, we observe styles of argument ranging from reliance on linguistic analysis to the invocation of suprapositivist norms purportedly underlying the Basic Law.78 Like the U.S. Supreme Court, the Constitutional Court employs a variety of interpretive modes, including arguments based on history, structure, teleology, text, interest balancing, and natural law. The one technique that is not formally followed in German constitutional analysis is that of stare decisis—which is unknown in the judiciaries of code-law countries—although judicial opinions, especially those handed down by the Federal Constitutional Court, typically brim with citations to prior cases. These approaches or modes of analysis have generated a critical literature in Germany as

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abundant as it is controversial. Like its equivalent in the United States, this literature is concerned largely with the legitimacy and justification of judicial decision making.79 Standard Interpretive Approaches. Any discussion of constitutional interpretation in Germany begins with the usual reference to the grammatical, systematic, teleological, and historical methods of analysis.80 In resorting to one or more of these methods, the Constitutional Court draws on the conventional approach to judicial decision making in German statutory law that originated in the formalism of the nineteenth-century school of jurisprudence known as pandectology.81 Grammatical, or textual, analysis, often the starting point of judicial interpretation, focuses on the ordinary or technical meaning of the words and phrases in a given constitutional provision. Occasionally, words and phrases are construed in a narrow legal sense, as in cases involving the rights of criminal defendants, to satisfy the technical requirements of the law. In other instances, they tend to be interpreted in terms of their plain meaning. Systematic—or structural—reasoning, by contrast, searches for the meaning of par tic u lar words and phrases by examining the constitution as a whole. Th is mode of reasoning stems from the Constitutional Court’s view of the Basic Law as a unified structure of values and relationships. Rather than focusing on the meaning of isolated words and phrases—a clause-bound approach to constitutional interpretation—systematic reasoning centers on their location within the text and the normative structure of the Basic Law as a whole. Teleological interpretation, on the other hand—a favored form of judicial reasoning in Germany—represents a search for the goal, purpose, utility, or design behind the constitutional text. Here the Court seeks interpretive guidance from the history and spirit of the constitutional order. Historical analysis, fi nally, seeks to shed light on the language and purpose of the constitutional text by reference to the Basic Law’s draft ing history. History by itself, however, seldom dictates the meaning of the constitution.82 At best, it performs the auxiliary function of lending support to a result arrived at by some other method of interpretation. Taken together, it is difficult to rank these approaches to interpretation in any fi xed order of priority. Like the U.S. Supreme Court, the Constitutional Court uses whatever approach or combination of approaches seems suitable in a given situation, except that arguments grounded in text, structure, or teleology generally prevail over those based on history.83 Constitutional justices often portray these conventional canons of interpretation as ways of discovering the “objective will”—to be distinguished from the subjective intentions—of the Basic Law’s framers. Teleological reasoning is even claimed to be objective in this sense, although the sources used in discovering the telos of the Basic Law are unclear. The constitution’s draft ing history is one source but, as just noted, history is mainly a supplementary aid to interpretation. In truth, the teleological approach is itself susceptible to the subjectivism that the canonical tradition would hope to avoid. Karl Heinrich Friauf observed that the teleological approach is a “gateway through which consideration of social policy and even the political philosophy of the justices flow into the interpretation of the constitution.”84 Justices and

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scholars do not always so readily acknowledge the creative character of constitutional interpretation. Nevertheless, most commentators are aware of the limits of these customary methods of interpretation. As Konrad Hesse, a former justice of the Constitutional Court, pointed out, the objective will thesis, so assiduously applied in statutory construction, is unsuited to constitutional interpretation.85 For one thing, no order of priority among these methods exists when their application leads to different results. For another, as Friauf suggested, there is no mechanical way of applying these methods to the open-ended words and phrases of the Basic Law. When these methods fail or if the Court is faced with a dispute involving competing constitutional values, it often resorts to ad hoc balancing. Indeed, the rhetoric of conceptual jurisprudence belies the “pragmatic, flexible and undogmatic” approach to constitutional interpretation that often characterizes the Court’s work.86 Competing Judicial Visions. The tension between objectivity and creativity that commentators have noticed in the Constitutional Court’s work product reflects a larger confl ict between competing visions of the judicial function. Two general approaches to judicial decision making emerge from the materials in this book. The fi rst approach, which distinguishes sharply between the functions of judge and legislator, is as familiar to Americans as it is to Germans. In this view, making law is not the same as interpreting it. The justice is bound to the prescribed norms of the constitution; his or her task is to discover the content of these norms and then to apply them uncompromisingly, a process known as theory of binding norms (Normgebundenheitstheorie).87 German no less than American justices have sought to perpetuate this traditional view of the judicial function. “The Court can only unfold what already is contained . . . in the constitution,” wrote Professor Ernst Friesenhahn, a former Constitutional Court justice.88 He continued, “As an independent, neutral body, which renders decisions solely in terms of law, [the Court] determines the law with binding effect when it is disputed, doubted or under attack. In doing so, [the Court] bears no political responsibility, though its decisions may have great political significance.”89 Justice Paul Kirchhof, whose twelve-year term on the Court expired in 2003, compared the judicial role to that of a soccer referee, one in which the justice merely enforces existing rules by throwing up red and yellow cards.90 Justice Gerhard Leibholz, an influential member of the Second Senate for twenty years—he served prior to the adoption of the twelve-year nonrenewable term of office—also drew a bright line between “politics” and the “political law” of the constitution.91 He distinguished between disputes of a “legal-political character which can be placed under legal constitutional control” and disputes of a “purely political nature . . . which cannot be decided according to the rules of Law.”92 Consistent with the conventional German approach to constitutional review, the Constitutional Court, in Leibholz’s view, is under a duty to explore every relevant fact and aspect of law in a case so as “to fi nd the truth objectively.”93 In a similar vein, Justice Helmut Simon, a former member of the First Senate, said that the Federal Constitutional

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Court “neither creates norms nor belongs to those political institutions responsible for the active structure of our common life or the future of the community. As an organ of the judiciary, its function, like that of other courts, is limited within the framework of a judicial proceeding, to the application and interpretation of laws originating in some other forum. . . . [It has no other power] except that of declaring acts of public authority constitutional or unconstitutional.”94 Nevertheless, a number of justices and constitutional scholars have acknowledged the inherent limits of Normgebundenheitstheorie. Professor Konrad Hesse, appointed to the First Senate in 1975 and the author of a leading treatise on constitutional law, is openly critical of the judicial function conceived as an objective process of discovery upon the application of a given methodology.95 For him, constitutional interpretation is an art flowing from the interplay between text and interpreter: the justice perceives the meaning of a constitutional text, as he or she reflects on the present, in the light of constitutional language drafted within a given historical context. In the view of Justice Ernst-Wolfgang Böckenförde, a former member of the Second Senate, constitutional interpretation requires a delicate balancing of competing values as well as competing theories of the polity expressed in such concepts as the liberal state, the social state, or the democratic state.96 Justice Dieter Grimm, a former member of the First Senate, is even more candid: “There is no pre-established difference between courts and legislatures which a par ticu lar constitution has to adopt and which an interpreter has to enforce regardless of what the constitution says. In addition, constitutional courts inevitably cross the line between law and politics [because] the constitution does not offer an unambiguous and complete standard for [reviewing the validity of legislation].”97 In Grimm’s view, this reality argues for less rather than more judicial intervention by the Constitutional Court in the political and legislative arenas.98 After eleven years on the Court, even Justice Leibholz wrote that it would be “an illusion and . . . inadmissible formalistic positivism, to suppose that it would be possible or permissible to apply . . . general constitutional principles . . . without at the same time attempting to put them into a reasonable relationship with the given political order.” Why? Because “[t]he constitutional judge cannot do anything except relate the rules [of the Basic Law] to political reality.”99 In 1971, as he was about to leave the Court, Leibholz remarked that “the existing confl ict between constitution and constitutional reality does not admit either of a purely legalistic solution in favor of the constitution, or of an exclusively sociological solution in favor of constitutional reality. Rather, this confl ict must be viewed as [a dialectical one] between normativity and existentiality.”100 Several justices have readily acknowledged that constitutional decision making requires statesmanship or a keen sense of political reality.101 Justice Leibholz, for example, conceded that the constitutional judge, “more than the ‘ordinary judge,’ [must] understand something of the essence of politics and of those social forces which determine political life.”102 Some of the justices have equated judicial statesmanship with the Court’s capacity to achieve consensus. President Wolfgang Zeidler,

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the presiding justice of the Second Senate from 1983 to 1987, during which time he served as the Court’s vice president, even ventured to observe that objectivity in constitutional interpretation manifests itself most clearly when the justices of a given senate, who collectively represent diverse career backgrounds, ideologies, and political attachments, manage to surmount their differences and reach unanimous agreement.103 Other justices see a dialectical process at work: the right answer in a given case is the product of collective decision making; a right or good decision is one that has banished disagreement in the solvent of group discussion and dialogue.104 Balancing and Optimization. Balancing rights and duties is a standard approach to constitutional interpretation in Germany, as it is in many other constitutional democracies, including the United States. Balancing is an attractive methodology. As Louis Henkin has written, it provides “bridges between the abstraction of principle and the life of facts. It bespeaks moderation and reasonableness, the Golden Mean.”105 Although the balancing approach to constitutional interpretation in the United States is controversial on and off the Supreme Court, it is the preferred approach of the Federal Constitutional Court, an early and dramatic example of which is the famous Lüth Case of 1958 (the seminal free speech decision featured in Chapter 8). In the hands of the Federal Constitutional Court, balancing implicates the so-called principle of optimality or optimization. As Robert Alexy, Germany’s leading theorist of constitutional balancing, writes, it is “one aspect of what is required by [the] more comprehensive principle of proportionality (Verhältnismässigkeit).”106 It is a matter of optimizing or maximizing competing constitutional rights or values. Alexy treats constitutional rights as “optimization requirements” that he identifies with principles instead of rules. As optimization requirements, he continues, “principles are norms requiring that something be realized [that is, competing rights] to the greatest extent possible, given the factual and legal possibilities.”107 Alexy emphasizes that balancing, as an approach to constitutional interpretation, depends above all on viewing constitutional protections as expressions of broader values or principles and not as narrow, subjective rights held by an individual. As noted earlier in our discussion of rights theories, this is precisely how the Basic Law’s fundamental rights principles have come to be understood. Interpreting rights as objective values or principles necessarily puts considerable discretion in the hands of the Federal Constitutional Court’s justices, who have been liberated from the civillaw orientation of the judiciary, charged as it is with the narrow project of interpreting and applying doctrine found in legislation. Federal Constitutional Court justices decide upon several competing values in a par ticu lar case, a fact-fi nding undertaking that looks more like common-law judging. The Federal Constitutional Court’s decisions bear the imprint of the common-law and civil-law traditions. Yet, the contextsensitive discretion that characterizes common-law judging leads to the concerns about democratic legitimacy that the restrained role played by civil-law judges is meant to address. These concerns are amplified by a balancing analysis, leading one commentator to conclude that a balancing analysis is “no more protective [of con-

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stitutional rights] than the judges who administer it.”108 Bernhard Schlink, perhaps the leading critic of Germany’s tradition of balancing in constitutional law, argues that rights susceptible to balancing are not absolute protections at all.109 But, from the perspective of the proponents of balancing on the Constitutional Court, this is the point: few rights under the Basic Law are absolute; most are qualified by reservation clauses, with the result that state infringements of these rights trigger the kind of proportionality review described next. Principle of Proportionality. The principle of proportionality, like the concept of an objective order of values, is crucial to any understanding of German constitutional decision making. The Basic Law contains no explicit reference to proportionality but, as just noted, the Federal Constitutional Court has elevated proportionality to a high constitutional principle in its own right, serving as a major tool in assessing the validity of legislation impinging on fundamental rights. The Court has described proportionality reasoning as indispensable in a constitutional state. Accordingly, proportionality is not strictly an approach to interpretation; rather, the principle is employed to justify limits on democratic rights and fundamental freedoms. The Court applies what is essentially a means/ends test for determining whether a par ticu lar right has been overburdened in the light of a given set of facts. Except for the Constitutional Court’s effort to optimize competing constitutional rights, the German approach is not unlike the methodology often employed by the U.S. Supreme Court in fundamental rights cases. In its German version, proportionality reasoning is a three-step process. First, whenever Parliament enacts a law impinging on a basic right, the means used must be appropriate (Eignung) to the achievement of a legitimate end. Because rights in the Basic Law are circumscribed by duties and are often limited by objectives and values specified in the constitutional text, the Constitutional Court receives considerable guidance in determining the legitimacy of a state purpose. The sparse language of the U.S. Constitution, by contrast, often encourages the Supreme Court to rely on nontextual philosophical or policy arguments to determine the validity of a state purpose allegedly impairing a constitutional right. Second, the means used to achieve a valid purpose must have the least restrictive effect (Erforderlichkeit) on a constitutional right. Th is test is applied flexibly and must meet the general standard of rationality. As applied by the Constitutional Court, it is less than the “strict scrutiny” and more than the “minimum rationality” test of American constitutional law. Finally, the means used must be proportionate to the stipulated end. The burden on the right must not be excessive relative to the benefits secured by the state’s objective (Zumutbarkeit).110 Th is three-pronged test of proportionality seems fully compatible with, if not required by, the principle of practical concordance. Practical Concordance. The canon that holds that protected constitutional values must be harmonized with one another when they confl ict is known as the principle of practical concordance (praktische Konkordanz). Once again, it requires the

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optimization of competing rights. In short, one constitutional value may not be realized at the expense of a competing constitutional value. In the German view, constitutional interpretation is not a zero-sum game. The value of free speech, for example, rarely attains total victory over a competing constitutional value such as the right to the development of one’s personality. Both values must be preserved in creative unity. Professor Hesse wrote, “The principle of the constitution’s unity requires the optimization of [values in confl ict]: Both legal values need to be limited so that each can attain its optimal effect. In each concrete case, therefore, the limitations must satisfy the principle of proportionality; that is, they may not go any further than necessary to produce a concordance of both legal values.”111 The application of the principle of practical concordance may be illustrated by reference to two religious freedom cases. In the Classroom Crucifix II Case (1995; no.  9.7) the Court announced that Article 7 (allowing religious instruction in the public schools) and Article 4 (securing freedom from religious indoctrination) “have to be seen together and reconciled with each other through interpretation, since it is only concordance of the aspects of legal protection under both articles that can do justice to the decisions contained in the Basic Law.”112 The Court sought to reconcile the confl icting values by requiring public schools to remove the crucifi x from classrooms attended by objecting students but to permit its display in classrooms where such students are not present. The Muslim Headscarf Case (2003), by contrast, involved a challenge to a school regulation banning teachers from wearing headscarves. Here the positive freedom of a Muslim teacher to cover her head collided with the negative freedom of students who might object on the ground of their faith. The Court required Land legislatures to resolve the tension, saying that legislators “must seek a compromise reasonably acceptable to everyone. . . . [Constitutional] provisions must be seen together, and their interpretation and influence must be coordinated with each other.” In this area, the Court noted, policies may differ from Land to Land, depending on “school traditions, the composition of the population by religion, and whether [the population] is more or less strongly rooted in religion.”113 Passive Virtues and Dialogue. Alexander Bickel maintained that the U.S. Supreme Court is often at its best when it declines to exercise jurisdiction it clearly has. These evasive strategies, which he calls “passive virtues,” include rules on standing, case and controversy requirements, the political question doctrine, and other prudential techniques for avoiding constitutional controversies.114 There are no exact equivalents to these rules in Germany. As often noted in Chapter 1, the Court may not decline to decide cases properly before it. One of its functions in the German system is to resolve even doubtful questions of constitutionality, not to avoid them. Yet, even while accepting jurisdiction, the Court adheres to canons of restraint that grant considerable latitude to legislative and executive decision makers.115 One of these, familiar to Americans, is the Court’s practice of upholding legislation when it can plausibly be interpreted to conform with the constitution (verfassungskonforme Auslegung) even when faced with an equally plausible argument against its

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validity.116 In addition, although the Court does not decline to resolve cases on their merits merely because they involve sensitive issues of foreign or military policy, it has tended to defer to the executive when the executive exercises its authority pursuant to international treaties. As a matter of principle, the Court has declared that the deployment of German soldiers in armed operations abroad requires parliamentary approval,117 but even here the Court has broadly construed the executive’s discretionary authority in military affairs. On the domestic front, fi nally, the Court has taken an equally broad view of the government’s discretionary authority to regulate aspects of the economy when necessary under the terms of Article 72 (2). The Court’s reluctance to invalidate laws passed under this provision is not unlike the Supreme Court’s deferential review of socioeconomic legislation under the due process clauses of the U.S. Constitution. In one significant development in the field of basic rights, however, the Court all but abdicated its authority to independently review secondary Eu ropean Community laws. In a case known as Solange I (1974) the Court famously ruled that Eu ropean Community law could be challenged in concrete judicial review proceedings if its compatibility with fundamental rights under the Basic Law was in doubt.118 The Court took the position that such challenges were permissible so long as (solange) the protection of fundamental rights in the Eu ropean Community was below the level of protection in Germany. Twelve years later, in Solange II (1986; no. 6.4), the Court ruled that fundamental rights “in conception, substance, and manner of implementation” in the Eu ropean Community are essentially equal to the protection of basic rights in Germany.119 For this reason the Court announced that it would no longer review Community regulations or directives in the light of these basic rights. The Court reaffi rmed Solange II in the Banana Market Regulation Case (2000), declaring as noncognizable—for the fi rst time—an administrative court reference questioning the constitutionality of regulations on the marketing of bananas as a violation of occupational and property rights.120 The Second Senate declared: “As long as the European Communities generally ensure the effective protection of fundamental rights and generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will . . . no longer review [European Community legislation] by the standard of fundamental rights contained in the Basic Law.”121 The admissibility of a challenge to secondary Community law would thus depend on a clear showing that the fundamental right allegedly violated “is not generally ensured” within the European Community. In the light of the Maastricht Treaty Case (1993; nos. 5.5 and 6.5) and the Lisbon Treaty Case (2009; no. 6.6), however, primary European Community or European Union law—the treaties—are still subject to constitutional review to assess whether they infringe or erode Germany’s “constitutional identity” as specified by Article 79 (3).122

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sources of interpretation Unwritten Principles. Almost everything said so far about the nature of the Basic Law as a whole or of basic rights in par ticu lar raises profound problems of interpretation. Principles and theories such as the Basic Law’s unity, its objective value dimension, its constitutionalization of private law, and the positivity and negativity of rights have served to confer substantial interpretive authority on the Federal Constitutional Court. These principles and theories have been judicially created, but not out of whole cloth. In the Court’s view, as noted earlier in this chapter, they reflect the normative realities underlying the Basic Law, realities rooted in the dialectic between the liberal, socialist, and Christian natural-law traditions that shaped the original document, particularly the provision that subjects the legislature to the “constitutional order” and the executive and the judiciary to “law and justice” (emphasis added). Owing largely to neo-Thomist influences, the Court affi rmed the existence of “supra-positive principles of law” (überpositive Rechtsgrundsätze) that bind legislators and other political decision makers.123 But, as George Fletcher has pointed out, its later accents on individual autonomy, moral duty, and human rationality echo equally strong neo-Kantian influences,124 just as the powerful strands of social welfare theory in its case law may be said to reflect socialist egalitarian thought. These orientations have converged to produce a distinctive vision of the human person. In the Life Imprisonment Case (1977; no. 7.3) the Court defined the human person as a “spiritual-moral being” (vom Menschen als einem geistig-sittlichen Wesen) whose intrinsic dignity “depends on his [or her] status as an independent [personality].”125 But the independence affi rmed here is far from the autonomous individualism of American constitutional law. “The image of man in the Basic Law,” the Court has declared, “is not that of an isolated, sovereign individual; rather, the Basic Law has decided in favor of a relationship between individual and community in the sense of a person’s dependence on and commitment to the community, without infringing upon a person’s individual value.”126 These words have been a constant refrain in the Court’s jurisprudence. Similar lines of thought can be discerned in its view of the polity, one that rejects the self-regarding individualism of bourgeois liberalism as well as the collectivism of Marxism. Much of the Court’s case law treated in the following chapters identifies a polity that reminds Americans of Lincoln’s image of a fraternal democracy. As the abortion cases and many free speech decisions show, the social context in which men and women discover the source of their dignity—and human flourishing—cannot be ignored in a properly governed society. Accordingly, human dignity resides not only in individuality but in sociality as well. Written Text. The major source of constitutional interpretation in Germany is the documentary text adopted by the Länder legislatures in 1949 along with fi ft y-nine amendatory acts ratified between 1951 and 2011. The words and phrases of the constitution mean what they say and the Court takes them seriously. It rarely interprets

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constitutional language in a way radically different from the common understanding of the text. But as suggested in previous subsections, the Court has employed a wide range of interpretative approaches and guides to expound the meaning of the written text. These include legalistic modes of analysis along with an effort to determine the general purpose of textual provisions in the light of their historical, philosophical, and sociomoral determinants. But the constitution includes more than the documentary text. What might be called the working text arguably extends to long-established practices whose attenuation would raise serious constitutional issues. These practices include, under Germany’s system of proportional representation, the requirement that a political party garner at least 5 percent of the popu lar vote as a condition of entering national or state parliaments. Although the Court has never declared that proportional representation itself is constitutionally required,127 its abolition after sixty years of unbroken observance—except for the fi rst postreunification all-German election—could easily be contested on constitutional grounds, especially in the light of the Court’s solicitude for the rights and representational value of minority parties. An unwritten norm previously unmentioned that is now a solid part of the working text is the principle of federal comity (Bundestreue), an innovative doctrine the Court has inferred from the Basic Law’s federal structure. It requires more than the observance of formal constitutional legality; it also requires both levels of government to consult with each other when their interests confl ict or overlap.128 A 1992 change in the Basic Law actually formalized the principle of comity in the field of European affairs. When making policy in the context of the European Union, the federal government is required to keep the Bundesrat informed of its dealings.129 Even when acting under one of the European Union’s exclusive powers the federal government, according to Article 23 (4), “shall take the position of the Bundesrat into account.” Given the Court’s jurisprudence of federal comity, it seems likely that the Bundesrat would be able to validly petition the Court to hear a case when arguing that its position was not adequately taken into account by the national government. Historical Materials. The Constitutional Court occasionally draws upon historical materials to illuminate the general purpose behind a constitutionally ordained concept, value, or institution. Th is inquiry into original purpose is not always clearly differentiated from an inquiry into original intent. When appealing to purpose the Court usually considers the background or circumstances out of which a par ticu lar constitutional provision emerged. Because so many of the Basic Law’s words and phrases have been lifted from nineteenth- and twentieth-century constitutions, both state and national, the Court often fi nds it useful to explore the reasons for their incorporation into these earlier documents. For example, in determining whether the inviolability of the “home” (Wohnung) within the meaning of Article 13 (1) extends to business offices, the Court consulted the debates and commentaries on similar provisions incorporated into the Frankfurt Constitution of 1849, the Prussian Constitution of 1850, and the Weimar Constitution of 1919.130

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While admissible as sources of interpretation, these older documents pale in comparison to the significance of the Basic Law’s legislative history. Th is history includes the report of the Herrenchiemsee Conference, the body charged with preparing a working draft of the Basic Law.131 The most fertile source for examining the background and purposes of the Basic Law, however, is the daily stenographic record of the debates and decisions of the Parliamentary Council. The protocols include the proceedings of all the council’s specialized committees, together with the arguments, decisions, and voting records of its Main Committee and plenary sessions.132 The Bahá’í’ Religious Community Case (1991) is a prominent example of the supportive role the Basic Law’s legislative history plays in the interpretation of par ticu lar provisions. The Court found in the deliberations of the Parliamentary Council that the right to associate for religious or ideological purposes was encompassed within the meaning of Article 4 (1), which guarantees “freedom of faith.”133 The Court seems to fi nd the Basic Law’s legislative history particularly helpful in cases involving confl icts between levels and branches of government. For example, in the famous Flick Case (1984), which arose out of a notorious tax and party fi nance scandal, the Court invoked Parliamentary Council debates to show that a parliamentary investigative committee established under Article 44 of the Basic Law could require the executive to surrender all the relevant records in the case.134 In the equally prominent Parliamentary Dissolution I Case, (1983) the Court’s majority concluded that there was nothing in the Parliamentary Council’s proceedings that contradicted its view that the federal president could dissolve Parliament on the request of the chancellor even though the latter had the backing of a slim parliamentary majority.135 The dissenting opinion disputed the majority’s view and relied on lengthy quotations from the Council’s members.136 Th is exchange illustrates, as in American constitutional debates, that legislative history can be invoked to support more than one side of an argument over the constitution’s meaning. Judicial Precedent. In Germany’s codified legal system, judicial decisions do not qualify as official sources of law. But constitutional law is different. First, while judicial rulings apply only to the parties before them, the Federal Constitutional Court’s decisions are binding on all courts and constitutional organs.137 Second, all abstract and concrete review cases, along with decisions on whether a rule of public international law is an integral part of federal law, enjoy the force of general law. In fact, any decision declaring a law null and void or compatible or incompatible with the Basic Law must be published in the book of federal statutes known as the Federal Law Gazette,138 a practice that underscores the Court’s character as a negative legislator. Although it rejects the principle of stare decisis as such, its opinions, like those of other high courts, are studded with citations to its case law. In the Muslim Headscarf Case (2003), for example, the Court supported its reasoning by reference to no fewer than twenty-six decisions handed down between 1957 and 1999.139 Formally, judicial precedents do not bind the Constitutional Court; rather, they are marshaled to show that a doctrinal outcome in a given case is consistent with its previous interpretations

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of the Basic Law. The German understanding of the constitutional state principle—a central pillar of the Basic Law—requires a coherent body of judicial doctrine in the interest of legal certainty, predictability, and the necessity of creating a stable constitutional order. In actual practice, however, the similarities in the uses (or misuses) of precedent by the Court and other courts treated in this book are more striking than the differences.140 Academic Literature. The work of legal scholars carries as much if not more weight in the Basic Law’s interpretation than do judicial precedents. The Court relies heavily on treatises and commentaries of established legal professionals. Here it must be remembered that in code-law countries such as Germany, enacted law was the work product of legal scholars, historians, and theorists. It is no surprise, therefore, that the “ruling opinion” (herrschende Meinung) in the literature takes pride of place in the interpretation of the Basic Law. The literature is published in highly reputable law journals such as Neue Juristische Wochenschrift, Monatschrift für Deutsches Recht, Juristenzeitung, and Zeitschrift für ausländisches öffentliches Recht und Völkerrecht. These and other German law journals are edited not by amateurs—that is, law students—as in the United States, but by leading practitioners, judges, and professors of law. (Student-authored notes in these journals would be unheard of in Germany’s legal culture.) One highly regarded and often-cited commentary on the Basic Law is the loose-leaf edition of Kommentar zum Grundgesetz by Theodor Maunz, Günter Dürig, and Roman Herzog.141 Herzog was president of the Federal Constitutional Court from 1987 to 1994 and president of the Federal Republic from 1994 to 1999. Muslim Headscarf manifests the Court’s dependence on the scholarship of the professoriat and other legal experts. In its closely reasoned opinion on the meaning of constitutional provisions relating to the free exercise of religion, the Court relied heavily on interpretive commentaries by major writers on the religion clauses such as Karl Brinkman, Axel von Campenhausen, Peter Badura, Christian Starck, Joseph Listl, Roman Herzog, and Ernst-Wolfgang Böckenförde.142 (Böckenförde, like Herzog, was a former justice of the Federal Constitutional Court.) These authors are repeatedly cited as authoritative interpreters of the Basic Law. Perhaps a better measure of the importance of legal scholarship relative to judicial precedents is the standard practice of documentation in leading constitutional commentaries. For example, in the oft-cited commentary by Hermann v. Mangoldt, Friedrich Klein, and Christian Starck, only 90 of 374 footnotes in the paragraphs devoted to Article 4 (1) and 4 (2) on religious freedom include references to prior case law, and many of these precedents are employed to justify the basic orientation of the commentators.143 By contrast, a comparative examination of two leading American commentaries shows an almost exclusive reliance on the case law of the Supreme Court.144 International and Comparative Materials. One of the Basic Law’s main features, as the materials in Chapter 6 highlight, is Germany’s commitment to peace and internationalism. Th is commitment is expressed in constitutional provisions that bind

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Germany to participation in the development of the European Union (Article 23), permit the transfer of sovereign power to international institutions (Article 24), emphasize the primacy of international law (Article 25), and criminalize any preparation for a war of aggression (Article 26). Article 25 merits special attention. It declares that the “general rules of international law shall be an integral part of federal law [and] shall take precedence over [national] law and directly create rights and duties for the inhabitants of the federal territory.” Accordingly, these rules are part of Germany’s constitutional order and thus binding on all branches and levels of government. So important are these rules that the Basic Law itself requires any court to obtain a decision from the Federal Constitutional Court whenever, in the normal course of litigation, its judges doubt whether a general rule of international law is part of federal law or whether it directly creates rights and duties for individual persons.145 Under this procedure the Court frequently reviews or consults treaties, international agreements, and the decisions of international tribunals.146 The Federal Constitutional Court’s opinions contain far fewer references to the decisional materials of foreign constitutional tribunals, conveying the impression that the constitutional experience of other advanced democracies has little relevance to the interpretation of the Basic Law. It would be misleading, however, to conclude from this that the justices are oblivious to or uninfluenced by non-German constitutional materials. Many of the justices have studied or taught abroad, several in U.S. law schools, and have ready access within the Court to full sets of judicial reports from foreign and international tribunals, including the U.S. Supreme Court Reports. In par ticu lar, the Constitutional Court frequently cites the decisions of the European Court of Human Rights as an interpretive aid in defi ning the reach of constitutional rights in Germany. The European Convention on Human Rights does not have the status of constitutional law in Germany. Nevertheless, the Constitutional Court has adopted the view that “the content and state of development of the Convention are to be taken into consideration insofar as this does not lead to a restriction or derogation of basic rights protection under the Basic Law.”147 As with its decision in the Görgülü Case (2004; no. 6.3), the Constitutional Court also continues to remind ordinary courts of their obligation to follow, when and where applicable, the decisions of the Human Rights Court. In addition, the Constitutional Court’s jurisprudence now and then includes words, phrases, and sentences that suggest familiarity with the work product of other national courts of judicial review. In the famous Lüth Case (1958; no. 8.1), for example, Germany’s seminal free speech decision, the Constitutional Court’s First Senate quoted Justice Cardozo’s celebrated line that speech is “the matrix, the indispensable condition of nearly every other form of freedom,” but without citing Palko v. Connecticut, the source of the quote. In yet another free speech decision—the wellknown and controversial Spiegel Case (1966; no. 8.10) four justices cited foreign constitutional case law on whether reporters can give evidence in criminal proceedings involving treason charges.148 In the interpretation of the Basic Law, the Court seldom relies on foreign case law; rather, it deploys comparative references either as negative

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examples of doctrines or practices that should be avoided or to support positions already arrived at through the standard methods of textual, systematic, teleological, or historical analysis. Other examples of the Constitutional Court’s use of foreign legal and decisional materials are readily available. A study published in 1974 recorded twenty-four cases in which the Constitutional Court drew upon foreign judicial cases, mainly from the United States, Switzerland, France, and England.149 The Court is inclined to draw support from the constitutional practices and decisional materials of other advanced parliamentary governments facing related problems of governance under comparable constitutions,150 or, alternatively, to cite foreign practices or constitutional judicial decisions it would not wish to follow. In the recent Lisbon Treaty Case (2009; no. 6.6) the Court looked to the positive and negative electoral experiences of several constitutional democracies in measur ing the sufficiency of the European Union’s system of political representation against the requirements of the Basic Law. Since 1971, when the Federal Constitutional Court Act was amended to permit dissenting opinions, dissenting justices in par ticu lar have found guidance in foreign constitutional case law. In their dissent from the Court’s restrictive abortion decision of 1975, Justices Wiltraut Rupp-von Brünneck and Helmut Simon referred to Roe v. Wade; Justice Martin Hirsch cited Vance v. Terrayas, an American citizenship case, in dissenting from the Court’s decision in the Denaturalization II Case (1980) (upholding the denial of citizenship to an expatriate); and Justice Ernst-Wolfgang Böckenförde in his Party Finance V Case (1986) dissent cited Bob Jones University v. United States, a case involving a tax deduction dispute and contributions to political parties from “charitable institutions.”151 Other references by the Federal Constitutional Court to foreign judicial decisions could be cited, but in the light of its total workload these instances, as already noted, are infrequent. And whether such decisions are cited or discussed depends on whether the particular rapporteur (Berichterstatter) in the case is inclined to examine comparable foreign case law in the draft opinion that he or she prepares for the consideration of the full senate. Rarely, however, will a rapporteur pursue a full-scale engagement with the judicial reasoning of a foreign tribunal on a matter of constitutional interpretation under the Basic Law. Rather, he or she will cite an idea or ruling from another national court’s constitutional case law mainly to reinforce the holding proposed in the Votum. But there is no serious debate in Germany, as there is in the United States, over the propriety of citing foreign constitutional case law, when and where feasible, in the decisions of the Federal Constitutional Court.152

conclusion Th is chapter began with a description of the new constitutionalism brought about by Germany’s Basic Law. It continued with an account of the state’s political organization along with a discussion of the various principles of the constitutional order, an

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order that joins the Sozialstaat to the Rechtsstaat while enthroning federalism and a party democracy empowered to defend itself against its internal and external enemies. Other features of the Basic Law’s moral framework include its elevation of human dignity into the constitution’s master value, its corresponding limits on popular sovereignty, its list of individual rights and communal responsibilities, its submission of the legislature to the “constitutional order” and the judiciary and executive to “law and justice,” and its prohibition of any formal amendment that would erode Germany’s constitutional identity. In turn, the Federal Constitutional Court has adopted interpretive theories that reflect the deeper meaning of these factors. These theories embrace the concept of the constitution’s unity, the subjective and positive character of guaranteed rights, the objective and hierarchical order of basic values, and modes of analysis that emphasize systematic and goal-oriented teleological reasoning largely independent of the intentions of the Basic Law’s framers. Taken together, these features and theories underscore the absolute supremacy of the Basic Law over ordinary law. Finally, as subsequent chapters show, Germany’s new constitutionalism has converted the principle of constitutional supremacy into one of judicial interpretive supremacy.

3 Federalism ∂ Federalism in Germany is not a creation of the Basic Law. Modern German history can be traced through successive stages of economic and political unity, beginning with the Confederation of 1815 and ending with the highly unified federation represented by the Weimar Republic.1 The desire for economic integration provided the driving force behind the historical development of German federalism. Customs unions, uniform economic legislation, and laws designed to protect industry against parochial pressures helped to create a common market and a common identity among a people fractured by a multiplicity of sovereign kingdoms and principalities.2 Yet, much of this integration—as well as the political unity that accompanied it—was achieved under the dominance of Prussia, a German state known, variously, for its militaristic and authoritarian tradition, its efficient bureaucracy, and its innovativeness (especially with respect to higher education). After World War II, the Allies sundered Prussia in the hope of establishing greater equality among the German states. The result was the Federal Republic of Germany, with Article 20 (1) of the Basic Law mandating the establishment of the Republic as a democratic and social federal state. Nor is German federalism a fi nished product. The federalism of the Basic Law seems best characterized by change, not constancy. Th is should come as no surprise to those familiar with American constitutional history. American federalism also has undergone epochal shifts. In the last century alone the federalism pendulum has swung from the Supreme Court’s New Deal and civil rights–era jurisprudence, which led to expansive federal and centralizing authority, to the pro-state jurisprudence of Chief Justice William Rehnquist’s “New Federalism” in the 1990s. In 2006 many of the Basic Law’s federalism provisions were significantly overhauled in what has been called the “most comprehensive reform of the Basic Law . . . since its inception in 1949.”3 Focusing primarily on the power of the Bundesrat and the distribution of legislative competence between the Bund and the Länder, the 2006 federalism amendments were the fi rst of three anticipated phases of federalism reform. The second phase took place in 2009 with the passage of several constitutional amendments. Here the focus was on the sections of the Basic Law (Articles 104a to 115) known as the fi nancial constitution (Finanzverfassung), a confounding and complicated web of rules and formulae governing the distribution of taxes and revenue between levels of government. A third reform proposal would aim at redrawing the boundaries of the Länder. Its purpose is mainly to promote regulatory efficiency and create economies of scale through the merger of Länder, such as Brandenburg and Berlin. Up to now, attempts at merging the two Länder outside a broader reform

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of the constitution have failed. At this writing, too, reforms in the fi nancial constitution have not been fully implemented, and the 2006 reforms have not generated a significant body of decisions from the Constitutional Court. For this reason, we will open this chapter with a focus on the Federal Constitutional Court’s established jurisprudence with respect to territorial organization and then proceed to discuss aspects of German federalism that were unaffected by the reforms of 2006. Then, following a brief examination of the historical, political, and jurisprudential factors that led to the reforms, the areas impacted by the 2006 amendments will be considered. The 2006 reforms were in many instances a reaction to Federal Constitutional Court decisions. These decisions will guide our exploration of the federalism reforms ratified in 2006 and 2009.

territorial or ga ni zation Federalism in Perpetuity. The principle of federalism (alongside democracy, the constitutional state principle, the social state principle, and human dignity) is permanently incorporated into the Basic Law. Article 79 (3) prohibits any amendment to the Basic Law that would affect the division of the federal territory into Länder. Germany now comprises sixteen constituent states. Prior to reunification West Germany included the states of Baden-Württemberg, Bavaria, Bremen, Hamburg, Hesse, Lower Saxony, North Rhine–Westphalia, Rhineland-Palatinate, Saarland, and Schleswig-Holstein. West Berlin, although functioning in many respects as the eleventh West German state, de jure remained a protectorate of the three Western allies. Five new Länder were created out of the former East German territory and were annexed by the Federal Republic in 1990: Brandenburg, Mecklenburg-Vorpommern, Saxony, Saxony-Anhalt, and Thuringia. Alongside these new Länder, a unified Berlin emerged as a state as well. Only Bavaria and the city-states of Hamburg, Berlin, and Bremen correspond to their historical borders. The remaining states were artificially carved out of the western and eastern postwar occupation zones. The reorganization of the southwestern states in 1952, the subject of the Southwest State Case (featured below), has been the only major change in the borders of the Federal Republic’s constituent states. Several proposals have been advanced over the years to consolidate some of the existing states into larger and more integrated political and economic units, but none of these master plans for federal reorganization has succeeded.4 As Philip Blair noted with regard to the original West German Länder, the states “have taken root so fi rmly that [such plans] can scarcely be regarded as still a practical possibility.”5 In postreunification eastern Germany, however, there are plans for the merger of Brandenburg and Berlin, even though a 1996 referendum on joining the two states (Länderfusion) was defeated by the voters in Brandenburg. Since the failure of the 1996 referendum the two states have pursued a comprehensive strategy of regional cooperation across a broad range of fields, including broadcasting, education, research, culture, and judicial affairs. Th is gradual approach to territorial

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integration and reorganization may establish the groundwork for another referendum that would fi nally merge the two states. At the heart of the pressure to reorganize the Länder boundaries are the values established by Article 29 of the Basic Law, which provides that the federal territory may be reorganized to “ensure that each Land be of a size and capacity to perform its functions effectively.” Any proposal for redrawing state boundaries, including the creation of a new Land, needs the sanction of federal law and the approval of the majority of the voters in the affected territories. The proposal will not take effect if the majority in any of the affected states rejects it. Nevertheless, a proposal for reorganization can be salvaged if it satisfies two conditions. First, the reorganization must enjoy a two-thirds majority of the voters in the discrete portion of the state affected by the reorganization. Second, the statewide rejection of the proposal may not have achieved a two-thirds supermajority. Southwest State arose out of the decision of the Allied powers to divide the former states of Württemberg, Baden, and Hohenzollern into the three southwestern states of Baden, Württemberg-Baden and Württemberg-Hohenzollern. Germans bridled over this arrangement because it split up two historical states, partitioning relatively integrated political communities. Article 118 of the Basic Law sought to cope with this situation. A lex specialis, it modified the general policy of Article 29 by authorizing the southwestern states to reorganize themselves by mutual agreement.6 The most likely possibilities were the restoration of the former states of Württemberg, Baden, and Hohenzollern, or the consolidation of the three existing states into a single state. Unable to agree on a plan of reorganization, the states effectively turned the matter over to the federation. Article 118 empowered the federation to reorganize these states by ordinary legislation in the absence of a tristate agreement.7 Southwest State arose under an earlier version of Article 29, which has since been amended three times. In its original form it required the reorganization of the federal territory as a whole by federal law. A majority of voters in a region affected by a proposed boundary change had to approve the proposal in a referendum. In addition, to fulfi ll the constitutional mandate for reform, the earlier version of Article 29 (4) required the Bundestag to reintroduce the law if the reform should be rejected by the local voters in the referendum; if the law were to be reenacted by the Bundestag, a majority of voters would have to approve the measure in a national referendum. Article 118, as noted, circumvented these procedures with respect to the reorganization of the southwestern states. 3.1 Southwest State Case (1951) 1 BVerfGE 14 [When tristate negotiations collapsed in November 1950, Parliament enacted two reorganization statutes. The fi rst extended the terms of the WürttembergHohenzollern and Baden legislatures, a measure designed to avoid new state elections in April 1951 because the territorial reorganization of the states seemed

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imminent, making new legislative sessions for the parliaments in the old states unnecessary. The second specified the procedures by which the proposed federally sponsored referendum would be conducted. The proposal to merge the three states into the single state to be called Baden-Württemberg would take effect so long as a majority of voters in three of four regional electoral districts established for purposes of the referendum approved. In a proceeding that invoked the Court’s abstract judicial review jurisdiction as well as its federal-state confl ict jurisdiction, the small and cohesive 150-year-old state of Baden challenged the constitutionality of these statutes on the ground that they violated the principles of democracy and federalism: democracy because the electoral districts were created in such a way as to dilute the votes of persons casting ballots in Baden; federalism because the federal government is powerless to tamper with the legislature of an independent state. The result was the Court’s fi rst major decision and the fi rst decision in which the Court set aside a federal law.]

∂

Judgment of the Second Senate. . . . D. [First Reorganization Law]. . . . 2. . . . An individual constitutional provision cannot be considered as an isolated clause and interpreted alone. A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions. Taken as a whole, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate. Article 79 (3) makes it clear that the Basic Law makes this assumption. Thus, this Court agrees with the statement of the Bavarian Constitutional Court: “That a constitutional provision itself may be null and void is not conceptually impossible just because it is a part of the constitution. There are constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the constitution that they also bind the framers of the constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles.” From this rule of interpretation it follows that any constitutional provision must be interpreted in such a way that it is compatible with those elementary principles and with the basic decisions of the framers of the constitution. Th is rule applies also to Article 118. 3. The Basic Law has chosen democracy as the basis for the governmental system (Articles 20, 28): The Federal Republic is a democratic, federal state. The constitutional order in the states must conform to the constitutional state principle and democratic principle within the meaning of the Basic Law. The federation guarantees that the constitutional order of the states will conform to this political order. As prescribed by the Basic Law, democracy requires not only that Parliament control the government but also that the right to vote of eligible voters is not removed or impaired by unconstitutional means. . . . It is true that the democratic principle does not imply that the term of a state legislature must not exceed four years or that it can-

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not be extended for important reasons. But this principle does require that the term of a state legislature, whose length was set by the people in accepting their constitution, can be extended only through procedures prescribed in that constitution (i.e., only with the consent of the people). If the federation prevents an election scheduled by the state constitution without the consent of the people of the state, then it violates the fundamental right of a citizen in a democratic state, the right to vote, as protected by Article 28 (3) of the Basic Law. 4. Federalism is another of the Basic Law’s fundamental principles (Articles 20, 18, 30). As members of the federation, Länder are states with their own sovereign power. Th is power, even if limited in subject matter, is not derived from the federation but recognized by it. As long as it remains within the framework of Article 28 (1), a state’s constitutional order falls within the state’s jurisdiction. In par ticu lar, it is exclusively incumbent upon the state to determine the rules that govern the formation of the state’s constitutional organs and their functions. The state’s competence also includes setting regulations that determine how often and on what occasions citizens may vote as well as when and under what conditions the term of a state legislature expires. . . . Th is rule also applies equally to legislation [enacted] pursuant to Article 118. It is true that, in order to effect reorganization, the federal legislature has power to “retrench” the states of Baden, Württemberg-Baden, and Württemberg-Hohenzollern. But it cannot disturb the constitutional structures of these states as long as they exist in their entirety. One may not argue that, by eliminating the three state legislatures in the process of reorganization, the federation shortens their terms of office and consequently can also extend them for a transitional period. . . . Elimination of the state legislatures is a necessary consequence of the elimination of these states; thus [this act] does not constitute a curtailment of [the legislatures’] terms of office. By contrast, extension of the legislative terms may occur with respect to existing state legislatures. Th is extension requires a special legislative act that the federation cannot pass for the aforementioned reasons. A state cannot dispose of its legislative authority. And the federation cannot by virtue of a state’s consent obtain legislative authority that the Basic Law does not grant. Therefore, the fact that Württemberg-Hohenzollern consented to the measure taken by the federation is without legal significance. 5. Article 118 (2) only authorizes the Parliament to regulate “reorganization” and, thus, draws constitutional limits. . . . The Parliament could extend the electoral terms of the state legislatures only if . . . the “matter cannot be effectively regulated by legislation of individual states” [Article 72 (2) of the Basic Law]. Th is limitation precludes extending the terms of state legislatures. . . . Such authority remains primarily a matter for the states. . . . 6. In view of these legal restraints, practicality, political necessity or similar considerations cannot confer unfettered discretion on the Parliament to enact any regulations that seem reasonable and proper under the guise of reorganizing states. . . .

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7. . . . The Federal Constitutional Court must hold a legal provision null and void if it is inconsistent with the Basic Law. Hence we declare that the First Reorganization Law . . . is null and void. . . . Th is declaration has legal force and is to be published in the Federal Law Gazette. Th is declaration, along with the main reasons for the decision, bind[s] all constitutional organs of the federation . . . in such a way that legislative bodies may not again deliberate upon and enact a federal law with the same content, nor can the Federal President sign such a law. E. [Second Reorganization Law]. . . . 8. a. It has been asserted that a federation cannot eliminate a member state against its population’s will. As a rule, a federal constitution guarantees the existence and territory of member states. But the Basic Law expressly deviates from this rule. Article 79 (3) guarantees as an inviolable principle only that the federation must be divided “into states.” The Basic Law does not contain any guarantee for presently existing states and their borders. On the contrary, it provides—as follows from Articles 29 and 118—for changes in territorial conditions of individual states as well as for a reorganization of federal territory that may entail the elimination of one or more existing states. Th is reorganization may even be effected against the will of the population of the state concerned. . . . The Basic Law thus espouses a “malleable federal state.” . . . b. It follows from Article 29 (4), however, that an ordinary federal law cannot supersede the will of a member state’s population—only a new vote of the Parliament and a referendum of the entire federal population can do so. Thus, only the will of the population of the higher unit suffices, and not merely the will of the population of one or several neighboring states. The question [necessarily] arises, whether this principle also applies to regulations pursuant to Article 118 (2). The provision that protects a state’s existence is an outgrowth of the Basic Law’s principle of federalism. . . . Th is determination impeding interference with a state’s existence flows from the federalist principle set forth in the constitution and thus is an important basic constitutional decision. There are two arguments that the principle contained in Article 29 (4) also applies to Article 118. First, the legislative history of Article 118 might suggest this result. After all, Article 118 emerged from Article 29 only at the end of deliberations in the Parliamentary Council in the fourth reading of the law. Second, it is generally accepted that the principles contained in Article 29 (1) are also to be applied to regulations pursuant to Article 118. Nevertheless, the framers of the Basic Law . . . expressly declared in Article 118 that reorganization may “deviat[e] from the provisions of Article 29.” . . . Instead, the deliberations in the Parliamentary Council, the public discussion in the past few years, and consultations among the three state governments have produced a general consensus that the present public-law conditions in the southwest area are especially unsatisfactory and therefore ripe for immediate reorganization. Consequently, [the consensus of the people] was to endorse a fast and simple reorganization. The opposition of one state’s population must not frustrate this [reorganization]. . . .

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c. Baden claims that, aside from the principle contained in Article 29 (4), other clauses of the Basic Law recognize the democratic principle (Articles 20, 28). . . . Democracy means self-determination of the people. [Baden argues that the Second Reorganization Law] deprives the people of Baden of this right because it forces them to become part of a southwest state against their will. That, in principle, a people must themselves determine their basic order . . . certainly follows from the notion of democracy. . . . The state of Baden, as a member of the federation, is an independent body politic. Th is body politic . . . possesses the right of self-determination. Yet, it is decisive that Baden, as a member state of a federation, is not autonomous and independent but is part of a federal order that restricts its sovereign power in various respects. . . . To a certain extent a tension exists between the principles of democracy and federalism concerning the position of a member state in the federation. There can be a compromise between the two only if both suffer certain restrictions. In the case of reorga nization of federal territory consigned to the federation, it is the nature of things that the people’s right to selfdetermination in a state must be restricted in the interest of the more comprehensive unit. Within the scope of what is possible in a federal state, the Basic Law’s provisions in Article 29 and in Article 118 safeguard the democratic principle by setting forth that the bodies politic, respectively, of the federation and of the area to be reorganized will ultimately decide.

∂

Southwest State: Germany’s Marbury v. Madison. Because of Southwest State’s significance in German constitutional law the case has been compared with the U.S. Supreme Court’s Marbury v. Madison (1803).8 Marbury made it clear that the Supreme Court could refuse to enforce an unconstitutional law, and it put forth an elaborate rationale in support of judicial review. No such rationale was necessary in Southwest State because the Basic Law explicitly confers this power on the Constitutional Court. The foundational character of Southwest State is rooted, instead, in the general principles of constitutional interpretation stated therein and in the clarity— and forthrightness—with which the Constitutional Court defi ned the scope of its authority under the Basic Law. The Court boldly asserted that its judgment and the opinion on which it rests were binding on all constitutional organs, even to the extent of preventing Parliament from debating and passing another law of the same content. For the fi rst time, too, the Constitutional Court laid down a fundamental tenet of interpretation. Because the Basic Law represents a logical unity, said the Court, no clause or provision may be interpreted independently; it must be seen in relationship to all other clauses and to the constitution as a whole. Southwest State was also the fi rst case in which the Court endorsed the then-novel notion of an unconstitutional constitutional amendment. “A constitution,” said the Court, “has an inner unity, and the meaning of any one part is linked to that of other provisions. Taken as a whole, a constitution reflects certain overarching principles and fundamental decisions to

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which individual provisions are subordinate.”9 Thus, even a par ticu lar constitutional provision or constitutional amendment may be unconstitutional if it confl icts with these “overarching principles and fundamental decisions.” Democracy and federalism, said the Court, are among these overarching principles. The Court also acknowledged the existence of a higher law, transcending positive law, which binds the framers of constitutions as much as it does legislatures. In the end, the Court made it very clear that any constitutional provision or amendment in confl ict with this higher law or the fundamental principles of the Basic Law would be judged unconstitutional. Baden had argued, on the basis of the constitution’s inner unity, that Article 118 of the Basic Law is invalid because it contradicts the general policy of Article 29. Recall that Article 118 permits the reorganization of the federal territory “without regard to the provisions of Article 29.” Article 118 authorizes the federation to consolidate the southwestern states over the objection of Baden and without resorting to the national referendum required by Article 29. (With respect to the Länder of Berlin and Brandenburg, a 1994 amendment to the Basic Law—Article 118a—provides a similar exception to the policy of Article 29 pursuant to which the two Länder may be combined into a single state “by agreement between the two states and with the participation of their electorates.”) The Constitutional Court, however, sustained the procedural aspects of the referendum proposal, noting that the Basic Law, while requiring the division of the federal territory into states, does not guarantee their status quo. An otherwise valid reorganization proposal may abolish a particular state, even against the will of its population. Territorial Reorganization after Southwest State. In 1952, pursuant to a legitimate referendum and in accordance with the Court’s instructions, the new state of BadenWürttemberg, which took the place of the three former states, came into being. Unlike the hostile Jeffersonian response to Marbury v. Madison,10 the general political reaction to Southwest State was deferential and compliant. Shortly after the Court issued its Southwest State decision, Justice Gerhard Leibholz wrote: It may be said that the raging political controversies which ensued from the disputes in southwestern Germany, especially between Württemberg and Baden, subsided visibly as a result of the judgment of the Federal Constitutional Court, which was readily accepted by all parties concerned. Even at this early date there can be no doubt that the judgment of the Court had a pacifying influence on the political life of all states involved in the controversy, and that it cleared the political atmosphere considerably. Beyond that, it had a politically unifying effect which proved beneficial to the new German state as a whole.11

The mollifying effect of Southwest State also proved to be enduring. In 1970 there was another referendum on the further existence of Baden-Württemberg among the former citizens of Baden. Eighty-two percent of the participants voted in favor of the state’s existing borders. There have been no further changes in the boundaries of the original West German states. The reintegration of the Saarland into the Federal Republic, in 1959, did not

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affect state boundaries. Reunification also did not generate noteworthy territorial reorganization. The boundaries of the new Länder admitted to the Federal Republic from the former East Germany were settled in nonbinding referenda in 1990, a process that produced few changes in the territorial lines of these states. The most significant territorial impact of reunification, as noted earlier, is the still-planned merger of Berlin and Brandenburg. The only serious effort to overhaul the entire federal structure was Hesse’s attempt to compel the federation to change the boundaries of the Länder under the compulsory reorganization provision of Article 29. The Constitutional Court turned back this attempt in the Territorial Reorganization Case (1961).12 Hesse claimed that it could not adequately plan its own future as an autonomous state given the uncertainty surrounding possible federal reorganization. In the Court’s view, the time and character of territorial changes were for the federation to decide in the interest of the Federal Republic as a whole.13 By this time public sentiment for major territorial change had largely disappeared and, in 1969, Article 29 was amended to make any such change optional rather than obligatory.14 In the Oldenburg State Case (1978) a majority of the residents of the former Weimar-era state of Oldenburg, which was absorbed into Lower Saxony in 1946, voted in favor of reestablishing Oldenburg as an independent state. In addition to denying standing to those invoking the rights of the former state, the Constitutional Court held that the Bund’s authority to reorganize the federal territory was a power conferred “neither in the interest of the existing states nor for the preservation of the interests of former states.” In adhering to the basic teaching of Territorial Reorganization, the Court declared that the Basic Law permits territorial change only at the discretion of the federation and for the well-being of the entire nation.15 Nevertheless, additional amendments to the Basic Law, such as proposals to further consolidate the Länder, could radically alter the Court’s view of the federation’s discretion on the question of territorial reorganization. But in the Franken State Case (1997)16 the Court showed no sign that it would change the balance as a matter of constitutional interpretation. The Court accepted the standing of a representative of the individuals who endorsed an application seeking the creation of a new state called Franken, consisting of a region straddling the borders of Bavaria, BadenWürttemberg, and Thuringia. But the Court rejected the claim that the federal minister of the interior’s decision to refuse to proceed with a referendum on the application constituted a violation of Article 29 of the Basic Law.17 The Court held that the minister of the interior properly concluded that the proposed new state did not qualify as a “contiguous residential and economic area” as required by Article 29 (4) of the Basic Law. In support of this conclusion the Court noted that the significant amount of daily commuter traffic out of the proposed state undermined claims of the region’s economic cohesion. The Nature of German Federalism. Constitutional theorists have long disputed the nature of the federal state (Bundesstaat) created by the Basic Law. What elements of

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the unitary state (Einheitsstaat) does it contain? What elements of a confederation (Staatenbund)? Both forms of territorial organization have figured prominently in German constitutional history. Is the Bundesstaat a two-tier (zweigliedrig) or a three-tier (dreigliedrig) structure? Zweigliedrigkeit suggests that the parts (states) are subordinate to the whole (federation). Dreigliedrigkeit suggests that national and state governments—both equal and coordinate—combine to form a third “state,” namely the state as a whole (Gesamtstaat). Konrad Hesse, a leading commentator on the Basic Law and a Federal Constitutional Court justice from 1975 to 1987, defi ned the Federal Republic as a “unitary federal state,” suggesting a strong tilt toward centralism.18 Others, such as Ulrich Scheuner, accentuated the Basic Law’s federalist underpinnings.19 Still others emphasized the solidarity contained in the idea of a strong federal union. Theodore Maunz’s view is representative: “The Bundesstaat is not a battle of member states against the whole, but rather a joint effort for achieving the ends assigned to each level [of government] under the Basic Law.”20 The argument over the nature of the Bundesstaat assumed considerable importance in 1957, when the Federal Constitutional Court decided the Concordat Case (1957; no. 3.8), which involved an area of public policy over which both the states and the federation could claim competence. Concordat appeared to embrace the threetier concept. The Court upheld the legal validity of an international agreement that had been negotiated before the establishment of the Federal Republic of Germany. That agreement denied the successor Federal Republic of Germany any control over the education policy of the individual states of the federation. Several years later, however, in Territorial Reorganization (1961),21 the Court appeared to accept the twotier theory. “The Bundesstaat as the state of the whole [Gesamtstaat],” said the Court, “does not consist of an independent central state [Zentralstaat] but only of a central organization which, together with the organization of the Länder, carries out, within the sphere of operation prescribed by the Basic Law, all those governmental functions that devolve upon a unified state organization in a unified state. The Basic Law divides authority only between the organs of the federation and those of the states, whereby the Gesamtstaat arises out of an alliance among the states in the form of a federation.”22 State Government and the Principle of Homogeneity. At the most basic level, the authority of the Länder in the German federal system is determined by their relationship to the federation and the Basic Law. Th is relationship, which necessarily must be clarified before pursuing a discussion of the Basic Law’s division of legislative and administrative authority between the federation and the Länder, is inherent to federal systems. For example, to what extent must state and local governments comply with the federal constitutional order? Article 28 of the Basic Law provides the answer: “The constitutional order in the Länder must conform to the republican, democratic, social state, and constitutional state principles, . . .” Th is provision, although labeled the “homogeneity clause,” is not a prescription for uniformity in governmental organization. Article 28 (1) has been generally understood to require

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states and localities to adhere to the basic principles, including “democracy, the social state principle and the constitutional state principle.”23 Th is has been interpreted to mean representative political institutions and governmental structures indispensable to the operation of a federal state. It also incorporates the principle of subsidiarity. What is important here is local autonomy, not a par ticular structural form. In addition, the formalities of the governmental process must be organized in such a way as to make the social and constitutional state (sozialer Rechtsstaat) possible. But how much flexibility do state and local governments have in establishing institutional procedures for the adoption of public policies? Th is was a central issue in the Startbahn West Case (1982),24 the result of a controversy arising out of Hesse’s refusal to hold a referendum, as demanded by a grassroots initiative, on the Land government’s decision to expand Frankfurt’s international airport. Hesse’s state government and constitutional court rejected the proposed referendum on state constitutional grounds and refused to consider related issues of federal law deemed to confl ict with the airport expansion proposal, including the threat to the constitutional right of personality (Article 2 (1)) allegedly posed by the further destruction of the environment. The applicants (invoking the Federal Constitutional Court’s jurisdiction over “other public-law disputes”) and the complainants (prosecuting a constitutional complaint) argued that the case could not be decided by reference to the state constitution alone and that the issues in controversy would have to be settled by the Federal Constitutional Court in accordance with federal constitutional principles. In a significant victory for the Länder, the Court ruled that Hesse’s exclusive reliance on state law in refusing to proceed with the referendum did not violate a fundamental right under the Basic Law. After remarking that Land and federal constitutional law are “separate domains,” the Court said: As members of the federation, the Länder are states vested with their own sovereign powers—even though limited as to subject matter—derived not from but rather recognized by the federation. . . . The Basic Law requires only a certain degree of identity between federal and Land constitutions. To the extent that the Basic Law does not provide otherwise the Länder are free to construct their constitutional orders. Their discretion in this respect most certainly extends to determining whether the Land legislature should reserve to itself the passage of a law or provide for its approval in a popu lar referendum. 25

Article 29 of the Basic Law allows referenda on the federal level in the limited instance of territorial reorganization. The Court said that this limit on the use of referenda by the federation does not prevent the states from employing referenda in other situations. In short, no confl ict with federal prerogatives could arise in this case because the decision to hold a referendum was a matter of the Land’s discretion. The Court went on to say that its power of review in such a case was restricted to examining the constitutionality of Land law and state executive or judicial actions. Because Hesse rejected a proposed referendum measure, the Constitutional Court

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had no authority to become involved. With this the Court confi rmed the authority of a Land constitutional court to review a state law under its own constitution, even when a case before it involves a fundamental right under the Basic Law. To suggest, as the applicants and complainants had done in Startbahn West, that only the Federal Constitutional Court could hear such cases “would seriously undermine the integrity of Land constitutional law.”26 Since Startbahn West the Court has gone a step further, recognizing a Land constitutional court’s authority to review the application of federal law for conformity with state constitutional norms (recalling again that the Länder bear much of the responsibility for administering federal law), even when the relevant Land constitutional law is identical to federal constitutional protections that the Federal Constitutional Court might otherwise have been competent to examine.27

doctrine of federal comity Early on, the Constitutional Court oscillated between the two-tier and three-tier concepts of federalism.28 Eventually, however, it settled on a more pragmatic approach to the federal-state relationship in an effort to weigh and balance the vital interests of both state and national governments. Th is concern for balance and practicality induced the Court to proclaim the principle of federal comity or pro-federal behavior (Bundestreue), which obligates the federation and Länder to consider each other’s interests in exercising their authority. The doctrine of comity, which the Court invoked for the fi rst time in the Housing Funding Case (1952),29 does not appear in the text of the Basic Law. It is, rather, an unwritten principle inferred by the Court from the various structures and relationships created by the constitution. German federalism, said the Court, is essentially a relationship of trust between the federation and Länder. Each has a constitutional duty to keep “faith” (Treue) with and respect the rightful prerogatives of the other. The doctrine received special emphasis in the First Broadcasting Case. 3.2 First Broadcasting Case (1961) 12 BVerfGE 205 [The television controversy grew out of Federal Chancellor Konrad Adenauer’s effort to create a federally operated television station. One major television channel controlled by the states was already operating in the Federal Republic. Adenauer, who was also the leader of the conservative Christian Democratic Union, was at the time strongly opposed by Länder that were under the control of the center-left Social Democratic Party. Finally, and notwithstanding opposition from both Social Democratic and Christian Democratic states, Adenauer established a second television station by decree. Several Länder immediately challenged the validity of the decree, invoking the Constitutional Court’s juris-

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diction over federal-state confl icts. The Länder relied on Articles 30 and 70 (1) of the Basic Law, claiming that these provisions confer no such power on the federation. In response, the federation relied on an earlier version of Article 87 (1) as well as Article 73 (7), which conferred exclusive authority on the federation to legislate in the field of and to administer “postal and telecommunication ser vices.”30]

∂

Judgment of the Second Senate. . . . D. II. 3. b. The Basic Law regulates the legislative authority of the federation and Länder on the basis of a principle that favors the jurisdiction of the states. . . . The federation has legislative authority only insofar as the Basic Law confers it (Article 70 (1)). Thus, as a rule, federal legislative powers can be derived only from an express statement in the Basic Law. In cases of doubt there is no presumption in favor of the federation’s authority. Rather, the systematic order of the Basic Law demands a strict interpretation of Article 73 [and other provisions that confer power on the federation]. In addition, broadcasting is a cultural matter. To the extent that cultural affairs are subject to governmental regulation at all, the Basic Law has made a fundamental decision (Articles 30, 70 et seq., and 83 et seq.) that they come within the authority of the Länder. . . . Exceptions occur only when special provisions of the Basic Law provide that the federation has authority. Th is fundamental decision of the constitution, a decision in favor of the federal structure of the nation in the interest of an effective division of powers, specifically prohibits the assumption that the federation has authority over cultural matters. The federation has authority only when there is a clear exception spelled out in the Basic Law. Th is sort of provision is lacking here. 4. The public interest demands the regulation of radio communications— something only the federation can do effectively. Th is is also true of broadcasting. To prevent chaos, a number of matters must be subject to uniform regulation: allocating and delimiting the frequency ranges of stations, determining their locations and transmission strength . . . control of radio communication, protecting transmission systems from widespread and local disturbances, and implementing international agreements. Article 73 (7) makes it possible to enact uniform regulations that are indispensable to these and similar matters. But implementing this objective does not require that, in addition to technical questions of radio communication, federal law also [should] regulate the production of broadcasts. . . . 5. An historical interpretation of the term “telecommunication ser vices” does not lead to a different conclusion. . . . 6. a. The federation is not entitled to any further legislative authority over broadcasting on the basis of a nexus with the subject matter [Sachzusammenhang]. Regulating

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studio technology and program production . . . is not an indispensable requirement for regulating technical matters relating to broadcasting. [The notion of Sachzusammenhang (loosely translated, “having a nexus with the subject matter”) suggests an implied power. As used here it means that the federation may regulate a subject matter not within its express powers if it cannot avoid such regulation when making law in an area where it has express constitutional authority. One example would be the federal regulation of court fees. Th is subject is so closely related to the federal government’s authority in the fields of civil law and court procedure that any regulation of the latter necessarily involves a regulation of the former.] Transmitting programs, on the one hand, and producing programs, on the other hand, are undertakings that [legislatures] can treat separately. In this respect “broadcasting” is not a single subject matter that must be regulated uniformly by the federation. . . . c. The federation has no authority to regulate broadcasting beyond the technical aspects of transmission. . . . 7. b. The federation must . . . observe the principle of comity. . . . Th is principle would be violated if the federation today used its authority to regulate the telecommunication system so as to deprive existing broadcasting companies of the right to dispose of transmitting facilities that they own and operate. The same would be true if the federation deprived these companies of their frequency ranges and, in distributing frequencies to be used now or in the future, did not duly consider the companies in light of state regulations concerning producers of programs. . . . E. II. In the German federal state the unwritten constitutional principle of comity, the reciprocal obligation of the federation and the Länder to behave in a pro-federal manner, governs all constitutional relationships between the nation as a whole and its members, and the constitutional relationships among its members. . . . From this principle the constitution has developed a number of concrete legal obligations. In considering the constitutionality of the so-called horizontal fi nancial equalization, this Court said: “Federalism by its nature creates not only rights but also obligations. One of these obligations consists in fi nancially stronger states giving assistance within certain limits to fi nancially weaker states. . . .” Furthermore, in cases where a law demands that the federation and the states come to an understanding, this constitutional principle can create an increased obligation of cooperation on all parties concerned. . . . In the decision concerned with granting Christmas bonuses to public employees this Court held that states must maintain loyalty to the federation (Bundestreue) and, therefore, show consideration for the overall fi nancial structure of the federation and states. . . . Th is legal restraint, derived from the concept of comity, becomes even more evident in the exercise of legislative powers: “If the effects of a law are not limited to the territory of a state, the state legislature must show consideration for the interests of the federation and other states. . . .” The constitutional principle of comity can further imply states’ duty to observe international treaties

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concluded by the federation. . . . Finally, under certain circumstances, loyalty to the union can obligate a Land to use its supervisory authority over local governments to intervene against municipalities that encroach upon an exclusive federal competence. . . . In the execution of federal authority over the field of broadcasting, the principle of comity is also of fundamental importance. . . . Previous decisions show that additional concrete obligations of the Länder can be developed from this principle—obligations that surpass constitutional obligations explicitly laid down in the Basic Law. . . . The case at hand offers an occasion to develop the constitutional principle of comity in a different direction; comity also governs the procedure and style of the negotiations required in the constitutional coexistence of the federation and its constituent states as well as between the Länder inter se. In the Federal Republic of Germany all states have the same constitutional status; they are states entitled to equal treatment when dealing with the federation. Whenever the federation tries to achieve a constitutionally relevant agreement in a matter in which all states are interested and participating, the principle of comity prohibits the federation from trying to “divide and conquer,” that is, from attempting to divide the Länder, to seek an agreement with only some of them and then force the others to join. In negotiations that concern all Länder, the principle of comity also prohibits the federal government from treating state governments differently because of their party orientation and, in particular, from inviting to politically decisive discussions only representatives from those state governments politically close to the federal government and excluding state governments that are close to opposition parties in the Parliament. . . . The year-long efforts to reorganize the broadcasting system entered a new phase in early 1958 when the federal government considered drafting a federal law. After the draft of a federal law had been discussed several times during 1959 with Land representatives, the Länder, in January 1960, agreed to form a commission consisting of two Christian Democratic and two Social Democratic members of state governments. Th is commission was empowered to represent the state governments in negotiations with the federation. The federal government, however, never let this commission participate in negotiations. Only one of its members, the Christian Democratic Minister-President of the Rhineland-Palatinate, participated—not in his role as a member of the commission, but as a member of his party—in a number of debates between politicians and deputies of the Christian Democratic Union and the Christian Social Union. . . . The fact that the Minister-President of the RhinelandPalatinate informed the state governments led by Social Democratic ministerpresidents of these plans in a letter dated 16 July 1960, and at the same time invited them, together with the other minister-presidents, to a discussion of these plans on 22 July 1960, did not release the Federal Government from its obligation to confer directly with all state governments concerning the plan it had drafted. That it neglected to do so violated the principle of comity. The federal government’s behavior toward the Länder in the days leading up to the creation of the federal television broadcasting company also was incompatible with

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the principle of comity. The federal government knew that the minister-presidents of the states . . . had their fi rst opportunity to discuss the plan to create a limited partnership and a second television network on 22 July 1960. The minister-presidents, including those of the Christian Democratic Union and the Christian Social Union, did not fully accept the federal government’s proposal, but made counterproposals by a letter of 22 July 1960—thus fully informing the federal government of the result of these discussions. Nevertheless, the federal government insisted that the Länder approve the corporate contract on 25 July 1960 even though the states had played no role in draft ing the contract. The federal government’s letter, dated 23 July 1960, was mailed in Bonn on 24 July 1960 at 5:00 p.m. and reached the addressee, the MinisterPresident of Rhineland-Palatinate, on 25 July 1960 at 4:15 p.m. That is, it reached him at a time when the corporate contract had already been notarized. . . . Such a proceeding is blatantly incompatible with the principle of comity, even if the federal government had reason to be displeased with the delay tactics pursued by some Land governments. At issue here is not whether the federal government could consider negotiations with the states as having failed, allowing it to pursue an alternative course it believed to be constitutional, . . . but whether the Land governments as constitutional organs of member states of the Federal Republic of Germany could expect the federal government to disregard their counterproposals with a fait accompli. . . .

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The Jurisprudence of Comity. The Federal Constitutional Court did not invent the principle of comity. It played a significant role in the constitutional theory concerned with federal-state relations under the Imperial Constitution of 1871. The Financial Equalization Act Case (1952),31 which approved a federal statute providing for the transfer of tax revenues from the fi nancially stronger to the fi nancially weaker states (a component of the Basic Law’s fi nancial constitution, which is treated in greater depth later in this chapter), alluded to this history in assigning comity a major place in the Federal Republic’s constitutional jurisprudence. In several subsequent cases the Court seized on the principle of comity to vindicate the fi nancial interests of various Länder, even when the letter of the constitution might have suggested a contrary result.32 Still later, in the Atomic Weapons Referendum I Case (1958; no. 3.7), the Atomic Weapons Referendum II Case (1958), and the Concordat Case (1957; no. 3.8),33 the Court invoked the principle to admonish the Länder and the federation to respect the primacy of the other in their respective fields of authority. As Blair suggested, these decisions “establish for the states in their relations with each other and with the ‘greater whole,’ and for the federation in its relations with the states, a duty in constitutional law to keep ‘faith’ (Treue) and reach a common understanding” with respect to certain matters of public policy.34 In Atomic Weapons Referendum II, for example, the Court rebuked Hesse for permitting local referenda within its borders.35 The Court said that Hesse’s failure to ban the referenda (aimed at discrediting the federation’s pursuit of a defense policy that involved the procurement of nuclear weapons) violated the principle of federal comity.

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In its defense, Hesse advanced two arguments: fi rst, the federal government had itself offended the constitution by manipulating public opinion in such a way as to undermine the principle of majority rule implicit in the concept of democracy;36 second, the Land had not disregarded the principle of comity because it acted out of goodwill and in the best interest of the Federal Republic. Both arguments, said the Court, were incapable of judicial resolution. It concluded its opinion, however, by noting that a decision fi nding a violation of the principle of comity did not imply a spirit of ill will on the part of a Land or a reproach (Vorwurf) of the state. Comity, said the Court, “is exclusively an objective idea of constitutional law, and it assumes that the participants, with respect to a given subject matter, are convinced subjectively of the constitutionality of their mutual dealings.”37 After First Broadcasting the Court was less inclined to decide federal-state confl icts on the basis of an express appeal to comity. Theoretical and practical reasons prompted this result: theoretical because inferences from the structure of federalism proved to be extremely indeterminate; practical because the sharp confl icts of the 1950s paled before the advance of “cooperative federalism,” pursuant to which levels of government worked together voluntarily to achieve certain policy objectives.38 References to comity continued to appear in constitutional cases but the Court seemed to regard it as a principle of decreasing vitality. Th is was exemplified by a decision from 1976 in which the Court declared: “The principle of comity is of an accessory nature, which, unto itself, does not establish obligations (to act, to refrain from acting, or to tolerate) on the part of the federation or the Länder. This means the principle of comity can only take on meaning within a legal relationship with its basis elsewhere (whether statutory or contractual) or a legal obligation with its basis in the law.”39 After an apparent resurgence of the principle in the 1990s,40 the Court reversed course and again began to fi nd that alleged violations of comity, standing alone, did not present a constitutional question justifying the exercise of its jurisdiction. In the Pofalla I Case (2001) the Court emphasized that the principle merely is an accessory to underlying legal relationships and obligations: “comity does not in itself create a material constitutional relationship between the federation and a Land. It is of an accessory nature and does not on its own establish any independent duties for either the federation or a Land. . . . The principle of comity acquires significance only in the context of a statutory or contractual, that is to say, a legal, relationship with its basis elsewhere. It mitigates or varies those other rights and duties or supplements them with secondary duties. . . .”41

apportionment and distribution of revenue The Basic Law links federal-state competences under several provisions. These provide that certain public tasks can be carried out jointly when both levels of government consent (Articles 91a, 91b, 91c, 91e and 98 (3)). At one time the Basic Law authorized

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federal “framework” legislation to assist the Länder in meeting their responsibilities in fields such as higher education and regional planning (Article 75 [repealed in 2006]). Our present focus, however, is on Articles 104a through 115, the section of the Basic Law known as the fi nancial constitution. Here, the Basic Law thrusts the Bund and Länder into an intricate web of intergovernmental relations in the area of public fi nance and fiscal policy, relations involving the collection, apportionment, and distribution of public revenue. Several of these provisions defi ne the tax authority of each level of government and provide for the apportionment of tax revenues along vertical (from federation to Länder) and horizontal (Land to Land) lines.42 Th is system was meant to advance Germany’s postwar commitment to equivalent living conditions among the Länder. In advancing this objective, the Basic Law sought to avoid the extremes of the 1871 (Imperial) and 1919 (Weimar) Constitutions. The former made the “Reich the dependent of the states,” whereas the latter made the “states the dependents of the Reich.” 43 The tension between the federalist and centralizing impulses represented by these extremes continues to bedev il the Basic Law’s fi nancial constitution. The tension is between autonomy and solidarity (Spannungsfeld von Autonomie und Soldarität), and it seems to flow from the Basic Law’s defi nition of the Federal Republic as a “social federal state.” With its grant of autonomy to the Länder, federalism competes with the centralizing tendencies of the Basic Law’s social state principle.44 Accordingly, the Basic Law’s apportionment and distribution of public funds takes place against the backdrop of a combustible mix of state autonomy, often contentious social welfare policy, and competing claims to tax revenue. Unsurprisingly, the constitutional provisions that regulate taxation and budgetary matters have been the subject of more amendments than other parts of the Basic Law. Given the details of fiscal governance laid out in the Basic Law, one can see why. In Articles 104a through 108, for example, the Basic Law itemizes the sources of tax revenue for each level of government, provides for their distribution among these levels, prescribes a complex formula for the horizontal equalization of fi nancial resources among the Länder, and specifies the costs that the federation and Länder shall bear in meeting their obligations under domestic and European law. In addition, Articles 109 through 115 lay down the guidelines of budget management by the federation and the Länder, including such matters as deficit spending, limits on borrowing, and the auditing of revenue and spending accounts. What is more, nearly all federal laws enacted to carry out the bulk of these provisions require the consent of the Bundesrat, thus placing in the hands of the Länder enormous influence over the administration of tax and spending policies. Little wonder that the Bundestag and Bundesrat often found themselves in gridlock over fiscal policy. The federalism reforms of 2006 sought to streamline this system of fiscal relations between levels of government by cutting back on the powers of the Bundesrat and by drawing brighter lines of authority between federation and Länder. We focus attention here on fiscal and budgetary reform and reserve for later a discussion of the

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changes in the general distribution of legislative power between levels of government. The most important of the 2006 reforms involved the disbursement of funds between federation and Länder and the corresponding powers of the Bundesrat. Significant among these reforms was an amendment making it unnecessary to secure the Bundesrat’s consent to federal laws providing money grants that are to be partially funded and administered by the Länder. Another important change was the new Article 104b permitting federal grants-in-aid to the Länder and municipalities for investments necessary to maintain “overall economic equilibrium,” to equalize economic capabilities among the Länder, and to promote economic growth.45 Previously, under Article 104a, these lower levels of government had less flexibility in the investment of these funds. Th is provision differs from the old Article 104a (4) in that it limits the reach of grantsin-aid, imposes time limits and periodic reviews on such grants, and requires that the aid granted by the federation be reduced in stages over time.46 Equalization of Tax Revenue. Articles 106 and 107 of the Basic Law provide for the distribution, both vertically and horizontally, of the tax revenue in a complex, multistage system known as fi nancial equalization (Finanzausgleich). The fi rst stage of this process, laid out in Article 106, provides for the vertical distribution of tax revenue. While some minor tax proceeds are assigned exclusively to the federation or the Länder, the largest portion of these proceeds (derived mainly from income, corporation, and turnover [value-added] taxes), is shared equally between the two levels of government.47 The motor vehicle tax was another large source of revenue. Under the original version of Article 106, these tax receipts accrued to the Länder. The fiscalfederalism reform amendments of 2009, however, transferred the motor vehicle tax to the federation but the Länder were given a share of these proceeds under a federal law subject to the Bundesrat’s consent. The turnover tax, another large source of revenue, now is awarded in ratios determined by a federal law that also requires the Bundesrat’s approval. Article 107 provides for the horizontal or second stage of the equalization process. On this plane, population and production generally determine how tax revenue is to be distributed among the Länder and municipalities. For example, the states’ share of the turnover tax is distributed on a per capita basis. But federal law enacted with the Bundesrat’s consent may require the redistribution of as much as one-quarter of the states’ share of the turnover tax to Länder with per capita revenues below the average of all states combined. Article 107 (2) prescribes still a third stage of horizontal distribution aimed at “ensur[ing] a reasonable equalization of the disparate fi nancial capacities of the Länder.” Th is requirement is controversial because it calls for direct state-to-state transfers of revenue from fi nancially stronger to fi nancially weaker Länder, a status determined by a “complicated scheme that contrasts the tax revenues that a Land should have (fiscal needs) with those that it actually has (fiscal capacity).”48 Article 107 (2) completes the Basic Law’s fi nancial equalization regime with a fourth stage that permits the federation to make supplementary grants from its own revenues to the fi nancially weaker Länder to assist them in meeting their general

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fi nancial obligations. Th is system, and the federal laws enacted to implement it, have given rise to several constitutional confl icts between federal and Länder governments, and the Federal Constitutional Court has played no small role in that history, having handed down four major fi nancial equalization cases. Before discussing those cases, it is worth noting some changes made to the Basic Law’s budgeting provisions by the fiscal-federalism reforms of 2009. Article 109, for example, specifies the fiscal duties of the federation and the Länder under obligations incurred “from the legal acts of the European Community for the maintenance of budgetary discipline.” A new change also constitutionalizes a specified ratio in the amount of funding for which both levels of government will be responsible as a result of sanctions imposed by the European Union. Similarly, detailed limits on borrowing are set forth in a major amendment to Article 115. Finally, a new Article 109a establishes a Stability Council to supervise the budgetary management of both the federation and the Länder. The Federal Constitutional Court was called upon to resolve disputes arising out of the Basic Law’s command for fi nancial equalization as implemented by the fi rst federal law fi lling in the details and coordinating the regime. In the Financial Equalization Act Case, the Court sustained a horizontal, state-to-state equalization measure that required two fi nancially stronger Länder to subsidize several fi nancially weaker Länder up to specified amounts. The fi nancially stronger Länder argued that the dictated amounts violated the central principle of fi scal federalism articulated by Article 109 of the Basic Law, which declares that the federation and the Länder are “autonomous and independent of each other with regard to their respective budgets.” In sustaining the statute, the First Senate conceded that there are constitutional limits to the federation’s power to enforce horizontal fi nancial adjustments. “The equalization statute would offend the principle of federalism,” said the First Senate, “if it were to weaken the fi nancial capacity of the contributing states or lead to a fi nancial leveling of the states.” But such was not the case and, in any event, the First Senate concluded that “the Länder have duties as well as rights.” Where the fi nancially stronger Länder are concerned, one of these duties is “to assist, within limits, the fi nancially weaker Länder.” 49 In the Finance Equalization I Case (1986) the Second Senate invalidated an “equalization” statute for its failure to ensure, in accordance with an earlier version of Article 107 (2), reasonable fi nancial equalization between financially stronger and financially weaker Länder; whereupon, in a classic example of an admonitory decision (Appellentscheidung), the Court instructed the Bundestag to change the basis for allocating tax revenues among the Länder by fiscal year 1988.50 The Finance Equalization II Case (1992) involved the city-states of Bremen and Hamburg and the state of Saarland. Bremen and Hamburg argued that their transfer payments to other states were too large in view of their own outlays for the maintenance and improvement of harbor facilities that also benefited other states. The Court rejected this claim but found that Bremen had been the victim of constitutional discrimination because the city had received no transfer payments for several

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years and later received less fi nancial aid than Saarland, even though Bremen had substantially higher debts than Saarland. Finally, the Court ruled that the federation’s vertical payments to Bremen and Saarland had been too low in view of the serious budgetary problems of both Länder. Accordingly, the federation and other Länder would be required to assist both Länder with appropriate measures.51 Following the Court’s 1992 decision, the federal laws implementing the fi nancial equalization regime were reformed, in part to incorporate the new, fi nancially weaker Länder of the former East Germany in the fi nancial equalization scheme beginning in 1996. The new system took full advantage of the one-quarter redistribution of the states’ share of the turnover tax in the second stage of equalization, awarding an amount thereof to the fi nancially weaker Länder to allow them to achieve 92 percent of the average of per capita tax revenue of all Länder combined. In the horizontal state-to-state fi nancial equalization of the third stage of the fi nancial equalization process, the new system required direct interstate transfers in amounts necessary to guarantee that the fi nancially weaker Länder achieved 95 percent of the average of per capita tax revenue of all Länder combined. Finally, the new system obliged the federation to make supplementary grants in the fourth stage of equalization in amounts necessary to bring the fi nancially weaker Länder to 99.5 percent of per capita tax revenue of all Länder combined. The Länder saddled with the obligation to “pay” in this horizontal fi nancial equalization scheme had traditionally been governed by conservative parties aligned with the long-serving conservative parliament and federal government that had enacted the 1993 reform. The election of a center-left parliament and federal government in 1998 caused these fi nancially stronger, conservative Länder to chafe at the new federal master’s demand that they transfer revenues to the fi nancially weaker Länder. Only six years removed from the Court’s previous ruling and the attending, significant reform of the relevant law, the fi nancially stronger Länder again brought challenges to Germany’s confounding fi nancial constitution and its implementing legislation before the Federal Constitutional Court. Betraying a quixotic desire to put the persistent challenges to the Basic Law’s fi nancial equalization provisions to rest once and for all, the Court issued its decision in the Finance Equalization III Case. It was a comprehensive, technical, and prescriptive opinion covering eighty pages of the Court’s official reporter. 3.3 Finance Equalization III Case (1999) 101 BVerfGE 158 [The results of the fi nancial equalization scheme in 1998 were a testament to Germany’s commitment to equivalent living conditions in the various Länder. On the one hand, the top fi ve tax-generating Länder (Hesse, BadenWürttemberg, Hamburg, Bavaria, and North Rhine–Westphalia) were relegated by fi nancial equalization to the bottom of the list that accounted for the states’ total tax revenues. On the other hand, Bremen, which placed fi fteenth

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(out of sixteen) in preequalization fi nancial capacity, was catapulted into fi rst place by fi nancial equalization. Bavaria, Baden-Württemberg, and Hesse brought an abstract judicial review challenge against this fi nancial equalization regime. The Second Senate held that provisions of the Standards Regime and the Financial Equalization Regime in the omnibus Financial Equalization Act of 1993 constituted violations of Articles 106 and 107 of the Basic Law.]

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Judgment of the Second Senate. . . . [The Court began its opinion by identifying the three distinct normative layers with which it was concerned in its review of the 1993 fi nancial equalization law: 1) the Basic Law, which establishes the general principles governing the statutory appropriation and distribution of revenue; 2) the “Standards Regime” consisting of long-term allocation and equalization standards that are constantly updated by the Parliament in the context of continuous planning; and 3) the “Financial Equalization Regime,” which sets short-term allocation and equalization targets that are designed to be periodically reviewed. Because the constitutional rules governing public fi nance largely operate as an abstract system of values, the Court focused its attention on the general Standards Regime and the more detailed Financial Equalization Regime implemented by the 1993 law.] C. The Financial Equalization Act does not defi ne the standards stipulated by Article 106 and Article 107 of the Basic Law for the implementation of the fi nancial constitution with adequate specificity. . . . [The Court fi rst examined the Standards Regime.] I. 1. c. The constitution directs the Parliament to form a long-term Standards Regime that is based on a timetable that excludes or at least limits a purely interestorientated understanding of the amounts of money to be affected by fi nancial equalization. Th is contrasts with the Financial Equalization Regime, which applies those standards in up-to-date form with consideration given to actual fi nancial conditions. The fi nancial constitution requires, in Article 106 (3) and (4) and Article 107 (2) of the Basic Law, the enactment of statutory standards that fulfi ll the Parliament’s duty to anticipate the future. Th is is part of the constitutional state principle. . . . In the present context this means that the criteria for tax allocation and fi nancial equalization must be formed before their later effects become known. The requirement of a Standards Regime (Article 106 (3) [4] {1} of the Basic Law) is designed to ensure the formation of long-term principles. The Standards Regime, in its generality, provides for the future in a rational, planned way. It presupposes a certain durability of the rules it establishes. It extends its application to an indeterminate multitude of future cases. It is detached from the persons affected by the details of fi nancial equalization. It directs the attention of subsequent parliaments to their

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obligation to the future even while they are engaged in negotiating respective Financial Equalization Regimes. In these ways, the Standards Regime recalls but also directs the Parliament’s primary authority to interpret the constitution. The requisite indeterminacy is achieved if the Parliament enacts the Standards Regime without regard to the fi nancial interests of the federation and the individual Länder, circumstances that come into focus on the basis of annually changing revenue yields and fi nancial expenditures. Th is standard-setting statute must be adopted well in advance of its actual application and its continuity must be assured so that the standards it establishes are not influenced by current fi nancial interests, vested rights, and privileges. Even if a general “veil of ignorance” [citing John Rawls’s A Theory of Justice (1975)] cannot be drawn over the decisions taken by members of the Parliament, the fact that the Standards Regime exists before the Parliament begins to consider legislation for a new Financial Equalization Regime should guarantee an institutional orientation toward the constitution. Again, the aim is to develop standards without knowing the specific circumstances of their application. . . . d. The Standards Regime sets the terms by which the system of allocation and equalization under the fi nancial constitution is clarified and implemented. Regulating the equalization of fi nancial burdens must not be left to the free play of political forces. The Basic Law does not subject its carefully coordinated fi nancial constitution to the whims of the interested parties. Rather, it directs the Parliament to give fi nal shape to the requirements of the fi nancial constitution in further refi nement of the constitutional principle of federalism. The Parliament is charged with enacting a Standards Regime so that the fi nancial constitution can be clarified in up-to-date terms and the consequences of allocation and equalization can be measured accurately in relation to prevailing circumstances and can be periodically reviewed. . . . e. In passing the Standards Regime, the Parliament fulfi lls its obligation to give concrete form to and supplement the principles of allocation and equalization that  are outlined only generally in the fi nancial constitution. The Bundestag— with the consent of the Bundesrat—discharges this responsibility by adopting the appropriate standards, thus binding itself with these standards of allocation and equalization. . . . Enactment of the Standards Regime creates abstract criteria for specific fi nancial consequences allowing Parliament to give account to itself and to the general public, it ensures the transparency of the distribution of funds in accordance with the constitutional state principle, and it guarantees the budgetary predictability and foreseeability of the bases of public-fi nance autonomy for the federation and each Land. [Having ruled that the 1993 Standards Regime lacked the necessary distance from day-to-day politics and the required long-term perspective, the Court articulated the maxims that should prevail in the Standards Regime. The Court addressed each of the four phases of constitutional fi nancial equalization. In the fi rst stage, the Court explained, the vertical distribution of tax revenue is to

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be determined with a view toward necessary expenditures, fi nancial rationality, and a fair balance that avoids excessive burdens on taxpayers and ensures equivalent living conditions. In the second stage, the Court explained, the turnover tax is to be allocated on a per capita basis except when the formula is adapted to assist Länder with below-average tax revenues. It is the horizontal, state-to-state revenue transfers from fi nancially stronger to fi nancially weaker Länder, undertaken in the third stage of fiscal allocation, that has proven most controversial. Addressing these state-to-state revenue transfers, the Court’s rule for the third stage of fi nancial equalization called into question the horizontal, state-to-state transfer provisions of the 1993 Financial Equalization Act that had produced the dramatic reversal of fiscal fortunes of several of the Länder.] c. . . . Pursuant to the concept of the mutually supportive federal community, Article 107 (2) [1] and [2] of the Basic Law stipulates . . . fi nancial equalization that is supposed to reduce but not remove . . . the differences in fiscal capacity among the Länder. The Financial Equalization Regime must strike a balance between the autonomy, independent responsibility, and preservation of the individuality of the Länder, on the one hand, and the shared responsibility, based on a mutually supportive federal community, for the subsistence and independence of the other members of the federation [Bundesgenossen], on the other. . . . It is not a system for replacing the result of the primary distribution of tax . . . with a new system, which is, for example, characterized solely by the concept of the fi nancial equality of the Länder, but which no longer takes their autonomous statehood and independent responsibility into consideration. The equalization mandate imposed by Article 107 (2) of the Basic Law, therefore, does not require the creation of actual fi nancial equality for the Länder. . . . The balance between the autonomous statehood of the Länder and the mutually supportive federal community, in par ticu lar, would not be achieved if the standards of horizontal, state-to-state fi nancial equalization decisively were to weaken the ability of the contributing [fi nancially stronger] Länder to meet their obligations or lead to a leveling out of the fi nances of the Länder. . . . Moreover, the requirement to equalize the disparate fi nancial capacities of the Länder only to a reasonable extent and without establishing parity prohibits any reversal of the order of fi nancial capacities among the Länder in the context of the horizontal fi nancial equalization. . . . Financial equalization should approximate without imposing actual equality. Th is means that horizontal fi nancial equalization may reduce but not cancel out or reverse the disparities among all sixteen Länder—both those obliged to contribute to as well as those entitled to benefit from equalization. Solidarity among the states of a federation reduces differences; it does not eliminate them. [The Court then addressed the fourth and fi nal stage of constitutionally imposed fi nancial equalization. The Court explained that the federation’s supplementary grants to fi nancially weaker Länder, awarded pursuant to Article 107 (2) [3] of the Basic Law, may not merely continue the horizontal fi nancial equal-

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ization with federal funds. The federal supplementary grants, the Court said, are available to Länder that experience persistent, below average fi nancial capacity or have special burdens. Having outlined the more abstract guidelines required of the Standards Regime, the Court applied these standards to the detailed Financial Equalization Regime of 1993. The Court found a number of provisions to be incompatible with these standards, particularly the provisions concerning the third stage of horizontal, state-to-state revenue redistribution. The Court found that these provisions did too much to equalize the fi nancial capacity of the Länder. The Court identified a cap on fi nancial redistribution, which it concluded would promote solidarity while preserving state autonomy.] II. 2. d. aa. If the . . . Financial Equalization Act restores the fi nancial capacities of the fi nancially weak Länder in two stages to 95 percent of the average fi nancial capacity of the Länder, it establishes for the horizontal fi nancial equalization a reasonable balance between Land autonomy and the mutually supportive federal community. It approximates fi nancial capacities without leveling them out, it maintains the order of fi nancial capacity and, in principle, it avoids excessive burdens for the fi nancially stronger Länder.

∂

Repercussions of Finance Equalization III. The Second Senate’s decision required the revision of the Financial Equalization Act before 1 January 2005. Until that date, the constitutionally flawed 1993 law could remain in force, but only so long as a new Standards Regime, defi ning in more detail the standards by which the fi nancial constitution’s vertical and horizontal equalization scheme would be implemented, had been enacted before 1 January 2003. The new Standards Regime was enacted in September 2001 and was followed by the required comprehensive overhaul of the omnibus Financial Equalization Act in December 2001. In two novel ways the new scheme created incentives for the states to collect their own tax revenues. First, it lowered the rate at which the rich states’ above-average tax revenues are subject to direct state-to-state transfer (from 80 percent to 72.5 percent). Second, it exempted 12.5 percent of tax revenue increases over the previous year from the calculation of states’ fi scal capacity, thereby reducing rich states’ exposure to federally mandated transfers by that amount. These reforms represent timid but certain movement toward a much-debated model of “competitive federalism” that would make states’ fi scal well-being dependent on state economic and social policy. Th is, of course, represents a challenge to Germany’s commitment to equivalent living conditions. The important role played by reunification in the debate that led to Finance Equalization III also merits comment, especially because the broad reform of the omnibus Financial Equalization Act in 2001 was coupled with the extension of the 1993 Solidarity Pact. The long-standing tension between fi nancially stronger and fi nancially

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weaker Länder was exacerbated in the 1990s by the integration of the new, very poor Länder that had constituted the former East Germany. From 1996, the new Länder participated in most components of the fi nancial equalization system and benefited significantly as the recipients of revenue transfers. But pursuant to the Solidarity Pact, the formerly socialist region also was the recipient of a massive infusion of federal funds aimed specifically at invigorating the economy, renovating the infrastructure, and paying for social ser vices such as old age benefits. Again, the goal of these revenue transfers was to establish equivalent living conditions across the whole of the reunified Federal Republic. Some contended that these resources should be counted in the calculation of the new states’ fiscal capacity for the purpose of revenue distribution pursuant to the fi nancial equalization regime. In Finance Equalization III, the Constitutional Court unequivocally rejected this argument, concluding that federal supplementary grants should be aimed at addressing the special needs of the Länder, especially the unique needs of the new Länder. The regrettable but dawning reality that the renewal and economic integration of the new Länder would require a multigenerational effort led to the extension of the Solidarity Pact through the year 2019. The 2006 federalism reform added a new Article 143c to the Basic Law that ensures the viability of this Solidarity Pact. Showing further support for the fiscal facets of reunification, in 2010 a chamber of the First Senate refused to admit for review a concrete judicial review application that called into question the constitutionality of the so-called “Solidarity Supplemental Tax” or “Soli” (Solidaritätszuschlag). It is this supplement to the income tax that, in part, funds the Solidarity Pact. In refusing to admit the constitutional reference from the Finance Court of Lower Saxony, the three-justice chamber of the Constitutional Court concluded that the “Soli” was properly still levied as a supplemental tax despite the fact that it had been two decades since unification. An earlier ruling on the constitutionality of a supplemental tax, the chamber explained, had clearly established that these taxes can be regularly renewed.52

local self- government Local government is a prominent feature of Germany’s constitutional structure. The German states, Arthur Gunlicks has written, “are responsible for executing as matters of their own concern most national laws, a large majority of which in turn are given to the local governments that also serve as field agencies. Local governments also execute most Land laws in addition to the ordinances and regulations passed by the local councils in their roles as instruments of local self-government. Thus, the local level is the primary focus for the administration of the laws and regulations of all levels in Germany.”53 Th is complex, multitier system of administration is sometimes referred to as “administrative federalism,” pursuant to which “the federation carries the greatest responsibility for legislation, but the Länder are generally responsible for [its] administration. . . .”54 Administrative federalism will be discussed in

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greater detail below, but it should be noted here that the federation had increasingly sought to prevail upon both Land and municipal autonomy in the administration of the law, largely through legislated mandates. The 2006 federalism reform barely touched matters of local self-government but, significantly, it eliminated federal mandates. Gunlicks notes “[n]ew provisions . . . were added to Articles 84 and 85 that state clearly that federal laws may not transfer tasks to local governments, which means that future transfers of tasks will have to come from the Länder that retain constitutional responsibility for their localities.”55 Local government has a long history in Germany. Baron von Stein laid its foundation in the Prussian City Charter Act of 1809, and it came to full realization in the free Hanseatic cities later in the century.56 The autonomy of local government in most parts of Germany, however, was severely limited under the Bismarck Reich and, after a short renaissance under Hugo Preuss’s Weimar Constitution, it was altogether crushed during the Nazi era. After World War II, in accordance with their policy of decentralization, the Allied powers rebuilt the German political structure from the bottom up, restoring local governmental responsibility before authorizing the reemergence of the Länder. Later, when the Länder were reestablished, each Land constitution contained provisions guaranteeing local self-government, reflecting not only the policy of the occupying powers but also the precedents set by similar provisions in the Frankfurt Constitution of 1849 (Article 184), the Prussian Constitution of 1850 (Article 105), and the Weimar Constitution of 1919 (Article 127). Article 28 of the Basic Law continues this tradition by declaring: “Municipalities must be guaranteed the right to regulate all local aff airs on their own responsibility, within the limits prescribed by the laws.” What constitutes a “local affair” is a matter that occasionally works its way to the Federal Constitutional Court. For example, in 1985 the Second Senate declared that municipal fi nancial autonomy is guaranteed by the Basic Law.57 As noted earlier, the Basic Law ensures that municipalities participate in the distribution of tax revenues.58 More fundamentally, in the Hoheneggelsen Case that follows the Court considered the “core function” doctrine for discerning a municipality’s constitutionally protected sphere of authority. Article 93 (1) [4b] of the Basic Law authorizes local governments to lodge constitutional complaints against laws impinging on their right to self-government. Th is, however, is an institutional guarantee of local self-government. The Constitutional Court has thus declined to hear the complaints of individual municipalities whose existence is threatened by otherwise valid boundary changes or annexations.59 As Gunlicks notes, “[t]he institutional guarantee enjoyed by local governments protects the essential content (Wesensgehalt) of local self-government. The concept of essential content refers to activities that cannot be removed without changing the status and structure of the institution.”60

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3.4 Hoheneggelsen Case (1982) 59 BVerfGE 216 [In 1974 the spd-controlled legislature of Lower Saxony passed a law consolidating several communities into one united municipality. The communities in which two-thirds of the population lived wanted to call the new municipality “Söhlde,” while the others preferred “Hoheneggelsen.” The Land parliament designated the new municipality “Söhlde,” in keeping with the practice of naming a new entity after the largest city in the group of consolidated municipalities. After the cdu defeated the spd in Lower Saxony’s 1976 election, the Land parliament passed a new law renaming Söhlde “Hoheneggelsen.” The legislators explained that the choice of “Söhlde” had not reflected prevailing local conditions. By renaming the municipality, they wished to correct the prior mistake as well as to encourage investment in the more centrally located Hoheneggelsen. The city of Söhlde fi led a constitutional complaint on the ground that the new statute interfered with its right of local self-government in violation of Article 28 (2). The Court agreed with Söhlde.]

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Judgment of the Second Senate. . . . A. The constitutional complaint concerns the issue of whether and under what conditions a Land legislature may once again change the name of a municipality after [it has passed a law] to newly form and name the municipality only a few years earlier as part of comprehensive territorial reorganization of local government. B. . . . II. The constitutional complaint is justified. The challenged provision violates the complainant’s right of self-government (Article 28). 1. Article 28 (2) [1] guarantees local units of government jurisdiction over virtually all matters concerning the local community as well as the authority to transact business autonomously in this area. Land parliaments may impose legal restrictions on local selfgovernment if and insofar as these restrictions leave the core functions of this right intact. In determining what constitutes these core functions, one may take historical developments as well as various historical manifestations of self-government into account. [The Court went on to say that part of the historical tradition of local government sovereignty is the right to use the name it has chosen. The locality’s name conveys its legal identity and manifests its individuality. Th is right consequently falls within the essence of Article 28 (2) [1]. Nevertheless, communities have not been immune to state-imposed name changes. Accordingly, most municipal codes provide that either the Land parliament or the minister of the interior can change a municipality’s name under certain conditions. The historical fi ndings indicate that this right was one of those consigned to the sovereignty of the state. To this extent Article 28 (2) [1] contains an institutional but not an individual guarantee of municipal sovereign rights.]

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3. Yet, part of the constitutionally protected essence of municipal autonomy, as it has developed historically, is that such name changes will be made only after the municipality has been granted a hearing. This applies not only to name changes necessary within the context of reorganization procedures but also to all other cases where a municipality is to be renamed against its will. Even § 10 (2) of the German Municipal Code provided for an obligatory, prior hearing. The municipal codes of all Länder now contain this obligation, insofar as they do not already make a name change dependent upon an express petition of the municipality in question. A municipality’s right to use its properly determined name as a manifestation of its individuality and as part of the historical tradition of local sovereignty is not the only consideration that justifies its right to a prior hearing. The constitutional state principle, which holds that a municipality may not be made into the object of state action during a name change, also demands this result. The complainant received a proper hearing during the legislative proceedings. The bill of 19 June 1980 contained the following explanation of complainant’s redesignation: The original naming was an erroneous decision because the district of Hoheneggelsen is geographically the more central district of complainant; the drafters of the bill expected that the complainant would consider its central location and meaning differently in the future than it has in the past when making investments, if the municipality’s continued unchanged existence is to be assured. With this list, the drafters briefly but completely set forth the fundamental reasons for the redesignation. [The Court explained that the Land parliament may infringe on the guarantee of Article 28 (2) [1] only in the public interest and that this guideline stems from the constitutional state principle. Although the redesignation of a municipality requires that its effect on the common good be considered, ultimately the parliament determines whether a given norm is in the public interest. Consequently, the Court gives lawmakers great leeway in this evaluative judgment.] When regulating for the fi rst time an area that consolidates several local communities, the Land parliament cannot, as a rule, maintain the former names of the communities being consolidated but must fi nd a common name. For this reason the legislature has relatively broad discretion when restructuring an area—especially if the communities in question disagree about the name of the newly consolidated municipality. But once the consolidation has taken place and a new municipality with its own name has been formed, the guarantee of local self-government resumes its full weight. The Land parliament must cite overriding considerations of the public good that plausibly explain a redesignation against the municipality’s will. These are lacking in the instant case. When the Land parliament restructured the complainant in 1974, it chose the name of the largest community participating in the consolidation in view of the existing dispute between the former communities over the name that the new municipality would use, just as it had in other comparable cases. The fundamental reason for the name change by the corrective law of February 1981 was the parliament’s aim of taking

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the “central location and meaning of the district of Hoheneggelsen” into account. Further, it wanted to change prospectively the complainant’s past investment behavior, which it considered wrong. Th is aim cannot justify the violation of the complainant’s right to use its name. Moreover, it deviates from the generally applicable aims and procedures for state regional planning in Lower Saxony, according to which the municipality itself may determine the location of the center of its administrative area. No apparent reason justifies why the complainant alone should be deprived of its acknowledged right to determine its own internal development and be compelled, under threat of legal sanctions, to move its administrative center to Hoheneggelsen because of its prior investments. And this, despite the fact that the Land Lower Saxony had approved and encouraged the municipality’s investments only a few years earlier by incorporating the locality of Söhlde into the regional planning program. Further, the corrective law’s professed aim is based on a misunderstanding of the meaning and scope of the right to local self-government. Th is right vests local government with authority over developmental planning and the resulting investment decisions of individual communities to the extent that regional interests meriting protection do not make restrictions necessary. Special statutory treatment that is burdensome only to a few municipalities is inconsistent with this right; this includes treatment that aims to teach local representatives to behave the way the majority in the Land parliament wants it to in matters of local self-government, or treatment aimed particularly at teaching local representatives to heed certain local special interests when deciding upon plans and investments. The legislature also cannot justify this treatment by combining these reasons with the speculative hope of reducing tensions and facilitating integration. We need not reach the issue of whether the state’s redesignation of the complainant would have been an appropriate and reasonable means for attaining the goal pursued by the legislature, since the parliament cites no constitutionally recognized grounds for the name change that advance a public interest.

∂

The Core Functions of Local Government. When the Court speaks of the essence of communal autonomy it is referring to certain core functions (Kernbereich) of local government that must be protected against federal or state encroachment. Not all local affairs, however, are core functions. The transfer of certain powers to the federation, the expansion of cooperative federalism, and the consequent reduction in the number of policy areas deemed exclusively municipal complicate efforts to distinguish between local and nonlocal affairs. At the same time, the Court’s historical approach to determining the essence of local government “could also be used to protect newly acquired local functions.”61 German commentators are unable to agree on a complete list of functions protected by the Kernbereich theory—some reject the theory of core functions altogether—but they, like the Court, do include local rule making, internal governmental organization, and certain aspects of land-use planning as well as personnel and fi nance administration.

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The Kernbereich theory echoes the federalism controversy in the United States triggered by National League of Cities v. Usery (1976).62 Usery held that the commerce clause did not permit Congress to impair the states’ “ability to function effectively in a federal system” or to displace their “integral governmental functions.” In 1985, however, the Supreme Court overruled Usery, claiming, contrary to the approach of the Federal Constitutional Court, that any “reliance on history as an orga nizing principle [for determining the ‘core functions’ of state governments—thus rendering them immune to federal regulation] results in line-drawing of the most arbitrary sort.” 63 But as Gunlicks noted, “it is much easier for the German Court to take a position in favor of local governments, since Article 28 (2) of the Basic Law grants local governments explicit protection, while there is sharp disagreement whether the Tenth Amendment is relevant to protecting American local governments from federal incursions.” 64 Waste Disposal Case. The Federal Waste Disposal Act of 1972 laid down regulations for the collection, treatment, storage, and disposal of waste. Lower Saxony, in implementing the statute, placed the responsibility for waste disposal in the hands of county (Kreis) authorities, in effect taking this function away from lower levels of government. Rastrede, a municipality of seventeen thousand inhabitants with its own garbage pickup and disposal system, fi led a constitutional complaint under Article 93 (1) [4b] of the Basic Law, alleging a violation of its constitutional right to self-government. The Court’s decision reaffirmed the principle of local self-government, holding, as it had in Hoheneggelsen, that “the essential content of communal self-government cannot be undermined.”65 In Waste Disposal (1988) the Court affi rmed these principles concluding that “the essence of communal self-government cannot be compiled into an objectively determinable cata log of functions based on fi xed features but is merely the communal power to assume control over all affairs of a local nature that are not subsumed under powers assigned to other levels of government.”66 But the Court held that, pursuant to federal law, a Land government could legitimately assign the task of waste disposal to public corporations other than municipalities. Also, in the light of developing technologies and the administrative efficiency associated with more centralized authority, waste disposal could no longer be regarded as exclusively an affair of the local community. Waste Disposal was a cautious judgment. Economic considerations alone, said the Court, may not be allowed to defeat the principle of local self-government; in weighing economic efficiency against the value of local control, a heavy thumb must be placed on the side of the latter to ensure that the principle of self-government is given its proper place in the Basic Law’s overall governmental scheme. Waste Disposal, like other decisions considered in this chapter, reveals the active role the Constitutional Court plays as a balance fulcrum when adjudicating confl icts between competing levels of government.

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bundesrat, reform gridlock, and modern federalism The Bundesrat is the mainstay of German federalism. It was designed to safeguard the interests of the Länder.67 To accommodate the interests of the new eastern Länder, the Unity Treaty amended Article 51 of the Basic Law, changing the allocation of votes in the Bundesrat. As before, each Land is entitled to at least three voting members, but now Länder with more than two million people are entitled to four votes, those with more than six million receive five votes, and those with more than seven million receive six votes. (In the past, the largest states had five votes.) Unlike each American state’s two U.S. senators, however, these delegations to the Bundesrat represent the Länder in their corporate capacities and not the people directly. Th is means that each state’s delegation is drawn from the respective Land government, and the membership of a state’s delegation typically changes “as a result of a change in the cabinet due to Land elections.” 68 The Bundesrat is a truly federalist institution, but only so long as the scheme for casting the votes of each state’s delegation to the Bundesrat preserves the priority of Land over party. Voting in the Bundesrat. A Bundesrat delegation represents the interests of the Land government in federal lawmaking and administration. To underscore this fact and its federalist implications, and to protect against the creeping influence of party politics in the Bundesrat, Article 51 (3) of the Basic Law ordains that “[t]he votes of each Land may be cast only as a unit. . . .” Thus, a Land government speaks with one voice in the Bundesrat, without respect to the partisan makeup of that government. Th is can lead to difficulties, considering that, as is the case on the federal level, Land governments are typically formed by party coalitions, sometimes including less-than-harmonious unions. Arthur Gunlicks described such situations in these terms: “In case the Land has a coalition government and parties in the government do not agree on how to vote, the Bundesrat members from that Land will most likely abstain; this has the effect of a negative vote, since only positive votes are counted. All coalition governments sign detailed agreements before they form a government, and these include provisions concerning voting procedures in the Bundesrat.” 69 The heated debate over immigration reform legislation proposed by the spd/Green federal government in 2002 led to a breakdown in Brandenburg’s unified voting in the Bundesrat. The incident provided the Constitutional Court with an opportunity to rule on the constitutionality of voting schemes in the Bundesrat.70 3.5 Immigration Act Case (2002) 106 BVerfGE 310 [In the spring of 2002 the Bundestag passed a controversial immigration bill that was proposed and supported by the spd/Green coalition government led

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by Federal Chancellor Gerhard Schröder. Recent Land elections, however, had given the cdu/csu a majority of votes in the Bundesrat, which would have to consent before the law could enter into force. To obtain the Bundesrat’s consent, Schröder’s government had to count on Brandenburg to cast its block of four votes in favor of the bill. But Brandenburg’s government at the time consisted of a coalition between the state branch of Schröder’s spd and the state branch of his federal opposition, the cdu. When Brandenburg’s minister-president—a Social Democrat aligned with Schröder—was called upon to deliver the Land’s votes in the Bundesrat, he cast all four in favor of the bill, thereby ensuring the Bundesrat’s consent even though a cdu member of Brandenburg’s delegation loudly cast his vote individually as “no.” The chamber’s acceptance of Brandenburg’s block of votes as a “yes”—despite this voiced objection—elicited cries of foul play from the conservative parties. Federal President Johannes Rau, after considering the protests, signed the law. Six of the Länder that abstained or voted against the bill turned to the Federal Constitutional Court in an abstract review proceeding, arguing that the events surrounding Brandenburg’s Immigration Act vote in the Bundesrat did not satisfy the Basic Law’s “consent” requirement under Article 78. The Second Senate upheld the challenge over the vigorous dissents of Justices Osterloh and Lüebbe-Wolff.]

∂

Judgment of the Second Senate. . . . C. The application seeking review of the constitutionality of the statute is wellfounded. The Act to Control and Restrict Immigration and to Regulate the Residence and Integration of eu Citizens and Foreigners of 20 June 2002 [Immigration Act] is incompatible with Article 78 of the Basic Law and, hence, void. Because it contains provisions concerning the administrative procedure to be carried out by the authorities of the Länder, the whole of the Immigration Act requires the consent of the Bundesrat in accordance with Article 84 (1) of the Basic Law. There was no majority of Bundesrat votes, which is required by Article 52 (3) [1] of the Basic Law for such consent. The president of the Bundesrat was not permitted to count Brandenburg’s block of votes in favor of the Immigration Act. The president of the Bundesrat declared that the body had given its consent to the Immigration Act after the other Länder had been called on to cast their votes. But his determination had no legal effect because Brandenburg did not consent to the Immigration Act. I. The Land Brandenburg did not assent to the Immigration Act because, when the Land was called on, the votes were not cast uniformly. The variation in the votes cast by Brandenburg was not cured by the further course of the balloting process. 1. a. The Bundesrat is a collegial constitutional body of the federation that consists of delegations sent by the Land governments. It is not formed by the Länder. Article 50 of the Basic Law describes the function of this federal constitutional body in simple terms: “The Länder shall participate through the Bundesrat in the legislation and

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administration of the federation and in matters related to the European Union.” Th is participation takes place, not directly, but through the agency of the delegates to the Bundesrat who are dispatched by the Land governments. The Länder are in each case represented by their Bundesrat delegates. The votes of a Land are cast by its Bundesrat delegates. The person from among these representatives who will cast the votes of a Land is, as a rule, determined by the delegates themselves or by the respective Land government in the run-up to a Bundesrat session. The Basic Law expects that each state’s votes will be cast uniformly and respects the practice of the block vote [pursuant to which all of a Land’s votes are cast by one member of its delegation], the holders of which are designated by each Land autonomously, without, in turn, interfering in the constitutional sphere of the Land with instructions and determinations. It follows from the Basic Law’s conception of the Bundesrat that a member of a Land’s delegation to the Bundesrat can, at any time, contradict the votes cast by the holder of the Land’s block vote. In these circumstances the preconditions for accepting the block vote cease to apply. The president of the Bundesrat, therefore, accepts the vote of an individual Bundesrat delegate as having cast the votes for all the delegates of a respective Land unless another delegate from that Land casts a confl icting vote. b. The votes of a Land are to be cast uniformly in accordance with Article 51 (3) [2] of the Basic Law. The act of casting a Land’s votes occurs with the voluntary announcement of the votes of a Land. Where several votes are cast by a Land’s Bundesrat delegates, they must concur. Here, the Land Brandenburg, when called on in the voting procedure, did not cast its four votes uniformly. . . . In the present case, Bundesrat Delegate Ziel initially answered “yes” for Brandenburg, followed immediately by Bundesrat Delegate Schönbohm’s contradictory response “no.” The Brandenburg Minister-President Dr. Stolpe, and Minister Prof. Dr. Schelter—Bundesrat delegates also present—did not respond when the Land was called on. From the unambiguous declarations of Bundesrat Delegates Ziel and Schönbohm, it followed that the Bundesrat delegation from the Land Brandenburg had not cast uniform votes within the meaning of Article 51 (3) [2] of the Basic Law. The president of the Bundesrat correctly determined this as a formal matter at the time the confl icting votes were declared. 2. During the ensuing course of the ballot the inconsistent votes cast by Brandenburg’s delegation were not cured and then converted into a uniform vote of approval. The course of the ballot that followed is not legally relevant because it constituted a departure from the constitutionally required form of the voting procedure. In a voting procedure that is part of the legislative process, conduct that is contrary to the required form cannot change the legal impact of the preceding conduct, which itself did not correspond to the formal requirements. The president of the Bundesrat, as chairman, had no right to inquire of Minister-President Dr. Stolpe of the intent of the Land Brandenburg regarding its votes. Even if one were to presume such a right, the inquiry should have been addressed not only to the Minister-President, but also to Minister Schönbohm [the delegate who had cast the contradictory “no” vote].

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aa. Where ambiguities occur in the course of the ballot, the president of the Bundesrat is entitled to bring about a clarification with suitable measures and to work toward an effective vote by the Land. Th is corresponds to the Bundesrat president’s duty as an unbiased session chair, on whom it is incumbent to clearly determine the will of the Bundesrat in the legislative procedure. Article 78 of the Basic Law, in conjunction with the principle announced in the Basic Law that Germany will be a constitutional state, requires that the will of the participating constitutional bodies be determined in a way that it is attributable to them; this applies to the formal promulgation of legislation by the Bundestag, as well as to the consent of the Bundesrat. When ambiguity might require additional inquiries is a matter that can be examined by the Constitutional Court; nevertheless, the president of the Bundesrat has a prerogative for assessing and correcting any ambiguities. The right to inquire, however, ceases to apply if the uniform will of a Land clearly does not exist and, in view of the overall circumstances, cannot be expected to come into being during the course of the balloting. The intention of the Land Brandenburg to split its vote was evident. Bundesrat Delegate Schönbohm had presented his political position in unmistakable form in the plenary debate immediately before the ballot. He would not agree to the Act, he said, and he would voice his objection loudly and clearly in full knowledge of the ramifications under Article 51 (3) of the Basic Law. Bundesrat Delegate Schönbohm also had clearly outlined the goal of his conduct. He wished, with his “no” vote, to prevent Brandenburg from casting a uniform block of its Bundesrat votes. It was also generally known that the Brandenburg Land government did not have a rule for casting the Land’s votes. Some of the contributions to the plenary debate, as well as the careful legal preparation by the parties involved, demonstrate that a uniform political decision had not been reached by Brandenburg’s delegation prior to the Bundesrat session, nor was it expected to be achieved in the course of the session. Instead, the delegation’s disagreement was clear. The lack of uniformity was then formally recorded, as expected, when the Land Brandenburg was called upon to cast its votes. [Dissenting Justices Osterloh and Lübbe-Wolff did not dispute that the Länder themselves do not hold the seats in the Bundesrat, but agreed with the majority that the Länder are represented in the Bundesrat by the individual delegates. The dissenters also agreed with the majority’s conclusion that each individual member of a delegation enjoyed the right to vote, but that the Basic Law would allow that right to be exercised through a “leading” member of the delegation pursuant to the block vote procedure. Justices Osterloh and Lübbe-Wolff departed from the majority, however, in their conclusion that Brandenburg’s split vote should not be viewed as an invalid (and thus, in the view of the majority, ineffective) vote, but rather, as failing to “constitute an act of voting” altogether. Th is, the dissenters argued, necessitated the presiding officer’s efforts to obtain a vote from Brandenburg’s delegation. The dissenters then argued that, even if Brandenburg’s split vote were to be characterized as invalid, “the Land still had

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the right to correct its voting afterwards.” The dissenters also concluded that the Bundesrat president’s method for facilitating the correction and clarification of Brandenburg’s vote should not be regarded, in the majority’s unnecessarily formalistic terms, as an evident irregularity in the Bundesrat’s voting proceedure.]

∂

Power of the Bundesrat and Gridlock. The Basic Law does not place the Bundesrat on an equal footing with the Bundestag. The Bundestag is Germany’s popularly elected parliamentary body. By contrast, the Bundesrat, while not legally a parliamentary body, enjoys the right to participate in the national legislative process. The Bundesrat wields a suspensive veto over legislation generally and an absolute veto over all legislation affecting the vital interests of the Länder. A suspensive veto can be overridden by an equivalent vote in the Bundestag. Still, if the legislation affects the interests of the Länder, the Bundesrat’s consent is required. Actions constitutionally requiring the Bundesrat’s consent include proposed constitutional amendments, all laws affecting state tax revenues, and all laws and directives impinging on the administration of federal law by the Länder. An expansive interpretation of Länder competence under the last category would have the de facto result of expanding the Bundesrat’s legislative prerogatives. The practical effect of an expansion of the Bundesrat’s consent power is a serious matter because it can create friction—even deadlock—between the two legislative chambers. The attempted immigration reform of 2002 demonstrates the critical importance of the Bundesrat’s expanded power. If different political parties are ascendant in the two chambers, then the majority in the Bundesrat, capitalizing on the latter’s expanded consent authority, can all too easily block the parliamentary majority’s legislative agenda in the Bundestag. It is no longer rare for the two houses to split along partisan lines. In the early 1960s, for example, a conservative Bundestag (and federal government) squared off against a Social Democratic Bundesrat. In the early 2000s, the situation was reversed. By 2011 the roles had switched again, with Chancellor Merkel’s conservative-liberal government and parliament confronted with a Social Democratic majority in the Bundesrat. The problem of parliamentary policy being blocked by the Bundesrat fi rst occurred in the mid-1970s. The Bundesrat, dominated by Christian Democrats, wielded its authority against the Social Democratic majority in the Bundestag in a manner that virtually asserted the Bundesrat’s equality with the Bundestag in the national legislative process. The theory of co-responsibility, as several state governments called it, was a central issue in the Bundesrat Case. Blocking the will of the parliamentary majority in this manner, essentially using an almost purely federalist institution to pursue partisan ends, has brought the Bundesrat’s authority under fi re and played a large part in fueling persistent calls for federalism reform. The Abortion I (1975; no. 7.4) and Conscientious Objector II (1978) cases featured interbranch disputes highlighting the differing perspectives of the two houses.71

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When the Bundesrat objected to an abortion bill passed by the Bundestag, the latter in turn voted to override the objection, holding that the Bundesrat’s consent was unnecessary. The dispute resolved itself into a disagreement over the nature of the statute. Was it a substantive change in public policy, for which the Bundesrat’s consent would not be required, or was it a matter of administrative federalism, that is, affecting the administration of federal law, in which case the Bundesrat’s consent would be required? The Bundesrat argued that its consent was necessary because the substantive legal change vitally affected the meaning and scope of the states’ administrative procedures. The Court rejected this claim on the authority of the rule set forth in the Bundesrat Case, holding that the Länder enjoy even wider latitude than previously assumed to structure the administration of the statute and thus need not participate in the promulgation of the relevant legislation. The outcome of Conscientious Objector II, however, favored the Bundesrat. In 1977 the Bundestag modified the procedure for determining whether prospective draftees are entitled to conscientious objector status. Instead of appearing before a board to establish the sincerity of their claim—a process administered in different ways in the various Länder—applicants now automatically could receive the exemption simply by notifying the board in writing that they were conscientiously opposed to military ser vice. The statute did not receive, nor did the Bundestag seek, the consent of the Bundesrat. Pursuant to Article 87b (2), the conscription statute had authorized the Länder to implement the legislation on behalf of the federation.72 The Court held that since the statute expanded the administrative responsibility of the Länder—a responsibility transferred to the states with the Bundesrat’s consent—the Bundesrat’s consent was once again required. The newly liberalized rule on conscientious objection “fundamentally transformed civilian alternative ser vice into a second form of community ser vice,”73 thus imposing on the Länder a much greater responsibility for fi nding community ser vice jobs for conscientious objectors. Such a large shift of responsibility, said the Court, is permissible only with the consent of the Bundesrat. The upshot of these and related cases was that any law containing provisions extending or prolonging the administrative procedures of Land agencies came to require the consent of the Bundesrat even though the law as originally enacted had already received its required consent.74 Even if a subject matter is clearly within the federation’s exclusive legislative authority, and even if the law in question is silent with respect to local administrative procedures, the Bundesrat’s consent nevertheless may be necessary if the law substantially affects those procedures or effectively requires the Länder to change them in order to effectively administer the federal law.75 3.6 Bundesrat Case (1975) 37 BVerfGE 363 [The question in this case was whether a later amendment of a law that originally required the consent of the Bundesrat also is subject to an absolute veto

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by the Bundesrat, even if the amendment itself does not affect a matter requiring the Bundesrat’s consent. In 1972 the Bundestag passed the Pension Reform Act. Because the act regulated the procedures of Land administration, it required and received the Bundesrat’s approval. The Bundestag amended the act one year later, but the amendment did not change its essential content. Thus the Bundestag maintained that the amendment did not require the Bundesrat’s consent. Rhineland-Palatinate and Bavaria invoked the Constitutional Court’s abstract judicial review jurisdiction and petitioned the Court to vindicate the Bundesrat’s veto right, thereby assuring the Bundesrat a position of coresponsibility with the Bundestag in Germany’s legislative system. The Court, over a dissenting opinion from Justices von Schlabrendorff, Geiger, and Rinck, rejected this interpretation of the Basic Law.]

∂

Judgment of the Second Senate. . . . C. II. 1. . . . [The fact] that the Pension Reform Act required the consent of the Bundesrat . . . does not establish that the . . . amending act also requires such consent. Not every statute amending a law that originally required the Bundesrat’s consent is subject, for this reason alone, to the consent requirement. The Basic Law contains no provisions from which to deduce such a principle. . . . a. The distribution of authority between the federation and the Länder, as provided by the Basic Law, demands protective measures against the danger that ordinary legislation may produce distortions of the system that are not within the purview of the Basic Law. The provisions in the Basic Law requiring consent of the Bundesrat—including Article 84 (1)—serve this purpose in the interest of the Länder. Consequently, this article requires that a law containing provisions that regulate Land administrative processes receive the consent of the Bundesrat—as the federal body through which the Länder participate in promulgating federal law. By approving the Pension Reform Act in its entirety, the Bundesrat gave its approval to those parts of the act regulating the states’ administrative procedure. With its consent to the original Reform Bill the Bundesrat approved this “penetration” into the sphere of the administration of federal laws that Article 83 guarantees to the Länder. If, in a later amending act, no new “penetration” into the sphere reserved to the Länder occurs and no renewed distortion of the system results, then the amending act does not require the consent of the Bundesrat. . . . b. . . . The Bundestag adopts federal law pursuant to Article 77 (1). The Bundesrat merely participates in the legislative process (Article 50). . . . In this connection it is important to realize that the requirement of consent to a statute under the Basic Law represents an exception to the rule. Only in certain explicitly enumerated cases in which the states’ field of interest will be affected in a particularly intensive way does the Basic Law require consent. . . . The Bundesrat has no general right of control that can be derived from this principle. . . .

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c. It is true that the Bundesrat examines the entire content of every law requiring its consent, not only those provisions that bring the consent requirement into play. The Bundesrat, therefore, may refuse its consent to a law containing substantive norms as well as provisions respecting states’ administrative procedure because it disagrees with the substantive provisions. . . . d. But it does not follow from the fact that the Bundesrat’s consent applies to the entire statute that every subsequent amendment of that law also requires the Bundesrat’s consent. Rather, the view that a law requiring consent is a legislative unit speaks against a consent requirement for amending statutes. . . . The amending statute is also a technical legislative unit. The Court must independently and continually examine all prerequisites for its legislative adoption just as in the case of any other law. It must determine whether the Parliament had the authority to enact a law of this content and whether the law requires the Bundesrat’s consent by virtue of its content. If the law does not itself contain provisions requiring consent, and if it also amends no such provisions, then it does not require the Bundesrat’s consent. . . . e. A further consideration supports this result. Nothing precludes the Bundestag, in exercising its legislative discretion, from using several laws to regulate a subject. It can, for example, put the substantive provisions in one law, over which the Bundesrat only has a suspensive veto [see Article 77]. The Bundestag can then enact provisions respecting the states’ administrative procedure in another law that requires Bundesrat consent—as not infrequently happens in practice. If one accepted the argument of the Bundesrat that every amendment of a law requiring Bundesrat consent in the first instance in turn requires Bundesrat consent for later amendments, then, in the case of bifurcated legislation, only the law containing substantive provisions would require the renewed consent of the Bundesrat. What if substantive and procedural provisions were originally included in one statute that required the Bundesrat’s consent? Following the Bundesrat’s argument, subsequent amendments to this law that affect only the substantive provisions would require the Bundesrat’s consent. But it would be absurd to decide these two cases differently. . . . 2. Nonetheless, there are a number of cases in which the Bundesrat’s consent is necessary for the amendment of a law that originally required the Bundesrat’s consent. Th is is apparent when the amending law contains new provisions that, in their own right, require the Bundesrat’s consent. The same is true when the amendment affects those provisions of the original statute that triggered the need for the Bundesrat’s consent. Also included is the case in which a statute amends another statute requiring consent and containing substantive norms as well as provisions respecting the states’ administration. To be sure, the amending statute may be confi ned to substantive matters. But it might make such changes in this realm that it gives an essentially different meaning and scope to the administrative provisions it does not expressly amend. . . . [The Court went on to fi nd that the amending law in this case did not regulate Land procedure and thus held that the Bundesrat’s consent was not required.]

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Justices von Schlabrendorff, Geiger, and Rinck, dissenting. . . . Everyone agrees that the Basic Law contains no express provision requiring the Bundesrat’s consent for the amendment of every statute that itself requires such consent. It cannot in the least be deduced from this that an amendment would require consent only when it falls within the rule of Article 84 (1) or another express provision of the Basic Law—especially since, according to our decision of 24 February 1970, the Basic Law does not exhaustively list the cases in which a law requires consent. 3. a. . . . It is assumed that an imbalance between the federal legislative bodies would result, to the prejudice of the Bundestag, if the Bundesrat’s consent were to be required for every law that amends a statute that originally required the Bundesrat’s consent. But this assumption has not been proven. . . . The argument . . . that the exception would become the rule and the rule the exception is just as unconvincing. . . . b. For the instant case . . . it is quite irrelevant how we should generally determine the relationship between Bundestag and Bundesrat in the legislative process. . . . When a statute requires consent, the position of the Bundesrat is no weaker than that of the Bundestag. . . . Everyone agrees that consent to a statute means consent to the entire statute as a legislative unit. . . . . . . The amending law is, to be sure, a new legislative unit, . . . but not an . . . independent, enforceable regulation in itself; it derives its meaning only in connection with the law it amends. . . . The essential content of the amending statute necessarily becomes a part of the original statute that undoubtedly required consent because of its content and continues to require consent so long as it exists. . . . Finally, the consent requirement . . . follows from the further consideration that legislation is a political process that demands compromise. . . . The addition of new material by an amending law . . . alters the content of that compromise, and one cannot preclude the possibility—indeed it is quite likely—that the Bundesrat would not have agreed to this new compromise. . . . 4. In addition, our position is consistent with this Court’s previous decision, in which the Court held that the Bundesrat must approve all regulations issued under a statute requiring consent pursuant to Article 80 (2). It would hardly be comprehensible to assume that regulations implementing such a law . . . required the Bundesrat’s consent but that amendments do not.

∂

The Bundesrat and the Reform of German Federalism. In the Bundesrat Case the Court rejected the theory of co-responsibility. Nonetheless, the Bundesrat developed into a virtually equal player on the field of national legislation. David Conradt noted: The framers of the Basic Law anticipated that only about 10 percent of all federal legislation would require Bundesrat approval and hence be subject to the chamber’s veto. In practice, however, through bargaining in the legal committees in each house and judicial interpretation, the scope of the Bundesrat’s absolute veto power has been enlarged to the point at which it can now veto roughly 60 percent of all federal

Feder alism 119 legislation. Th is unforeseen development occurred largely because many federal laws which refer to matters not subject to Bundesrat veto nonetheless contain provisions that set forth how the states are to administer and implement the legislation. Citing Article 84 of the Basic Law, the states have argued that, since they are instructed as to how the federal legislation is to be administered, the legislation requires Bundesrat approval in both its substantive and procedural aspects.76

By jealously guarding and in some instances broadly interpreting the Bundesrat’s consent power, the Constitutional Court helped to transform the Bundesrat from the mere checking institution that it was in the 1950s and 1960s into one of the most powerful institutions in the Federal Republic.77 Moreover, in giving its consent to numerous constitutional amendments over the years, at least half of which resulted in the expansion of the federation’s power, the Bundesrat, through skillful maneuvering, ensured that its consent would be constitutionally required in the exercise of these new powers. After the adoption of a constitutional amendment in 1992 (Article 23), the Bundesrat’s power also extended deeply into the realm of European and foreign policy. Conradt noted the criticism of the expansion of the Bundesrat’s power and the role that phenomenon has played in rousing calls for reform. The enlargement of Bundesrat power . . . has prompted some students of constitutional politics to propose that the powers of the Länder and Federal Government be more explicitly stated in the constitution. . . . In recent years the growing debate over the inability of the state to enact meaningful reforms has included frequent proposals to scale back the chamber’s veto power. Th is is one topic that a new constitutional reform [is] expected to address. . . . All these developments and potential future changes make the current Bundesrat a much more political institution and thus a greater object of controversy than it was in the early years of the Federal Republic.78

The ability of the Bundesrat to block federal legislation came to a head during the early 2000s when Federal Chancellor Gerhard Schröder’s spd/Green federal government pursued a range of economic and labor-market reforms that were ultimately held at bay by the cdu-dominated Bundesrat, leading to what some critics referred to as reform gridlock (Reformstau). There was deep division in the country over the efficacy and propriety of Schröder’s “Agenda 2010” reform package, but there was broad sentiment that some reform was necessary (in the 2005 national election the cdu opposition also campaigned on a reform platform) and, in any event, Schröder’s Agenda 2010 had the benefit of a clear (if slender) majority in the Bundestag. Th is raised the question anew: Should the Bundesrat be allowed to thwart the will of the prevailing, popularly elected parliamentary majority? Criticism flowed in the other direction as well. Arthur Gunlicks noted that “according to many critics, . . . the federation has taken on too much responsibility for legislation,” choking off the power of the states through its expansive exercise of concurrent and joint-tasks legislative authority.79 Th is mutual antagonism, and the often opaque interdependence between

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the competence of the federation and the states, has come to be known as political interconnectedness (Politikverflechtung). Both sides along the partisan and federalist axes seemed to agree that a broad reconceptualization of German federalism was necessary if the Reformstau was to be broken. A broadly representative commission was on the verge of hammering out the details late in 2004, including the Bundesrat’s surrender of its veto power over some areas of federal legislation in exchange for obtaining greater authority over some fields that had come to be dominated by the federation. As the discussion in the section below will make clear, it was hardly surprising that the commission’s efforts ultimately foundered on the allocation of authority between the federation and the Länder over education policy. A year later, when Chancellor Angela Merkel engineered a “grand coalition” of Christian and Social Democrats after a razor-thin federal election, there was new hope of achieving significant changes in the division of legislative power between levels of government. The coalition parties proceeded to introduce major proposals along these lines. Earlier, in the section on apportionment and distribution of revenue, we identified important changes that the 2006 amendments wove into the “fi nancial constitution.” In the following section, we also describe related changes in the distribution of legislative power brought about by major amendments to the Basic Law in both 2006 and 2009. All these changes were designed to streamline the policymaking process in the German federal system, a process that often had been obstructed by the Bundesrat.

division of legislative power The Basic Law divides legislative power between the federation and the Länder. It reserves the bulk of such power to the Länder, but over the years much of this lawmaking authority has gravitated to the federation.80 Thus, most laws enacted in Germany are federal laws. But under the Basic Law their administration is mainly the responsibility of the Länder, with only a limited number of administrative competences allocated to the federation. Th is system of “administrative” federalism, as it often is called, encourages flexibility in adjusting national policy to local conditions.81 The system is complex, as dozens of articles in the Basic Law define the interlocking relations between federal and Land governments. Many of these articles, such as those discussed earlier in the section on the apportionment and distribution of tax revenue, contain exceedingly detailed provisions. These provisions have been the pivotal focus of numerous constitutional amendments, in many instances shift ing power from the Land to the federal level, usually to meet needs not contemplated by the framers of the Basic Law and occasionally in response to the decisions of the Federal Constitutional Court.82 Germany’s scheme of divided powers and administrative federalism was originally set forth in sections of the Basic Law dealing respectively with federal legislation (Articles 70 to 75) and the execution of federal law (Articles 83 to 91). According

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to the latter provisions, the Länder are charged with implementing federal law subject to the supervisory authority of the federal government. For this reason, most administrative authorities in Germany are Land agencies, except that federal law may provide for the uniform training of civil servants and other public employees. Federal administration is largely confi ned to those limited areas of public policy for which the federation is solely responsible. As for the division of legislative power laid out in Articles 70 to 75, the Basic Law in its earliest version included a short list of subjects over which the federation would have exclusive competence (Article 73). In addition, under Article 75, the federation was empowered to enact general provisions of law or “framework” laws on subjects such as land distribution, regional planning, and the legal status of Land public servants. Each of these areas fell under the preliminary competence of the Länder, but the federation was empowered under Article 75 to provide the overarching “framework” for carry ing out state and local laws related to these matters. Article 74, fi nally, extended the concurrent legislative authority of the federation and Länder to nearly all other fields of public policy, including civil and criminal law. The Länder could regulate these subjects as they wished but only if the federation failed to exercise its legislative rights. Article 72 (2), however, provided that the federation’s concurrent and framework authority could be exercised only when necessary to effectively regulate the field and to avoid threats to the “maintenance of legal or economic unity, especially the maintenance of equivalent living conditions beyond the territory of any one state.”83 Thus, except as otherwise provided or permitted by the Basic Law, the exercise of public authority and the discharge of public functions remained with the Länder. Th is fact, however, would change with Germany’s political and constitutional development. In the ensuing decades, social and political change transformed the face of the Federal Republic. The Basic Law’s division of legislative power between federation and Länder would change accordingly and substantially, mostly taking the form of transfers of authority to the national level. By the 1990s some twenty amendments had shifted legislative power to the federation. Th is was accomplished both by major additions to the exclusive powers of the federation and by an expanded list of subjects over which the federation would have concurrent jurisdiction, the expectations being that the federation would enact preemptive legislation in these areas to the exclusion of parallel legislation by the Länder. These new concurrent powers included the making of regulations on organ transplants, state liability, hospitalization costs, waste disposal, air pollution, weapons and explosives, the promotion of scientific research, and the production and utilization of nuclear energy. In 1969, with the enactment of the 22nd Amendment to the Basic Law, the federation’s catalogue of “framework” legislative powers under Article 75 was further extended to include “general principles governing higher education,” an area of lawmaking the federation would assertively enter to assist the Länder in meeting the ever-increasing demands of maintaining Germany’s institutions of higher learning. Equally significant was the enactment of the 28th Amendment to the Basic Law in 1971, creating a new Article 74a, which extended the concurrent legislative power of the federation to the salaries and pensions

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of judges and other members of the public ser vice. It is crucial to note that Article 74a, like the other shifts in legislative power cited, expanded the required consent of the Bundesrat because it affected the administration of federal law by the Länder. In addition, as indicated elsewhere in this chapter, the Federal Constitutional Court had often ruled in favor of the Bundesrat in confl icts over the extent of its required consent to legislation passed by the Bundestag. Reforms of 2006 and 2009. The Basic Law’s complex scheme for the division of legislative power between the federation and Länder created persistent, serious problems. On the one hand, the gathering powers of the Bundesrat, in par ticu lar its capacity to impede the will of the parliamentary majority, undermined several federal governments’ attempts to pursue policy reform. As Arthur Gunlicks noted, “[o]ne of the major goals of the proponents of reform was . . . to fi nd ways to reduce the percentage of laws requiring Bundesrat’s consent.”84 On the other hand, commentators faulted the scheme’s complexity and lack of clarity for the drift in policy making, the lack of political accountability, and Germany’s dwindling effectiveness in the European Union. “Essentially,” as Interior Minister Wolfgang Schäuble explained, the reforms fi nally adopted in 2006 “were about assigning government tasks more clearly and slightly reducing the state’s participation in federal lawmaking or reducing the number of laws requiring the states’ approval [via the Bundesrat].”85 The 2006 federalism reform significantly altered the traditional scheme of divided power, in some instances reacting to decisions of the Federal Constitutional Court that had favored the Länder. The federation still possesses only those legislative powers assigned to it by the Basic Law while the remaining unenumerated legislative authority resides in the Länder. But the federation’s legislative competence, exercised by the Bundestag,86 now includes only two broad categories, namely, exclusive and concurrent legislative authority. The federation’s exclusive legislative competence was expanded by the reforms of 2006 and 2009, now reaching subjects formerly within its list of concurrent powers. The new subjects of the federation’s exclusive jurisdiction include regulation of weapons and explosives, production and use of nuclear energy for peaceful purposes, disposal of radioactive material, defense by federal police against international terrorism in cases where certain conditions are met (legislation in this area requires the Bundesrat’s approval), care of those injured or affected by war, and protection against the exportation of cultural goods. The catalogue of exclusive federal power continues to cover foreign affairs and defense, customs and international trade, citizenship and immigration, and postal and telecommunication ser vices. Aviation and railways remain, as before, among these exclusive powers, but amendments to the Basic Law in 1992 and 1993 authorized the privatization of these institutions.87 The Länder may legislate in matters of exclusive federal legislation but “only where and to the extent that they are explicitly empowered [to do so] by federal law” (Article 71). After the reforms of 2006, the federation’s concurrent legislative powers—those shared with the Länder—were expanded to include thirty-three general subject areas. Apart from the broad domains of civil and criminal law, these jurisdictional areas

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included the equally broad fields of labor law, corporate law, public welfare, agricultural policy, economic sector legislation, land transfers, and public health (Articles 72 and 74). Among the most important of the 2006 reforms were the repeal of Articles 74a and 75. With the repeal Article 74a, the status and duties of civil servants (Beamten) of the Länder, local governments, and other public corporations (including judges) were transferred to the newly expanded list of concurrent legislative powers. The repeal of Article 75 eliminated the federation’s authority to enact “framework” laws—that is, policies requiring the coordination of federal and Land legislation, whereby the federation issued broad policy mandates while leaving the regulation of the details for the implementation of those policies to the Länder. These reforms left plenty of space for continued federal-state cooperation. But in certain respects, they also fi rmed up the powers and responsibilities of the Länder. For example, laws enacted pursuant to the federation’s old framework jurisdiction, laws now within its concurrent authority, continued in force as framework laws. But under the 2006 amendments to Article 72 the Länder are permitted to pass laws deviating from this federal legislation. In 2009, under the new Article 87d, the federation also was empowered to delegate to the Länder responsibilities over air transport administration (subject to the Bundesrat’s consent). Additional provisions added to the Basic Law in 2009 called for cooperation and cost-sharing between the federation and Länder in “planning, constructing, and operating systems of information technology.” One purpose of the 2009 changes, laid down in the 57th Amendment to the Basic Law, was to grant both levels of government the authority to specify standards for gathering intelligence and to adopt rules for exchanges between their respective informationgathering ser vices. Finally, Article 23 (committing Germany to the development of the European Union) was amended in 2009 to reinforce the principle of subsidiarity. Article 23 (1a) did so by granting the Bundestag and Bundesrat “the right to bring an action before the Court of Justice of the European Union to challenge a legislative act of the European Union for infringing the principle of subsidiarity,” meaning that such an action may be challenged—in the Bundestag by one-fourth of its members— when it interferes with a legislative competence of the federation or of the Länder. The Jurisprudence of Federalism Reform. Before proceeding to the Atomic Weapons Referendum I Case, it should be noted that the demise of the federation’s framework legislative competence was largely a consequence of decisions of the Federal Constitutional Court from 2004 and 2005. In the reformed scheme the jurisprudential focus remains on the boundary between the federation’s and states’ independent and plenary legislative authority that is marked out by Articles 71 and 74 (exclusive and concurrent legislation).88 Under the previous scheme these federal legislative powers were narrowly interpreted. In the field of exclusive legislation, in the First Broadcasting Case (1961; nos. 3.2 and 8.11), for example, the Court excluded broadcasting (as opposed to the regulation of broadcasting technologies) from the area of “ser vices in the field of telecommunication” over which the federation has exclusive legislative authority. The federation’s concurrent legislative powers also have been narrowly construed.

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Thus, the Basic Law’s theory of federalism leaves little room for a jurisprudence of implied national power. For example, in 1962 the Court struck a federal law regulating the use of explosives because it could not be justified under the concurrent power over “economic affairs.” The law, said the Court, had more to do with maintaining order and security than with furthering economic objectives.89 Ten years later Parliament circumvented the Explosives Control Case (1962) by amending Article 74 to include “weapons and explosives” among the federation’s concurrent legislative powers. But in 2006, as noted earlier, this authority was transferred to the federation’s list of exclusive legislative powers. The Court’s narrow interpretation of the federation’s legislative power as defi ned by the Basic Law is evidenced in the following case. 3.7 Atomic Weapons Referendum I Case (1958) 8 BVerfGE 104 [In the mid-1950s equipping the German army with tactical nuclear weapons was at the top of the Adenauer government’s military agenda. Social Democrats bitterly opposed the plan for nuclear armament. In an effort to show that the public opposed nuclear weapons on German soil, several Social Democratic– controlled cities and states planned to hold referenda on the issue. The Adenauer government challenged the constitutionality of these referenda as an invasion of the federation’s exclusive power over military affairs. Th is case, brought in the form of an abstract judicial review proceeding, challenged the validity of referenda in Hamburg and Bremen. The Court sustained the challenge.]

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Judgment of the Second Senate. . . . B. III. . . . In a federal state, the federal constitution limits the authority of states— and therefore the jurisdiction over which the states exercise authority. The referendum laws of Hamburg and Bremen transgress constitutional limits drawn by the Basic Law. 1. Matters of defense fall within the exclusive jurisdiction of the federation. Article 73 (1) of the Basic Law sets out the authority of the Parliament over matters of defense. Articles 65a, 87a, and 87b confi rm the authority of the federal government over matters of defense. . . . Thus, the federation has sole and plenary [legislative and executive] authority over the task of “defense” as far as it concerns the federal army and its armament. . . . Neither the two referendum laws nor the participation of the people of Hamburg and Bremen in the referenda interfere with the federation’s exclusive authority to determine or technically regulate a matter of defense—for example, arming the federal military. But that is not the decisive point. What is decisive is the clearly recognizable purpose of the referendum laws in Hamburg and Bremen. In the area of defense, especially with respect to arming the military, the federal government has

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chosen a par ticu lar policy with the Bundestag’s approval. The opposition in the Bundestag considers this policy wrong and has fought it passionately. The opposition has not been able to win in the Bundestag but believes that a majority of the people shares its view. It hopes that political pressure resulting from successful referenda will force the federal government to reverse its policy. Speeches by Social Democrats in the Bundestag have clearly expressed this belief. . . . The clear goal of these two referenda—to force the competent constitutional organs of the federation to change a decision—represents an attempted infringement upon the exclusive jurisdiction of the federation. States infringe on the exclusive, autonomous authority of federal organs not only when they try to regulate a matter themselves, but also when they schedule a referendum in an effort to pressure federal organs into changing their decisions. The infringement occurs when a state attempts to form a “will of the state” to oppose the constitutionally formed “will of the federation.” a. The same conclusion is reached if one examines legislative authority to order referenda. . . . In a merely consultative referendum the people take part in the exercise of state authority just as they do in elections and plebiscites. The general cata log of competences in the Basic Law (Articles 73–75) does not contain any provision relating to the authority of the federation or states to enact electoral laws. Nevertheless, until now it has never been seriously doubted that the federation cannot pass electoral laws for a state parliamentary election or that a Land cannot pass electoral laws for the Bundestag election. A Land cannot permit either a referendum or a plebiscite on a subject belonging exclusively to the legislative competence of the federation or a Land referendum on a matter of exclusive federal jurisdiction.

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Legislative Powers of the States. Not confronted with an implied-powers provision similar to the American “necessary and proper” clause,90 the German states possess, fully, those powers and responsibilities not expressly conferred on or exercised by the federation.91 These fully reserved—and unenumerated—powers once included cultural matters, education, hospitals, and various social ser vices. The 2006 federalism reform explicitly assigned some parts of education and health care policy to the concurrent legislative competence.92 In any event, the spectrum of unenumerated powers is short. As the Concordat Case shows, the Court has tended to guard these powers closely, probably because they are so few.93 The states’ victory in Concordat is remarkable in that a local interest prevailed over the national government’s treatymaking authority, producing a result contrary to the outcome in the U.S. Supreme Court case Missouri v. Holland (1920).94 3.8 Concordat Case (1957) 6 BVerfGE 309 [In 1933 Hitler’s regime concluded a concordat (treaty) with the Holy See. The concordat recognized the right of the Catholic Church to freedom of religion

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and control over Church properties. It also included guarantees of religious education in the public schools and state-supported confessional schools for the children of Catholic parents. In 1954 Lower Saxony, a predominantly Protestant Land, provided for nondenominational schools for all children. The federal government, at the urging of the Holy See, contested the validity of the state’s new policy, relying on the Constitutional Court’s jurisdiction over federal-state confl icts. The federal government argued that Lower Saxony had usurped federal authority to conduct foreign relations by refusing to give force to the terms of the 1933 concordat. The Court sustained the validity of the concordat under the general principles of international law but then proceeded to rule that Article 23 of the concordat, guaranteeing confessional schools, is not enforceable in states with confl icting school legislation. Th is case needs to be understood in light of the vigilance with which the Court tends to guard the narrow domain of authority the Länder have managed to reserve to themselves.]

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Judgment of the Second Senate. . . . E. II. We need not here examine the extent of the states’ obligation toward the federation to honor treaties internationally binding upon the Federal Republic of Germany. In no case could the states’ obligation toward the federation to honor the concordat’s educational provisions . . . be derived from the constitutional order created by the Basic Law. Articles 7, 30, and 70 et seq. of the Basic Law have made certain fundamental choices that shape the relationship between federation and Länder. . . . These choices reflect no such obligation. In contrast to the Weimar Constitution, these provisions establish the Länder as the exclusive custodians of cultural leadership. In the area of denominational organization of the school system, only the provisions of Articles 7 and 141 limit this exclusive authority. Th is allocation is an important element of the federal structure of the Federal Republic of Germany. 1. We must proceed from the view that the Länder alone are entitled to make law where they possess exclusive legislative authority. In Articles 30 and 70 et seq. the Basic Law very clearly expresses this principle. Only obligations arising from federal constitutional law limit the legislative freedom of the Länder in this area because the Parliament cannot pass a law in an area where the Länder have exclusive legislative authority. We must, therefore, consider as an important principle of federal constitutional law that the Länder are subject to no limitation upon their legislative authority other than that imposed by the Basic Law. Th is principle also applies to Land legislation that is in confl ict with [preconstitutional] law that has continued validity pursuant to Articles 123 (1) and (2). . . . To bind the Länder constitutionally to the educational provisions of the concordat would flatly contradict their authority to make educational law freely within the limits of the constitution.

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2. With respect to the organization of the school system along denominational lines, the Basic Law made a specific choice that rejected the possibility of constitutionally binding the Länder to the educational provisions of the concordat. Based upon the states’ freedom of action, Articles 7 and 141 of the Basic Law establish the limits within which the Länder parliaments should be confined in this particular area. . . . Th is choice is not reconcilable with the educational provisions of the concordat. . . . 3. [One] can correctly understand the meaning of Article 7 . . . only by considering the background of the entire situation surrounding the [framing of the] Basic Law for the area of educational law. From 1933 to 1945 the Hitler regime did not enforce the educational provisions of the concordat and in many cases allowed them to be violated. After the collapse of the Reich in 1945, the Länder helped to accomplish the civil reconstruction of Germany. They reconstructed civil life during a period when the entire German state was not yet capable of action. As a result, during this time the Länder could alter the Reich’s existing legal regime. Thus, the Basic Law also expressly recognized the changes the Länder made to the Reich’s existing legal regime during this period (Article 125 (2)). In the governmental structure of the Länder the issue of education had par ticu lar importance and was the subject of lively dispute; the Länder often deviated from the educational provisions of the concordat. . . . In the light of this background, the constitution’s framers had to proceed from the fact that a large part of the new educational law enacted prior to the promulgation of the Basic Law contradicted the educational provisions of the concordat. How these events are to be evaluated from the standpoint of international law cannot concern us here. . . . This legal situation . . . made it imperative for the Basic Law to state expressly any intention to constitutionally obligate the Länder to fulfi ll the educational provisions of the concordat. In view of the diversified legal situation in education among the states and the Basic Law’s choices in this area (Articles 7 and 141), the constitution could not have been silent on educational matters if it wished to oblige the Länder to observe the educational provisions of the concordat. Moreover, the Basic Law could not have been content generally to ordain the constitutional validity of domestic law corresponding to international treaties of the German Reich. This order neither removed contradictory state laws nor bound the state legislature to the continued validity of the law. 5. To understand correctly the constitutional order of the Federal Republic of Germany, one must realize that the Basic Law’s division of authority between the federation and the Länder was not a matter of apportioning the power of a totalitarian state. . . . The events from 1945 to 1949 meant more than a change in the form of government. . . . Rather, a fundamental reconstruction gave German public authority an entirely new structure and form in the federation and Länder, in place of the state organization that completely collapsed and was entirely removed after 1945. The fact that this reconstruction took place during a lag time between the development of governmental power in the Länder and the reorganization of the entire German state confronted the framers of the Basic Law with two faits accomplis. On the one hand,

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Land law had largely developed independently and to such a degree . . . that the Basic Law could not ignore it. . . . On the other hand, the Basic Law could not arbitrarily curb the authority of the Länder, if only because of their political influence. The parliaments of two-thirds of the Länder had to accept the Basic Law for it to become effective. . . . In this constitutional and political situation, the federal constitution could not guarantee the states’ acceptance of obligations contracted by the Reich government to the same extent it might perhaps have been able to do . . . had it had as its task the distribution between federation and Länder of the unlimited power of a totalitarian state. In interpreting the Basic Law, one must proceed from the inner harmony of the constitutional structure that gave the German state a new federal and democratic order in place of a totalitarian dictatorship. The supposition that the Länder are obligated vis-à-vis the federation to observe the concordat’s educational provisions is irreconcilable with the basic decisions of the constitutional structure, including the decision to confer upon the Länder supremacy over education policy. [In the next section of its opinion the Court invoked once again the doctrine of federal comity. It seemed necessary to speak of comity here as a way of bridging the gap between the right of a Land to legislate in areas within its authority and the right of the federation to have the Länder respect its international treaty obligations. “Bundestreue demands,” said the Court, “that each state consider the interest . . . of the federation, particularly . . . in the area of foreign relations, where the federation alone is competent.” The Court wished to emphasize the states’ duty of fidelity to the federation in foreign affairs even while vindicating Lower Saxony in this instance.]

∂ Arbitrating the Federal-State Relationship. The legalism inherent in German federalism contains the seeds of perpetual constitutional conflict. The Bundesrat’s efforts to challenge the centralizing tendencies of the federation have been controversial, at least in those areas for which its consent is also required. Constitutional amendments and national reform commissions, like those culminating in the 2006 federalism reform, have also been raised in response to Germany’s more severe federalist tensions. Judicial review by the Constitutional Court provides yet another venue in the struggle to chart the boundary between Land and federal authority. Most federal-state conflicts do not end up before the Court, resolving themselves politically through the mechanisms of cooperative federalism and various forms of coordinated activity among the Länder. Even when governed by different political parties, the federation and Länder have preferred bargaining over litigation as the usual method of settling their differences. “Despite the tendency, in a climate of cooperative federalism, for major developments in the federal system to pass the Court by,” remarked Blair, “rulings of the Bundesverfassungsgericht have been sought and given over a wide range of federal issues and have affected in detail the relations between the Bund and Länder.”95

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As demonstrated by Concordat, an exception to the general affi nity for political resolution of federalist confl icts has been in the vigorously contested field of education and vocational training. Th is seems to be a consequence of two factors: Germany’s long and proud educational tradition with distinct local roots and the belief held by different political camps that, as one set of commentators noted, “education bears the potential for social-engineering.”96 Not surprisingly, the commission empowered to explore federalism reform in 2003,97 prior to the creation of the more politically amenable cdu-spd grand coalition government formed after the 2005 election, broke down when it could not reach agreement on the reform of legislative competence over education policy. In the past, tensions involving education policy have flared, in par tic u lar, with respect to the federation’s exercise of its framework competence over “general principles respecting higher education” pursuant to Article 75 (1) [1a].98 The federation’s framework legislative competence was eliminated by the 2006 federalism reform thanks in no small part to this legacy. But the federation’s interest in education policy is so strong that it also has sought to avail itself of its concurrent legislative authority to gain influence over the field, even where the nexus between an enumerated power under Article 74 and education was tenuous. These cases provide another example of the Court’s tendency not to read any implied powers into Article 74. The Engineer Case for example, involved the defi nition of the scope of the federation’s concurrent legislative authority in the context of policy affecting the training and certification of engineers where the relevant concurrent power was “the law relating to economic affairs (mining, industry, energy, craft s, trades, commerce, banking, stock exchanges, and private insurance).”99 Like First Broadcasting and Concordat, the Engineer Case resulted in a victory for the Länder. Indeed, as already suggested, the vast scope of enumerated federal legislative competences has prompted the Court to guard with special vigilance the little authority that remains with the Länder under the Basic Law. In this sense the residual powers clause of Article 30 is a greater limitation on federal power than the reserved powers clause of the U.S. Constitution’s Tenth Amendment has proven to be. 3.9 Engineer Case (1969) 26 BVerfGE 246 [Article 74 (1) [11] of the Basic Law grants the federation concurrent authority over “economic affairs (mining, industry, energy, craft s, trades, commerce, banking, stock exchanges, and private insurance).” In 1965 the federal government, presumably acting under this authority, adopted a statute designed to protect the professional title “engineer.” The statute set forth educational and occupational standards for the use of the title; it did not regulate the practice of engineering. Th ree persons whose prior training failed to satisfy the new requirements lodged constitutional complaints against the statute, claiming a violation of the right to the free development of one’s personality. The Constitutional

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Court sustained the complaints after ruling that the federal law exceeded the federal government’s authority under Article 74.]

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Judgment of the Second Senate. . . . C. II. I. . . . The restriction of the [federal] regulation to “persons gainfully employed in the economy, particularly in manufacturing or other commercial enterprises,” reflects the concern originally raised against the legislative competence of the federation when the matter was being considered in the Bundesrat. By confi ning the regulation to this group, lawmakers thought that they were legitimately exercising their authority under the concurrent jurisdiction conferred on the federation by Article 74 (1) [11]. 2. The subject regulated by the Engineer Act does not involve a law relating to “economic matters” within the meaning of Article 74 (1) [11]. In contrast to the Imperial Constitution of 1871 and the Weimar Constitution of 1919, the Basic Law forbids a broad interpretation of provisions conferring authority on the federation. Article 30 underscores the legislative priority conferred on the Länder. Article 70 (1) makes this clear by providing that the Länder enjoy the right to legislate to the extent that the Basic Law does not confer legislative power on the federation. The federation is limited to the enumerated powers specified in Articles 73 through 75. “Economic matters” within the meaning of Article 74 (1) [11] extend to regulations of economic life and to commercial activities as such, particularly to the processes of production, manufacturing, and distribution of goods. Regulations pertaining to economic competition and consumer protection are also “economic matters” within the meaning of the Basic Law. Thus, the Ministry of Economics defends the Engineer Act as a measure designed to promote clarity and truth in the conduct of business. A person should be able to transact business in the knowledge that a business partner claiming to be an engineer possesses certain qualifications. The Engineer Act, however, does not accomplish these purposes. It neither prevents unqualified persons from offering engineering ser vices nor does it guarantee that business partners who claim to be engineers do, in fact, have certain credentials. . . . If such persons have engaged in engineering ser vices prior to the enactment of the law and have registered within a two-year period following its entry into force, they may continue to use the title. . . . Moreover, the Engineer Act does not purport to defi ne the professional activity of engineering. . . . Under Article 74 (1) [11], the federation may indeed regulate jobs “in commerce and industry,” defi ne the substance of such positions, and specify the qualifications needed to fi ll them. . . . 3. The federation lacks authority to pass the Engineer Act, however, because the law is not connected to a subject matter within its express authority under the Basic Law [reference here is to the principle of Sachzusammenhang, which was described in the discussion of the First Broadcasting Case (1961; nos. 3.2 and 8.11)]. Federal authority would obtain here only if a subject within the express jurisdiction of the

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federation could not be regulated without simultaneously regulating a subject not specifically within its competence. In short, encroaching upon a subject matter not within the federation’s jurisdiction must be a necessary condition for regulating a subject expressly within its power. The federation may regulate the former only when also regulating the latter. That condition, however, does not exist here. 4. Federal legislative competence also fails in this case because of the nature of the subject matter [Natur der Sache]. [Natur der Sache is a guideline for interpreting the constitution that entails deducing federal legislative authority from the subject matter to be regulated, which, according to its nature, would normally not fall within federal jurisdiction but which only the federation can effectively regulate. The argumentation must be based on an express authorization of federal legislative power and not on an authorization that has no basis at all in the constitution. Examples are the authority to determine the seat of the federal capital and to create national symbols (see Plenum Building Law I Case, 3 BVerfGE 407, 422 [1954]).] The argument that a national uniform policy on the use of the title “engineer” is feasible does not sufficiently warrant an expanded interpretation of federal power. The Federal Constitutional Court . . . has recognized federal legislative competence based upon the nature of the subject matter only if the federation, and only the federation, can regulate certain fields because they constitute, by their very nature, a most individual matter removed a priori from the legislative authority of the federation. Protection of the professional title “engineer,” to the extent that such protection is needed, does not require one uniform plan of regulation by the federation. Uniformity can easily be achieved in this instance by congruent Land laws. . . . III. Because federal lawmakers lack authority, the applicable provision of the Engineer Act is incompatible with the Basic Law. It violates complainants’ basic right under Article 2 (1) and is therefore void.

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Assessing Whether Concurrent Legislation Is Essential. In addition to the Constitutional Court’s strict construction of the legislative powers granted the federation by the Basic Law, Article 72 (2) imposed a separate limitation on the federation’s exercise of its general concurrent legislative authority (and previously on the exercise of its now-abolished framework legislative authority), requiring that such legislation be essential “in promoting equivalent living conditions in the federation or in protecting the legal and economic unity in the general interest of the federation.”100 Whether federal legislation is essential, however, was a question the Court left mainly to the political discretion of Parliament, unless federal legislation impinged upon an area of traditional Land concern.101 The 2006 federalism reform radically changed Article 72 (2):

132 chapter thr ee Th is second [section of Article 72] has now been changed so that the federation no longer has the right to pass legislation under its general concurrent powers; rather, it retains the power to pass “essential legislation” in ten areas only (Article 74 (1) [4, 7, 11, 13, 15, 19a, 20, 22, 25, and 26]). In sixteen areas it has concurrent powers without having to meet the “essential” condition, which some see as having a centralizing effect. A new § 3 states that in six other areas (Article 74 (1) [28–33]) the Länder have the right to deviate from federal laws and that these laws go into effect at the earliest six months after passage, unless the Bundesrat has agreed to a different timetable.102

It seems likely that in overhauling the federation’s authority to enact “essential” concurrent legislation, the 2006 federalism reform took cognizance of the Constitutional Court’s Geriatric Nursing Act Case which expressed a decidedly pro-state skepticism of the federation’s assertion that the challenged law was “essential.” Certainly, the Court’s strict interpretation of the term “essential” in Geriatric Nursing is relevant to the ten areas for which that is still a prerequisite under the revised Article 72 (2). In Geriatric Nursing, the Second Senate of the Constitutional Court abandoned the restraint the Court had long exercised regarding whether federal concurrent legislation was “essential” under Article 72 (2).103 Considering the aforementioned sensitivity about educational matters, it is not astonishing that the confl ict arose in the context of a federal law that sought to regulate the training and certification of geriatric nurses pursuant to Article 74 (1) [19], which still grants the federation concurrent legislative authority over the “admission to the medical profession and to ancillary professions or occupations. . . .” The Court reached the dramatic conclusion that the intent of the framers of the amendments made to the Basic Law in 1994 was to make the “essential” clause of Article 72 (2) justiciable and to deprive the Bundestag of all discretion over the matter. Some have interpreted the Court’s move as suggestive of a reinvigorated federalism jurisprudence that paved the way for the 2006 federalism reform. Th is view is supported by the fact that in exercising its review of the question, the Court recalled that “the object of the federal constitutional system is to open for the Länder independent spheres of competence for par ticu lar and differentiated regulation.”104 After having asserted its power to review the question of whether the federal concurrent legislation was essential, the Court found that the high standard of review it fashioned for resolving the case had nonetheless been satisfied. 3.10 Geriatric Nursing Act Case (2002) 106 BVerfGE 62 [A federal law affecting geriatric nursing care in relevant part established and regulated the professions of geriatric nurse and geriatric assistant. Additionally, the law involved provisions on the purpose and duration of training for a certificate to perform these ser vices. These and other provisions of the law were

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intended to regulate the field and to standardize the ser vices throughout Germany, especially in anticipation of the expected dramatic increase in demand for these ser vices necessitated by Germany’s aging population. Before the enactment of the law there were significant differences in the laws regulating the field at the Land level. Pursuant to the Court’s abstract judicial review jurisdiction, the Bavarian government challenged the federal legislation before the Constitutional Court on the ground that the federation lacked the competence to regulate the field under Article 74 (1) [19] and that, even accepting the federation’s competence to enact the law, the “essential” prerequisite of Article 72 (2) had not been met. The Court held that the federation was competent to regulate the profession of geriatric nurse under its concurrent legislative authority, but not the profession of geriatric assistant. The Court then held that the challenged regulation of geriatric nurses was essential.]

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Judgment of the Second Senate. . . . C. The abstract judicial review petition is admissible. It is well-founded insofar as it relates to the training of geriatric assistants; otherwise it is not well-founded. II. The provisions of the Geriatric Care Law concerning the professional training of geriatric nurses are, pursuant to Article 72 (2) of the basic law, essential to ensure economic unity in the national interest. 1. In the context of the balance between the federation and the Länder, special importance attaches to Article 72 of the Basic Law because it allocates legislative competences. The provision fits into the general rules governing concurrent legislation: the Länder are, in principle, competent to legislate and remain so if the federation does not act; they regain competence if the federation has ceded back to them the right to legislate under Article 72 (3) of the Basic Law because the conditions of Article 72 (2) have subsequently ceased to apply. Only when the federation assumes responsibility for a matter mentioned in Article 74 or Article 74a of the Basic Law is that matter excluded from the competence of the Länder. Article 72 (2) of the Basic Law, however, limits the competence of the federation and makes it contingent upon certain material conditions. The exclusive legislative power of the federation is unrestricted in the context of the list in Article 73 of the Basic Law. But the subject areas listed in Article 74 of the Basic Law represent limits upon the federal legislative competence. Article 72 (2) of the Basic Law forms an additional bar to the exercise of that federal legislative competence. No legislative discretion free from constitutional judicial review exists in regard to the requirements of Article 72 (2) of the Basic Law. The provision can do justice to its position within the scheme of the Basic Law, to its meaning and to the intention of the framers of the constitution, only if its requirements cannot be subjectively determined by the entity whose competence it is supposed to limit. For the purpose of restricting the scope of federal legislation to the matters specified in Article 73 et seq. of

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the Basic Law, the Federal Constitutional Court has long stressed that that limitation requires a “strict” interpretation. . . . In comparable fashion, the requirements of Article 72 (2) of the Basic Law also must be amenable to judicial review. . . . [In considering the history of the framing of Article 72 (2) and the intent of the framers of the 1994 amendment to Article 72 (2) as well as Article 93 (1) [2a], the Court concluded that the amendments had the objective of strengthening the position of the states and ensuring effective constitutional judicial review thereof. The Court explained: “In the amendment to the Basic Law a clear instruction to the Constitutional Court can be seen from the framers of the amendment: the [C]ourt should revisit its previous case law, which now requires correction.”] 4. a. The framers of the constitutional amendment intended that the essentiality clause of Article 72 (2) of the Basic Law should be made justiciable; no latitude was to be left to the federal legislature. . . . b. If the meaning of the provision lies in the protection of the Länder from further erosion of their legislative powers, then that protection will be effective only if the requirement that the legislation be “essential” is understood as a judicially reviewable restriction. The federal parliament must observe the requirements of Article 72 (2) of the Basic Law like any other constitutional restraint and must ultimately allow its enactments to be reviewed by the Federal Constitutional Court with a view to determining whether it has exceeded its competence. For the purpose of reviewing the criteria contained in Article 72 (2) of the Basic Law, a separate constitutional judicial procedure has been introduced in Article 93 (1) [2a] of the Basic Law. Since that procedure permits review only with respect to Article 72 (2) of the Basic Law, that provision would be meaningless if the legal concepts in Article 72 (2) of the Basic Law were to be understood as nonjusticiable. c. The version of Article 72 (2) of the Basic Law [that resulted from the 1994 amendment] does away with the words “to the extent that a need for regulation by federal legislation exists. . . .” Th is language in the previous version of Article 72 (2) served as a basis for the provision’s nonjusticiability. The amendment, instead, contains the criteria that legislation be “essential.” Th is change in wording further establishes the need to depart from the earlier case law of the Federal Constitutional Court. Priority for the Parliament over the Länder in the interpretation of the provision or the exercise of competence cannot be inferred from the wording of the provision; on the contrary, the right of the Länder to legislate, which exists in principle (see Article 70 (1) of the Basic Law), may be restricted only under certain factual preconditions. The scope of judicial review of those factual preconditions depends on their capacity to be ascertained and the extent of any discretion to be given to the Parliament in investigating facts and forecasting actual developments. [Pursuant to Article 72 (2), the federation was not competent to legislate in any of the fields in its concurrent legislative authority if the legislation was not essential (both as to purpose and scope) to achieving either of two objectives: the

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establishment of equivalent living conditions throughout the federal territory, or the maintenance of legal or economic unity. The Court interpreted these objectives and concluded that regulating the training and certification of geriatric nurses, as provided for in the Geriatric Nursing Act, was essential for both legal and economic unity. The Court outlined the analysis and high standards to be used in concluding whether these provisions were essential. The Court fi rst considered the standard for determining if the exercise of federal concurrent legislation is essential to achieve equivalent living conditions or economic/ legal unity. The Court then considered the standard for determining if the extent of the federal legislation is essential.] Within the structure of competences in the Basic Law, where enactments of the federation and Länder are equally capable of fulfi lling constitutional objectives, primacy belongs, in principle, to the Länder (Article 30 and Article 70 of the Basic Law). Article 72 (2) of the Basic Law takes this into account—together with the requirement that federal regulation be essential—and thereby directs the federation toward the least possible interference with the Länder’s authority to legislate. Federal regulation is, therefore, “essential” only insofar as, without it, the respective objective of Article 72 (2) of the Basic Law identified by the legislature in a par ticu lar case as the basis for its action in the specific field to be regulated (either the establishment of equivalent living conditions or the maintenance of legal or economic unity in the national interest) cannot, or cannot sufficiently, be achieved. At the same time, a prerogative for draft ing and formulating the statute must remain with the Parliament. If it has chosen a draft that has both cleared the hurdle of Article 74 (1) of the Basic Law and is also essential, in terms of its purpose and effect, in order to safeguard the legally protected interests in Article 72 (2) of the Basic Law, parts of the draft can then be removed for being over-broad only if the draft, in its entirety, and with it the effect of the statute, is not jeopardized without them. bb. No federal competence exists if enactments of Land law are sufficient to safeguard the legally protected national interests mentioned in Article 72 (2) of the Basic Law. But not every theoretical possibility of action by the Länder is sufficient in that regard. In par ticu lar, the mere possibility of identically worded Land statutes does not exclude a federal competence. Otherwise, since that possibility theoretically always exists, the concurrent legislative competence of the federation would be purposeless. The provision does not seek to delimit the federation’s legislation from that of the Länder. The purpose of the federal constitutional system is to open up for the Länder independent areas of competence for locally or regionally differentiated enactments. . . . c. The review of these requirements is the task of the Federal Constitutional Court. Insofar as present or past facts need to be ascertained for this purpose, in order to verify the correctness or completeness of the circumstances cited by the Parliament, the Court is not subject to any restrictions. For a verdict of unconstitutionality to be reached, however, the statute must be based on a defective assessment

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of facts by the Parliament, meaning that no other, applicable considerations can be invoked in its justification. . . . Taken on its own, the fact that future developments are uncertain cannot suffice to justify allowing the Parliament unfettered discretion. . . . That is because predictive judgements are based on an ascertainment of facts that, for their part, are amenable to examination and evaluation. . . . What is verifiable here, just as with the assessment of present or past factual situations, is, above all, whether the legislature has based its decision on the most complete investigation possible or whether it has overlooked relevant facts. In that regard, the requirement for the most “complete” investigation possible can reasonably relate only to facts that are material to the particu lar sphere of regulation. . . . Insofar as the uncertainties of forecasting can be eliminated by certain empirical data and reliable experiential rules, then any margin for prediction is excluded. . . . The Parliament also has a margin for prediction in the determination of future developments used to assert that the legislation is essential within the meaning of Article 72 (2) of the Basic Law. If a course of events develops other than expected, in many cases only the typically predictable risk inherent in every evaluation of complex future developments is realized. Incorrect predictions cannot, ultimately, be excluded, even when the greatest care is exercised in making them. Therefore, it must be acknowledged that, within certain limits, the Parliament, which cannot avoid forecasts, is entitled to take that risk without having to fear an adverse assessment under constitutional law. . . . The Constitutional Court’s examination of a federal statute by the standard of Article 72 (2) of the Basic Law must include the following aspects: the forecast must be based on assumptions of fact that have been carefully established or can at least be confi rmed in the course of the judicial examination; the forecast must be methodologically sustainable by an appropriate forecasting technique and this must have been followed consistently . . . ; the result of the forecast must be checked to ensure that the considerations on which the prognostic estimation is based have been disclosed with sufficient clarity or that their disclosure is at least possible in judicial proceedings on the constitutionality of laws, and that no irrelevant considerations have influenced the forecast.

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Geriatric Nursing Act Case: An Addendum. It would not be long before the Court, using its newly articulated Article 72 (2) analysis, would declare legislation enacted under color of the federation’s concurrent legislative authority to be incompatible with the Basic Law. Th is time, it was the First Senate that acted. In the Dangerous Dogs Case (2004) federal legislation prohibiting the importation, transportation, and breeding of particularly dangerous breeds of dogs (including the Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bullterrier, Bullterrier, and mixes of these breeds) was challenged by dog breeders as a violation of the right to occupational freedom secured by Article 12 of the Basic Law.105 The Court concluded that

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the law represented a limitation upon occupational freedom, and further concluded that the law did not constitute a “regulation” of the practice of a profession as permitted by Article 12 (1) because the federation lacked the competence to legislate in the field. In par ticu lar, the Bundestag had relied on its concurrent legislative authority under Article 74 (1) [1] in enacting criminal sanctions for violations of the prohibition on breeding the listed dogs. Following the standards announced by the Second Senate in Geriatric Nursing, the Court concluded that the legislation had not satisfied the “essential” prerequisite of Article 72 (2). A month after the decision in Dangerous Dogs, the First Senate shifted the federalist balance back in the direction of the federation, if only marginally. In the Shop Closing Act III Case (2004)106 the Court was confronted with a challenge to modifications to the Shop Closing Act that were enacted in 1996, two years after the 1994 amendments to the federalism provisions of the Basic Law that introduced the essentiality clause in Article 72 (2). The Court explained that if it were to employ the standards announced in Geriatric Nursing, then it would have to fi nd that the 1996 changes to the law were not “essential” within the terms of the amended Article 72 (2). Th is, however, was not the end of the Court’s analysis. As part of the 1994 amendments to the Basic Law, Article 125a also had been added, exempting from the terms of the newly amended Article 72 (2) all federal concurrent and framework legislation on the books at the time. According to Article 125a these exempted laws “remain in force” unless “[a] federal law [provides] that [they] may be superseded by Land law.”107 The Court interpreted Article 125a as leaving the authority to modify such grandfathered legislation exclusively with the federation, unless the federation exercises its discretion to empower the Länder to create a superseding legal regime. The business hours established by the 1996 version of the Shop Closing Act, the Court explained, constituted just such a minor modification squarely within the discretion of the federation and not the more comprehensive alteration of the fundamental legislative concept of the Act that would require compliance with Article 72 (2). Unanimous on these federalism matters, the Court was also unanimous in concluding that the Sunday and holiday closing requirement in the 1996 version of the Act did not constitute an unconstitutional infringement of occupational freedom and equality.108 The Court was evenly divided on the same question as regards the Shop Closing Act’s Saturday business hours, permitting those provisions of the law to survive on the strength of Article 15 (3) of the Federal Constitutional Court Act: “If the votes are equal, the Basic Law or other Federal law cannot be declared to have been infringed.”109 The controversy over the authority to liberalize Germany’s shopping hours has, in any event, been resolved in favor of the Länder by one of the reforms of 2006: “Article 74 [(1) [11]], which gives the federation concurrent powers over certain economic activities, no longer includes the right to regulate store closing hours, a power favored strongly by unions and churches (at least as far as Sundays are concerned) but seen by many others as a good example of overregulation, a considerable burden on retail establishments, and an inconvenience to German shoppers. By November 2006 some Länder [(e.g., Berlin)] had already acted to liberalize dramatically store opening hours.”110

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cooperative federalism The formal division of legislative authority established by Articles 71 through 74 (and the former 74a) belies the reality of the high level of integration and collaboration between the federation and Länder in making public policy. As Werner Heun remarked: “Although, at the beginning, the Basic Law only very sporadically provided for the shared completion of tasks, and the case law and literature derived a fundamental prohibition on mixed administration from the nature of federalism, an intensive . . . cooperation between federation and Länder, as well as between separate Länder, very quickly developed after 1949.”111 Indeed, a number of provisions of the Basic Law anticipate a kind of federal-state cooperation that is in confl ict with a strict “dual sovereignty” theory of federalism.112 For example, Article 75, which was eliminated by the 2006 federalism reform, provided for federal framework laws that were meant to be fi lled out by more detailed state legislation. The 1969 amendments to the Basic Law, including Articles 91a, 91b, and 104a, also opened spheres of shared federal and Land competences. All of these provisions of the Basic Law were altered in one degree or another by the 2006 federalism reform. Arthur Gunlicks has argued that cooperation better characterizes German federalism than a dualist “ideal” of federalism. The theory of “cooperative federalism,” Gunlicks explained, was fi rst used to describe the “reality of shared [state and federal] fi nancing and administrative responsibilities that emerged during and after the New Deal [during American President Franklin Roosevelt’s administration],”113 especially in response to the growth of the modern welfare state.114 “[B]y the 1970s,” on the heels of American President Lyndon Johnson’s Great Society program, “there were few [American] government programs that did not involve the federal government in some combination with the states and/or local governments.”115 The German era of cooperative federalism, fueled by “underlying and powerful tendencies towards unitarianism and centralization,”116 has resulted in such a thoroughgoing entanglement of the Länder and the federation in matters of policy making, fi nancial affairs, and administration that some constitutional law scholars question whether today’s Germany is really still a federal state at all. Framework Laws. Prior to the 2006 federalism reform, Article 75 of the Basic Law authorized the federal government to enact general, or “framework,” statutes (Rahmengesetze) regarding matters traditionally within the states’ domain but of a nature requiring federal participation in the interest of more uniform national policy. The relevant areas of policy included regional planning and water management, the legal status of the press, and the fi lm industry. Following constitutional amendments adopted in 1969 and 1971, the cooperative responsibility of the federation and Länder via framework legislation was extended to include the legal status of persons in the public ser vice of the Länder and general principles governing higher education. State legislation continued to dominate these fields but within preestablished federal

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guidelines. As with the federation’s concurrent legislative authority under Article 74, these federal framework guidelines had to be “essential” for the achievement of the goals identified by Article 72. The Constitutional Court interpreted the framework legislative competence as having a narrow scope. In the State Water Fees Case (1995) the Court refused to presume a federal prohibition on state fees for the withdrawal of groundwater where the relevant federal framework law was silent on the matter.117 The Court reiterated its prior case law in which it established that framework laws should not be construed to limit the legislative authority of the Länder any further than the language of the framework law makes absolutely necessary. Even the extent to which the language of the federation’s framework legislation controlled the details of a regulated matter proved to be a difficult issue requiring careful judicial consideration. In the North Rhine–Westphalia Salaries Case (1954)118 the Court concluded that “Land legislation must fit into the federal framework but must be left free to take account of the par ticu lar conditions of the state concerned; that the federal framework provisions need not be restricted to fundamental principles yet must not exceed their declared purpose of forming a boundary for discretionary regulation by the Länder nor confi ne the latter to a choice between predetermined legal alternatives.”119 If, however, the matter regulated is one in which there was a strong and legitimate interest in national uniformity, then federal legislation could provide the details with respect to that matter, assuming, of course, that the matter falls within the federation’s framework authority.120 In the Junior Professor Case the Second Senate ruled, in a 5–3 decision, that the Fift h Act for the Amendment of the Higher Education Framework Law was incompatible with the framework legislative competence provisions of Article 75 (1) [1a] and the requirement of Article 72 (2) that the legislation be “essential.” Once again engaging the highly sensitive federalism issue of education policy, the Court extended the “states’ rights” jurisprudence of the Geriatric Nursing Act Case (2002; no. 3.10) to its interpretation of the federation’s framework legislative competence. In so doing, it seems likely that it precipitated the demise of framework legislation in the 2006 federalism reform.121 3.11 Junior Professor Case (2004) 111 BVerfGE 226 [The 2002 law sought a comprehensive reform of the qualifications and payment of academics and researchers. In pushing for the reform, the newly elected spd-Green coalition government argued that Germany’s once-vaunted postsecondary institutions were losing ground in an increasingly globalized market for academics. The creation of the rank of junior professor as an introductory academic position was intended to shorten the length of time needed for entry into the academy, and this was to be coupled with a new, more flexible and competitive compensation scheme across all academic positions. The three Länder

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governed at the time by the cdu or csu brought an abstract judicial review action to challenge the federal legislation as an intrusion on the states’ competence over education policy. The Court agreed.]

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Judgment of the Second Senate. . . . B. . . . The Fift h Act for the Amendment of the Higher Education Framework Law and other Regulations, enacted on 16 February 2002, is incompatible with Article 70, and Article 75 in connection with Article 72 (2), and is therefore void. II. 2. The essential (as emphasized by the Parliament) element of the challenged law concerning the qualification and installment of professors, exceeded the acceptable framework for federal legislative authority over higher education. In terms of their nature and scope, the provisions on the junior professorship form the essential element of the legislative project. They contain detailed rules that leave the legislatures of the Länder scope only for secondary enactments. The Länder are required to adopt a staff structure that—with some minor exceptions—precludes any alternatives. The Parliament fails to appreciate that the competence to enact framework legislation does not allow it the same political scope of action as the other legislative competences. a. In the view of the federal government, the provisions in the Fift h Act for the Amendment of the Higher Education Framework Law leave the Länder sufficient scope to build on the federal legislative framework. Th is also applies to the central conceptual and normative element of the higher education reform since the Länder are given the scope to defi ne the actual conditions of employment for academic university staff and to organize the employment relations governed by civil ser vice law in more detail. As the Federal Government rightly pointed out in the judicial proceedings on the constitutionality of the statute, it is essentially left up to the Länder themselves to decide on the introduction of internal appointments, the rules governing advertising for vacancies, teaching loads, the funding and material resourcing of the junior professorship, and its relationship to the tenured professorship. But that sphere of regulation is marginal and of no consequence in light of the high degree of regulation in §§ 44 to 48 of the Higher Education Framework Law. The provisions concerning the junior professorship form an exhaustive set of operational rules covering all the essential elements; they predetermine the central concept of the junior professorship and, at most, allow the Land parliaments scope for minor additions, but no scope of substantial significance for enactments of their own. The Parliament has failed to show regard for the fact that it was the intention of the framers of the constitution and the constitutional amendment that the Länder should retain substantial legislative scope in respect of higher education. . . . b. The institution of the junior professorship is prescribed, according to the legislative concept of the Fift h Amendment Act, not as an offer of one of several possible paths to qualification, but as an obligatory standard qualification. The Länder are, thus,

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not allowed to organize this central area of higher education independently. The Länder are forced down the mandatory path of the new means of access to the professorship. Since so little room remains at the very heart of the reform project—the introduction of the junior professorship—for decisions under Land law, it is no longer possible to assume that this is an enactment of provisions on the general principles respecting higher education within the meaning of Article 75 (1) [1] {1a} of the Basic Law. . . . 4. Moreover, the provisions on the junior professorship are not justified by a necessity for uniform federal legislation, as required by Article 72 (2) of the Basic Law. a. The federation’s legislative aim, which is to shorten the path to qualification for the rising generation of academics and to promote their independence, proves neither the necessity of the provisions for the establishment of equivalent living conditions nor their necessity for the maintenance of legal unity. A federal statute is necessary within the meaning of Article 72 (2) of the Basic Law if a critical situation arises precisely as a result of differing laws in the Länder. That would be the case, for example, if living conditions were to follow unacceptably divergent trends as between the Länder or if a change of job from one Land to another were made significantly more difficult or even virtually impossible. Such critical situations are neither pleaded by the federation nor evident. The provisions in question also are not necessary for the maintenance of legal unity. No fragmentation in the law of higher education and higher education ser vice regulations had been complained of at the time of the adoption of the Fift h Amendment Act; the personal mobility of academics at German universities is moreover guaranteed. b. The change in the staff structure mandated by the Fift h Amendment Act could at best be justified under the objective of maintaining economic unity. But from this point of view, the prerequisites for federal legislative competence also are absent. . . . In any event the Parliament has not furnished any persuasive arguments that, as a result of divergent provisions on access in the individual Länder, an unsatisfactory state of affairs can be expected to arise that federal legislation alone can address. The fact that the junior professorship model of reform may not prevail as superior in a competition with other conditions of eligibility does not establish the necessity of such an enactment.

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The Sixth Act for the Amendment of the Higher Education Framework Law (2002) met a similar fate. Again invoking its framework legislative authority under Article 75 (1) [1] {1a}, the federation enacted legislation that sought to mandate Germany’s tradition of tuition-free higher education in the face of attempts by a handful of conservative state governments to experiment with tuition in their state-run universities. The legislation would have guaranteed that studies leading to a fi rst degree, and that consecutive studies leading to a second degree, remain tuition-free. In the Tuition Case (2005)122 the Second Senate ruled that the law confl icted with the constitution, demonstrating that the practice of providing free higher education to all was in need of reform amidst growing anxiety that German universities have gone far adrift of

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the international preeminence they once enjoyed. The Court found that the federal tuition regulation was within the federation’s competence to broadly regulate general principles concerning the nature of higher education, even while noting that “in the field of higher education the federation is obliged to observe exceptional restraint in the exercise of its legislative authority.” But the Court concluded that the legislation was not essential for either the “establishment of equivalent living conditions” or for the “maintenance of legal or economic unity” (Article 72 (2)). The federation’s justifications for the legislation failed to satisfy the standards set by the Court in the Geriatric Nursing Act Case (2002; no. 3.10). The Court dismissed as unfounded or inadequately supported the federation’s arguments that enrollments would decline and students would flood no-tuition or low-tuition universities if tuition schemes were instituted by the Länder. Costs, the Court noted, are only one of a complex mix of interests and values that inform a student’s selection of a university. The Court went so far as to suggest that students might prefer the improved quality in programming and ser vices a university could provide as a result of securing additional funding from tuition schemes. On the one hand, conservative-led governments in Bavaria, Hamburg, Hesse, and Lower Saxony have taken the lead in instituting tuition schemes at their universities, none amounting to more than € 500 per semester. On the other hand, politicians on the left, loudly bolstered by student groups, have decried tuition fees as contrary to Germany’s commitment to social justice. With the elimination of Article 75 in the 2006 federalism reform, at least one subject previously covered by the federation’s framework legislative competence was added to the federation’s exclusive legislative competence under Article 73 (protection of German cultural artifacts). Other subjects previously covered by Article 75 were reassigned to the concurrent legislative competence under Article 74. Joint Tasks. Articles 91a and 91b—1969 amendments to the Basic Law—defi ne areas of public policy making and fi nancing for which the federation and states shall be jointly responsible. Article 91a authorized the federation to help the Länder carry out certain duties in the fields of higher education, regional economic planning, and coastal preservation. Article 91b, adopted with the intention of providing a response to West Germany’s education crisis,123 permitted joint cooperation, “pursuant to agreements,” in educational planning, the promotion of research institutions, and projects of supraregional importance. Criticism of and official proposals to abolish the provisions have dogged Articles 91a and 91b but the Court has had little to say about the scope of these joint tasks (Gemeinschaftsaufgaben).124 The federation participates in these tasks, provided the Bundesrat consents, and as long as the community as a whole is implicated and the federal role is “necessary to improve living conditions.” Werner Heun concluded that these prerequisites are so “vague and undefi ned that review by the Federal Constitutional Court is feasible only in a limited sphere and, thus, judicial review hardly represents an effective limitation.”125 Still, the joint task provisions have received some scrutiny from the Court. In Geriatric Nursing the Second Senate distinguished the strict stan-

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dard for “essential” federal legislation under Article 72 (2) from the “necessity” requirement of Article 91a. Article 72 (2) is not satisfied, the Court explained, merely because the federation can argue that the challenged concurrent legislation might lead to improvements in the equivalence of living conditions or the maintenance of legal or economic unity across the country. Th is milder form of necessity, however, is all that is required by Article 91a (1). According to the Court, had the framers of Article 72 (2) wanted the “essential” requirement to be satisfied by merely any kind of improvement in the equality of living conditions or maintenance of legal or economic unity, they would have employed the language of Article 91a (1). Besides providing a sphere of federal-state cooperation, Articles 91a and 91b also sought to resolve rising concern about federal intrusion upon Land independence that had been fueled by increasing federal subsidization of state-based governance by means of federal grants. In this cause, Article 104a, which was added to the Basic Law as part of the 1969 reform, worked with Articles 91a and 91b to “put an end to the uncontrolled growth of federal grants”126 by clearly enumerating those circumstances in which the federation can assert direct fi nancial influence over Land policy. The 2006 federalism reform removed the references to joint federal-state tasks in higher education that had been found in Articles 91a and 91b. Article 104a was amended with a new § 4 to require Bundesrat approval of “federal laws that involve Land administration as well as Land funds.”127 The previous Article 104a (4) was recast as a new Article 104b, which aims to resolve the criticism that the federation’s grants-in-aid served as a Trojan horse through which the federation extended its influence in matters reserved to the Länder. Th is criticism is easily recognizable by those familiar with concerns over expansive and intrusive congressional exercise of federal tax and spending authority in the U.S. constitutional scheme.128 Article 104b confi nes the German federation’s influence by “limiting the reach of federal grantsin-aid [by] placing time limits on the grants and requiring periodic reviews, and in requiring that the aid granted be reduced in stages over time.”129

implementation of federal law German federalism balances the federation’s legislative priority with the states’ right “to execute federal law as matters of their own concern” (i.e., in their own right) unless the Basic Law specifies otherwise (Article 83). Land governments, as was noted earlier in this chapter, delegate the implementation of most laws (federal and Land) to still lower levels of administration.130 Thus, Land and local governments predominate in the field of public administration because they establish and operate nearly all of the country’s administrative agencies. As a consequence, the Länder are primarily responsible for putting into force most rules and regulations pertaining to the training and employment of civil servants. Incongruously, federal law controls the general legal status of civil servants, including their classification, educational qualifications, and salaries.131 Demonstrating the breadth of the 2006 federalism reform,

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this long-criticized dissonance in administrative law and policy also was corrected. Article 74a was deleted in the 2006 federalism reform and the provisions of the Basic Law addressing the status and duties of civil servants (Beamten) of the Länder, local governments, and other public corporations were transferred to Article 74, which provides for the federation’s concurrent legislative competence. Salaries and benefits for public employees in the Länder and local governments, however, are now the responsibility of the Länder. Th is was not the only change in Germany’s administrative federalism wrought by the 2006 federalism reform. One of the chief aims of the reform was to have the Länder surrender some of the lawmaking competence they had acquired through the expanded veto authority of the Bundesrat. In light of their responsibility for administering law, this could be expected to have the ancillary effect of exposing the Länder to administrative obligations for which they had little or no legislative responsibility. A way out of this difficulty had to be found in addition to the compromises that made possible the centralizing reform of the vertical division of legislative authority (Articles 70 to 74). The solution was to amend Article 84, which maintains the states’ priority in establishing administrative agencies and procedures. But the new Article 84 goes further, providing the right of a Land government to enact “deviating legislation” if federal law touches upon the administration of the law. Article 84 protects the states’ interest in administration against the federation’s stubborn insistence upon a federal regime by requiring Bundesrat approval of a law providing for the federal regulation of procedures.132 These changes were intended to bring coherence and accountability to federalstate relations in administrative matters. But the federation and the Länder do not participate in this administrative symbiosis in every instance. While limited in number, exclusive federal administrative structures exist in those areas of the federation’s exclusive legislative competence (Article 73) and in matters in which the Basic Law expressly provides for direct federal administration. Under constitutional amendments adopted in 1993, these matters include foreign affairs, federal financial administration, waterways and shipping, and the armed ser vices (Article 86). In addition, autonomous and self-governing federal agencies administer certain insurance programs (e.g., health plans, accident insurance, and pension funds). Under Article 87 (2), these programs are administered as federal corporate bodies if their “sphere of competence extends beyond the territory of one Land.” Federal-state confl icts occasionally arise under this and related provisions of the Basic Law when these federal agencies receive mandates under federal law that are alleged to interfere with the day-to-day operations of analogous Land agencies.133 The prevailing view among constitutional commentators, cited approvingly in the Chimney Sweep II Case (1983), is that the spheres of federal and Land administration are to remain organizationally separate and independent.134 The federation’s exclusive administrative competence aside, federal-state relations in the administration of the law is complex. The federal government, for example, is authorized to supervise the administration of federal law and, with the Bundesrat’s consent, even to issue directives to Land agencies. Kalkar II is a landmark case in-

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volving a clash between federal and Land administrative orders; the case draws attention to the Basic Law’s distinction between two forms of Land administration. Under Article 84 the Länder are empowered to implement federal laws as a matter of their own concern, in accord with their own procedures, and through their own agencies unless otherwise provided by law and requiring the Bundesrat’s consent. Here the line between federal legislation and Land administration is clear. Article 85, however, provides for a unique administrative mechanism referred to as “Länder administration by federal commission,” pursuant to which the Länder are empowered to administer federal law as agents of the federal government. They act as the federation’s agents when, with respect to a given subject matter, the Basic Law so declares or when the regulated matter is subject to more immediate federal control. In this situation, Article 85 (3) authorizes the highest federal official in charge of the regulated matter to issue directives to the highest corresponding Land official. Kalkar II dealt with the extent of the federation’s authority under Article 85 (3). The Court resolved the dispute in favor of the federal minister but admonished the federation to observe the principle of comity in laying down procedures to be carried out at the local level. 3.12 Kalkar II Case (1990) 81 BVerfGE 310 [Pursuant to the federation’s concurrent authority over the production of nuclear energy the Parliament enacted the Federal Nuclear Energy Act, which, among other things, regulates licensing procedures for the construction of fastbreeder reactors. (Article 87c declares that nuclear energy laws may be administered by the Länder for the federation with the Bundesrat’s consent.) Such a reactor had been under construction in Kalkar since the early 1970s. (A related decision, the Kalkar I Case [1978; no. 4.6], involved an earlier controversy arising from the decision to build the reactor.) Prompted by the nuclear disaster at the Soviet Union’s fast-breeder reactor in Chernobyl in 1986, North Rhine– Westphalia’s minister in charge of technology ordered a reassessment of the plans for the reactor’s safety system before permitting the installation of the reactor core. The federal minister in charge of environmental matters issued a contrary directive based on an earlier report that all safety measures had been met. The Land government, appealing to the Federal Constitutional Court, charged that the federal directive was beyond the competence of the national government. The Court disagreed.]

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Judgment of the Second Senate. . . . C. The application is unfounded. The federal directive is legally valid under Article 85 (3) of the Basic Law. It relates to the licensing procedure under § 7 of the Nuclear Energy Act . . . and implicates the

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authority of the Länder to execute federal laws as agents of the federation. As a procedural order, the federal directive is permissible under Article 85. 3. . . . Objectively . . . the federal order complies with the conditions of and restrictions on federal competence under Article 85 (3). The order did not violate the principle of comity. I. Article 83 empowers the Länder to enforce federal laws unless otherwise specified in the Basic Law. In principle, the Länder administer federal laws as matters of their own concern (Articles 83 and 84). The Länder are also empowered to act as “agents of the federation” in certain designated matters (Article 85 (1)). 1. The administrative agency in question here is a form of Land administration. The Länder exercise their own authority as such, and their administrative agencies act as their organs, and not as organs of the federation. Th is view is supported by the language of Article 85 (1), as well as the distribution of powers in Part VIII of the Basic Law, which distinguishes two forms of Land administration; namely, when the Länder execute federal laws in their own right and when they serve as agents of the federation, [i.e., when they derive their authority] from the federation’s administrative power (Article 86). The debates in the Parliamentary Council also proceeded on the assumption that Land and federal governments would serve as equals in administrative matters and that Land and federal agencies would be kept separate. Admittedly, the autonomy of the Länder in administrative matters is substantially restricted. Where the Länder execute federal laws in their own right the federal government exercises a supervisory power to ensure legal conformity with federal law and has the right to issue individual instructions in particular cases where it is permitted by federal statute (Article 84 (5)). The federal government has broad powers to intervene in the functioning of administrative agencies. Its supervisory power extends to ensuring the lawfulness and appropriateness of administration, for which purpose the federal government may require the Länder to submit documents for inspection and dispatch representatives to the Land administrative agency. Most important, the directives of a Land agency are subordinate to those of the federal authority; accordingly, the latter must be executed by the highest Land authority . . . (Article 85 (3)). It follows that the administrative competence of the Länder is limited by the original distribution of competences to each level of government. The Länder retain exclusive authority in the administration of their functions as against third parties; Article 85 of the Basic Law does not contemplate a federal right to interfere with this power. But this is not the case with respect to substantive decision making. Although this power resides primarily in the Länder, the federal government can vest this power in itself by exercising its power to issue orders. Th is exercise is not limited to exceptional cases and does not require justification. Article 85 (3) of the Basic Law contemplates this as a normal means of settling differences, such that the federal vision of the common good may prevail. The power of the Länder to make substantive decisions is limited only by the reservation of rights at the federal level. The legislative history of Article 85 (3) supports this view. According to the reporting committee of the Parliamentary Council, Land administrative agencies were

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to be subordinate to the will of the highest responsible federal agency. . . . Accordingly, a federal directive to a Land agency discharging functions within its competence is invalid only when the directive . . . is unconstitutionally issued. . . . II. . . . 2. Article 85 (3) of the Basic Law places additional legal restrictions on the federal power to issue directives. These restrictions relate to the nature of the directives and the substantive decision-making authority on which they are based. The order must precisely defi ne the respective spheres of federal and state competence. The subordinate agency must be able to recognize that it is the recipient of an order, and that certain standards will apply to certain administrative processes. The order must be drafted such that the recipient is able to make objective sense of it, using all the potential sources of technical and legal knowledge available in a fully equipped Land agency. In this context, previous communication with the superior federal authority may be of significance. The requirement of precision does not prohibit the use of concepts whose realization requires a judgment call. Th is is not contrary to a directional order. 3. When issuing orders, the federal government is bound by the principle of comity. Certain conditions and restrictions for the execution of competences can be derived from this. In the German federal state the entire constitutional relationship between the federation and its member states is guided by the unwritten constitutional principle of comity; that is, the federal government and the Länder must act in a manner that promotes the interests of the federation as a whole. Th is duty requires that, in exercising their functions, the federation and the Länder reasonably consider the overall interests of the federation and the concerns of the Länder. The federal government does not violate its duty solely by executing a constitutionally assigned competence. Rather, it can be deduced from the principle that the exercise must be abusive or in violation of procedural requirements. The further conclusions that can be drawn from this principle can be determined only in individual cases. . . . III. 1. According to this interpretation of Article 85 (3) of the Basic Law, the petitioning Land cannot proceed with its submission that the federal directive was incompatible with § 7 (2) or with the licensing procedures of the Nuclear Energy Act; or that it incorrectly assessed the effect of linking individual permits; or that it misconstrued the content of the prior positive assessments of the whole project. The Land cannot argue that the order restricts its execution of the constitutional duty to protect the life and health of its citizens under Article 2 (2) of the Basic Law. The execution and fulfi llment of this duty lie solely with the federal government, insofar as it issues an order within its competence. . . . 2. The order complies with the constitutional conditions and restrictions placed on the competence to issue orders under Article 85 (3). The content is procedural, as it draws the Land minister’s attention to legal opinions about the protection of property for which permits were already issued and about the collective effect of prior positive assessments. Taking the events at Chernobyl into consideration, the order annuls the previous standards of evaluation and the previous plans for the safety sys-

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tem of the reactor by raising the possibility of another expert report, thereby deviating from the position of the Reactor Safety Committee on 15 April 1987. 3. a. Contrary to the perspective of the petitioning Land, the fulfi llment of Land duties in the area of disaster prevention is not affected by this order. The order does not forbid the Land to commission a report addressing the issue of disaster prevention (e.g., emergency shelters). b. Further, the order satisfies the requirement of precision. . . . 4. In issuing this order, the federal government has also fulfi lled the principle of comity. The Constitutional Court must assess not only the order, but the actions that preceded it. It is not a question whether the federal government did everything required by the principle of comity to avoid any misunderstanding on the part of the Land after issuing the order, or whether the Land for its part did everything reasonably required to understand the content of the order.

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Extending Kalkar II. In the Biblis-A Case (2002),135 another decision involving a clash over state and federal administration of nuclear energy policy, the Second Senate again acknowledged the federation’s administrative will in cases where Land administration is authorized by the federation (Article 85). In Kalkar II the Court held that “[t]he Länder retain exclusive authority in the administration of their functions as against third parties. . . .”136 In Biblis-A the Court narrowed the scope of this statebased administrative competence. Following decades of controversy, including Hesse’s persistent refusal to administratively certify the safety of the nuclear power plant known as Biblis-A, a change of government in Hesse in 1999 (from a center-left coalition to a center-right coalition) broke the logjam. The new Land government’s efforts coincided, however, with increased concern for nuclear safety on the federal level, which also reflected a change in government from a center-right coalition to a center-left coalition. The Federal Ministry of the Environment complained about numerous deficits in the draft permits prepared by the state and ordered Hesse to grant permits certifying the adequacy of safety modifications to Biblis-A only after federal supervisory approval. Meanwhile, as part of the new federal government’s broader efforts to shape energy policy, representatives of the federal government and the energy supply industry (including the operator of the Biblis-A plant) signed the so-called atomic consensus. Its appendices contained agreed-upon conditions for the operation of Biblis-A, including the following passage: “Before the end of August 2000, the federal ministry will determine measures about the acceleration of the permit procedure vis-à-vis the Hesse board of control; this will include a structuring of the process and a defi nition of the standards of evaluation.” The Hesse government, the apparent administrative authority concerned with the plant, at least with respect to policy-making implicating third parties like the operator of Biblis-A, was not a party to the atomic consensus agreement and did not attend subsequent meetings between the plant’s operator and the Federal Ministry of the Environment at which the terms of operational certifica-

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tion for Biblis-A were concluded. Hesse challenged the federal government’s actions as an encroachment on its administrative sovereignty and brought the matter to the Constitutional Court. The Constitutional Court dismissed Hesse’s petition on its merits. Speaking fi rst to the question of state administrative competence, the Court reconfi rmed that, within the scope of Länder administration by federal commission (Article 85), Land governments possess the inalienable and exclusive right to execute all administrative measures with external effects. But, having held in Kalkar II that the power to make substantive administrative policy can be claimed by the federal government at any time, the Court concluded that once the federal government has expressly or implicitly exercised this authority, it may have direct external dealings with third parties in order to prepare for the exercise of this power. Such external dealings, the Court explained, may also include “informal” negotiations and agreements of the kind associated with the “atomic consensus.” The Court explained that the administrative sovereignty of the Land would be violated in such circumstances only if the federal government were to engage in legally binding activities vis-à-vis third parties or issue statements that approximate a legally binding decision. Th is was not the case with respect to the federal government’s dealings with the operator of Biblis-A. Second, the Court addressed the question of comity, especially in respect to the federal government’s exclusion of Hesse from the atomic consensus negotiations. The Court ruled that Hesse’s administrative competence in the case was limited to the nuclear power plant, which the Court viewed as wholly distinct from the federal government’s pursuit of its broader energy policy by way of the atomic consensus. The Court found that comity had not been jeopardized by the federal government’s failure to notify and actively pursue Hesse’s participation in the formation of that policy, even as that effort incidentally affected the Biblis-A plant. The Court concluded that, in any event, the state’s interests in its administrative competences were adequately protected. Hesse had been notified of the federal government’s engagement with the matter through the federal exercise of its power to direct substantive administrative policy and through media coverage of the federal government’s efforts regarding energy policy. The Land also enjoys the effective procedural protections elaborated in Kalkar II, which must be observed before the federal government can issue an administrative instruction under Article 85 of the Basic Law. There is no protected Land interest, however, if the federal government activities involve only the informal measures that inform the federal government’s preparation of an administrative instruction, especially where the informal activity of the federal government is as far removed from the concrete administrative procedure as it was in this case. Justices Di Fabio and Mellinghoff dissented, arguing that the federal government’s interactions with the external operator of the Biblis-A plant, with their real, if ostensibly informal and incidental effects, interfered with Hesse’s administrative competence in violation of Articles 30 and 85 of the Basic Law. At the very least, the dissenting justices argued, the federal government should have been found to have

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violated the principle of federal comity by failing to inform Hesse about its plans in an appropriate and timely manner and thus denying the Land an opportunity to be heard. These cases suggest that nuclear energy was a contentious issue in Germany. In fact, as one of the most divisive social and political questions for several generations, nuclear energy reached the Court in a number of constitutional guises.137 For example, nuclear energy also was the backdrop to the seminal Brokdorf Demonstration Case (1985), which we discuss at length in Chapter 8.138 The wrangling over the Kalkar nuclear energy plant eventually led authorities to shutter the project before the core reactor was inserted. After nearly dm 7 billion in investment, Kalkar never generated a single watt of energy. The Biblis-A facility also has been switched off. As a result of the global anxiety over nuclear power that was stirred by the 2011 tsunami disaster in Fukushima, Japan, the conservative-liberal government of Chancellor Angela Merkel ordered a temporary halt to the production of nuclear energy in Germany. Ostensibly, this was to permit safety inspections of the entire network of nuclear plants. But the Biblis-A plant was never restarted. On 30 May 2011 the federal government announced plans to abandon all nuclear energy production in Germany by 2022, seemingly closing this tumultuous chapter in German political and constitutional life.

conclusion The issues and materials discussed in this chapter underscore the fluidity in the constitutional politics of German federalism. The Basic Law’s complex system of federalstate relations, including its detailed provisions on the administration of federal law by the Länder and the apportionment of tax revenue between levels of government, also reveals the extent to which government process is subject to constitutional constraints. At the same time, the 2006 federalism reform demonstrates the degree to which political pressure influences constitutional decision making. The next chapter details how a similar, if more stable, framework of legality engirds the principle of separated powers. The cases featured in this chapter provided the Court with opportunities to perpetuate its vision of the political order created by the Basic Law. Although fi rmly upholding the principle of federal supremacy in those areas of public policy expressly committed to the federal government, this vision also includes a critical and autonomous role for the individual Länder. For one thing, the Court has tended to construe strictly the long list of concurrent powers granted to the federation under Article 74, probably because a broad construction of these powers would virtually eliminate the Länder as effective units of the federal system. For another, the Court has invoked the principle of comity to impose a variety of obligations on both federal and Land governments in their relations with each other. With the Finance Equalization III and the Geriatric Nursing Act cases, the Court signaled its sympathy for a more de-

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fi ned role for the Länder in Germany’s governance, a position seemingly in line with the political will in the country at the beginning of the new millennium, at least as reflected in the changes produced by the 2006 federalism reform. Finally, in all these decisions the Federal Constitutional Court showed no modesty in intervening to judicially arbitrate the Basic Law’s scheme of federal-state relations.

4 Separation of Powers ∂ The principle of separation of powers fi nds its clearest expression in Article 20 (2) of the Basic Law (Grundgesetz), which declares that “all state authority (Staatsgewalt) . . . shall be exercised . . . by specific legislative, executive, and judicial organs.”1 The Federal Constitutional Court (Bundesverfassungsgericht), however, recognizes that this principle cannot be realized in pure form. Separation of powers is, rather, a “system of reciprocal controls” marked by numerous checks and balances.2 German constitution makers believed that they could secure liberty and avoid oppressive government by setting up a system of shared powers similar to constitutional arrangements in the United States. In their view, political power was implicitly dispersed by the Basic Law’s version of the constitutional state principle (Rechtsstaat).3 Separation of powers in the Federal Republic is unlike the division of authority among the branches of the U.S. government. For one thing, the German variant of separated powers is linked with issues of federalism, a linkage born of the federation’s preeminence in the field of legislation and the federal states’ (Länder’s) preeminence in the field of public administration. As a result, executive-legislative conflicts often resolve themselves into disputes between federal lawmakers and Land bureaucracies. Federal-Land conflicts, therefore, also implicate the principle of separation of powers. At the federal level, the Basic Law disperses authority within and among several institutions, or branches of government, that are distinctive to Germany’s parliamentary system. Executive authority is divided between the federal president (Bundespräsident) and the federal government (Bundesregierung), the latter consisting of the federal chancellor (Bundeskanzler) and his or her cabinet. The Basic Law vests legislative authority in the Parliament (Bundestag), authority sometimes exercised in cooperation with the Federal Council of States (Bundesrat). At the same time, the Basic Law confers independent rights on certain federal institutions.4 These five institutions—federal government (chancellor and cabinet), president, Bundestag, Bundesrat, and Federal Constitutional Court—are the Federal Republic’s highest constitutional organs. The Constitutional Court is primus inter pares among these federal organs because it has the authority to defi ne the others’ institutional rights and duties when resolving confl icts between them. Such disputes arrive at the Court in the form of Organstreit proceedings,5 the German equivalent of a confl ict based on separation of powers in the United States. Yet when German constitutional scholars speak and write about separation of powers, they have more in mind than the technical formalities of an Organstreit proceeding. They often see separation of powers in terms of a creative tension between the Parliament and the federal government, a view anchored in the Basic Law itself.

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Parliament elects the chancellor (Article 63), but the chancellor is responsible for setting the “general policy guidelines” of the federal government (Article 65). In addition, the constructive vote of no confidence (Article 67) reinforces the chancellor’s independence as a political leader. Indeed, Konrad Adenauer’s strong leadership during the Federal Republic’s fi rst decade led many commentators to describe the new German polity as a “chancellor democracy.”6 Ideally, under this system, a legislature made up of “representatives of the whole people, not bound by orders and instructions” (Article 38) constitutes the check necessary to control and discipline the chancellor. The unamendable principle of separated powers (Gewaltenteilung) combines with the equally entrenched principles of popular sovereignty (Volkssouveränität) and executive responsibility (Verantwortlichkeit der Regierung) to produce an accountable government marked by democratic legitimacy. But, as one commentator noted, “in practice this required separation of power between the government and Parliament no longer exists in the face of the [development] of [Germany’s] party democracy.”7 The increasing importance of political parties in the creation and election of a par ticu lar government or governing coalition has prompted constitutional theorists to highlight the importance of the opposition in Parliament rather than the opposition of Parliament as the most effective check on the “executive branch.”8 Perhaps this is why the Federal Constitutional Court ranks the principles of multiparty democracy (Mehrparteienprinzip), equality of parties (Chancengleichheit der Parteien), and the right of opposition (Recht auf Opposition) as equal to those of popu lar government, executive responsibility, and separation of powers.

executive-legislative relations The Basic Structure of Separated Powers. As in other parliamentary systems, the Bundestag chooses the head of the government (Article 63), who in turn is responsible to the legislature. Federal ministers, however, owe their primary allegiance to the chancellor. He or she effectively appoints—and dismisses—them (Article 64) and establishes the general policies within which they are constitutionally obligated to manage their respective portfolios. Within these limits cabinet officials conduct their departmental affairs “autonomously and on [their] own responsibility” (Article 65). The cabinet as a whole resolves policy disagreements between federal ministers (Article 65). The Basic Law, fi nally, does not insist on separating legislative and executive personnel. Constitutional practice in Germany allows the chancellor and members of his or her cabinet, not to mention administrative officials of lesser rank, to hold seats in Parliament. By the same token, certain members of parliament, in their capacity as parliamentary state secretaries, serve as officials within the federal ministries.9 Lawmaking. The large majority of legislative proposals in Germany are bills proposed by the federal government. The government must submit such bills to the

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Bundesrat before transmitting them to the Bundestag. In the less frequent event that a bill originates in the Bundesrat, it later arrives before the Bundestag by way of the federal government, whose views fi rst must be solicited. Legislation is therefore generally the product of a broad consensus reached by these three institutions.10 Constitutional confl icts among these institutions, as exemplified by the Bundesrat Case (1975; no. 3.6), seldom arise. After the Bundestag passes legislation, either the chancellor or the appropriate federal minister must countersign it (Article 82). A president could, according to some authorities, refuse to promulgate a statute he or she regards as unconstitutional, but such an action could trigger impeachment proceedings against the president. The validity of those proceedings would, in turn, have to be resolved by the Federal Constitutional Court. More likely, however, the legislative bodies would simply lodge a challenge to the president’s obstinacy with the Court.11 Vote of No Confidence and the Power of Dissolution. The Basic Law’s scheme of separated powers involves a system of checks and balances rare among parliamentary democracies and considerably at variance with the volatility permitted by the Weimar Constitution of 1919. In contrast to the Weimar Constitution, the Basic Law makes governmental stability a chief aim of the system’s separation of powers. To that end, the chancellor holds a more secure position in the Federal Republic’s governing system. The Basic Law provides for a vote of confidence in only two situations. First, Parliament may initiate the procedure pursuant to Article 67, but a vote of no confidence is insufficient to drive a chancellor out of office. Parliament may remove the chancellor under this provision only when a majority of its members simultaneously elects a successor, a procedure commonly known as a constructive vote of no confidence. Second, Article 68 allows the chancellor to initiate a vote of confidence and to authorize him or her, if the vote shows a lack of confidence, to request the president to dissolve Parliament and call for new elections. The decision to dissolve is the president’s alone, and he or she may decline the chancellor’s request if it seems that the motion to dissolve Parliament was little more than a political scheme on the part of the majority coalition to shore up its position by holding a new federal election. The constructive vote of no confidence and the inability of the chancellor alone to dissolve Parliament appears to have achieved a good measure of political stability in Germany. Since 1949 the constructive vote of no confidence has succeeded only once, in 1982, when the Bundestag voted Helmut Schmidt out of office after the Free Democratic Party (fdp) withdrew from the coalition government. A new alliance between the fdp and Christian Democrats elected Helmut Kohl to be chancellor by a vote of 256 to 235, the fi rst time that a postwar German government had been replaced without a national election. The chancellor has moved for a vote of confidence under Article 68 on five occasions. Chancellors Helmut Schmidt (on 3 February 1982) and Gerhard Schröder (on 13 November 2001) won their votes of confidence for the purpose of validating certain policies. But on three occasions—Willy Brandt (on 22 September 1972), Helmut Kohl (on 17 December 1982), and Gerhard Schröder

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(on 1 July 2005)—the chancellors deliberately “lost” confidence votes to the set the stage for new federal elections. The “defeat” of Chancellors Brandt, Kohl, and Schröder in these Article 68 confidence votes is qualified by the fact that each, at the time of the vote, commanded a governing majority in the Parliament. The parliamentary vote in each case essentially was an orchestrated expression of the governing majority’s will to trigger new federal elections in the hope that new elections would return them to office with a stronger mandate. To paraphrase one Social Democrat who participated in Gerhard Schröder’s maneuver in 2005, in such situations the parliamentary majority shows its confidence in the chancellor by expressing its lack of confidence. These so-called false no-confidence votes (unechte Vertrauensfragen) have prompted much critical commentary. The critics argue that they tread perilously close to endowing the chancellor with a right to dissolve Parliament at his or her whim, the very thing the clear letter of the Basic Law sought to prohibit in the name of stable parliamentary government. The result, it is argued, involves the politicians in a scheme aimed at “gaming” the constitution.12 Not surprisingly, these rare events have led to Organstreit proceedings before the Federal Constitutional Court, which held, in the Parliamentary Dissolution I Case (1983), that Helmut Kohl’s false no-confidence vote satisfied the formal requirements of Article 68 and, additionally, was justified by Kohl’s rational belief that he was confronted with “a situation of instability” (eine Lage der Instabilität), despite the fact that he was supported by a majority coalition in the Bundestag. (In fact, he recently had been elected to the chancellorship via a constructive vote of no confidence.)13 For these reasons the Court found nothing constitutionally objectionable in the federal president’s decision to dissolve the Parliament and order new elections. In the course of its opinion, the Court made clear that each of the decision makers along the way—chancellor, Bundestag, and president—is duty-bound to consider the Basic Law’s sharp limits on the power of dissolution. Each is required, independently and conscientiously, to decide whether the political divisions in the Bundestag seriously impair the ruling coalition’s capacity to govern. The Court emphasized the political nature of this judgment and underscored the fact that these cases blur the line between constitutional and ordinary politics. The Court explained that it stands ready to render its own judgment on the merits of any proposed parliamentary dissolution, but it reasoned that the president, in par ticu lar, should grant the chancellor a certain political leeway (Spielraum) in determining whether he or she is faced with “a situation of instability” that would justify dissolution and new elections. The Parliamentary Dissolution II Case, featured below, picks up where Dissolution I leaves off.14 Following a string of devastating state and local election defeats for his Social Democrats, most notably in the traditional spd stronghold of North Rhine– Westphalia, Chancellor Schröder orchestrated a failed confidence vote in 2005, even though his governing coalition enjoyed a majority (albeit by a slender thirteen votes). In his remarks to the Bundestag upon moving for the confidence vote, Chancellor Schröder complained that his ability to govern had been handicapped by the coalition’s

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slim majority in the Parliament, by division within his party and the governing coalition, by the opposition’s control of the Bundesrat (where it was successfully blocking much of the government’s legislation), and by intense special interest opposition to and not-insignificant public outrage over the government’s comprehensive reform program known as Agenda 2010. The chancellor contended that drastic measures were required to confront Germany’s economic and demographic crises, as well as the increasing challenges of globalization and the difficulties plaguing the European project. All of this necessitated, the chancellor urged, a strong and competent government empowered with a clear mandate from Germany’s voters. In televised remarks on 21 July 2005, President Horst Köhler accepted Chancellor Schröder’s litany as adequately establishing the existence of “a situation of instability.” “Our future,” the president declared, “and the future of our children stands in the balance.” Two members of the Bundestag disagreed and challenged the president’s dissolution order as an unjustified infringement of their constitutionally protected four-year term in office (Articles 38 (1) and 39 (1) of the Basic Law). The new elections ordered by the president, the parliamentarians argued, would shorten their term in office by a full year. As a matter of separation of powers, the complainants warned, legitimizing the false no-confidence vote maneuver would aggrandize the chancellor’s authority at the expense of the Parliament by providing the chancellor with an opportunity to secure support for his or her policies by threatening parliamentary dissolution. They argued that Article 68 was meant to measure the basis of the government’s power exclusively in the Bundestag, where a slim majority is sufficient to govern effectively. Th is had been repeatedly proven in Schröder’s case, the complainants explained, by his government’s ability to pass controversial legislation through the Bundestag. The complainants further contended that the opposition in the Bundestag, and even the supposed opposition within the governing coalition, should be welcomed for its democratic effect of sharpening policy and broadening the consent needed for the enactment of policy. Finally, they argued that the new Bundestag elections, should the chancellor be returned with a stronger mandate, would do nothing to alter the political deadlock between his government and the Bundesrat. 4.1 Parliamentary Dissolution II Case (2005) 114 BVerfGE 121 [Article 68 allows the president to dissolve the Bundestag if the Parliament fails to support the chancellor in a vote of confidence. Th is is exactly what happened in the vote held on 1 July 2005. Yet, considering the potential for a manipulated no-confidence vote, the Court in the Parliamentary Dissolution I Case (1983) had added a “material condition” to the formal terms of Article 68. A “situation of instability” also must exist. On the one hand, with a 7–1 majority the Court here upheld Chancellor Schröder’s “false” no-confidence vote and the president’s subsequent dissolution order. On the other hand, the majority’s characterization

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of the law governing the question could only muster the support of five justices. Justice Lübbe-Wolff wrote separately to depart from the majority’s reasoning. Justice Jentsch, the lone dissenter from the Court’s holding, also wrote separately.]

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Judgment of the Second Senate. . . . C. . . . The complaints are unfounded. The decree of the federal president from 21 July 2005, which dissolved the 15th German Bundestag and set an election for 18 September 2005, did not violate the Basic Law. The decree did not harm or threaten the complainants’ status as members of the Bundestag, a status protected by Article 38 (1) [2] and Article 39 (1) [1] of the Basic Law. . . . . II. The motion for a vote of confidence directed toward dissolution of the Bundestag is constitutional only when it complies, not only with the formal requirements, but also with the purpose of Article 68 of the Basic Law. In Articles 63, 67, and 68, the Basic Law strives for a government that is able to act. . . . 1. The constitution is aimed at ensuring that there is a government that is anchored in Parliament. The chancellor is elected by the Bundestag. In order to exercise effectively his or her mandate, the chancellor requires the continuous support of a majority in the Bundestag. Relying upon a free mandate, however, each member of parliament is entitled, and has a responsibility, to oversee the government and, within the framework of the competences of the Bundestag, to participate in shaping policy. The task of monitoring the majority falls especially, though by no means exclusively, to the opposition in the Bundestag. . . . First and foremost, in parliamentary debate, the opposition publicly monitors and criticizes the government’s actions and formulates alternatives. The majority from which the chancellor was elected typically will support “its” government and “its” chancellor in these open policy debates. Nevertheless, the parliamentary majority regularly will express criticism of the government’s political course within the parliamentary faction or the party. Thus, the parliamentary decision-making process has two distinct components. First, it consists of the relationship between the government and a parliamentary majority. Second, it benefits from the parliamentary minority’s opposition to the government. To a considerable degree that process is shaped and organized by the parliamentary parties in the Bundestag. . . . Th is does not preclude public criticism from members of parliament who belong to the government’s majority. It also does not preclude the possibility that members of parliament belonging to the government’s majority will act contrary to the will of the government. After all, members of parliament are subject only to their conscience. Still, the chancellor is especially reliant on collaboration—based on trust—with the majority’s leader or leaders so that he or she is assured that the majority in the Parliament is supportive. The leadership of the parliamentary parties will seek to ensure that, out of the parliamentarians’ freedom to be bound only by

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their conscience, an effective consensus emerges. That consensus should be compatible with the federal government’s program. In principle, the chancellor and his or her government require a dependable parliamentary majority. In this context “dependable” means that the chancellor is entitled to expect sufficient parliamentary support, in principle, for his or her political program. Whether the chancellor has that dependable support can be gauged from the outside only to a limited degree. Parliamentary and political working conditions might conceal from the public the real nature of the chancellor’s relationship with parliamentary groups. Doubts about whether the chancellor and his or her government still have a dependable parliamentary majority need not be fully and unambiguously resolved in order for concerns to exist. 2. If the chancellor is no longer able to secure the votes of the majority of the members of parliament, then this position is classified by the Basic Law as a political crisis that triggers special provisions of the Basic Law that assign responsibility for resolving the crisis to other constitutional organs. For example, with the approval of the president, it would be possible to appoint a minority chancellor, and a government can be deemed sufficiently capable of action to permit indispensable measures and laws to be adopted without the involvement of the Bundestag. . . . 3. The dissolution of the Bundestag is an interference with the freedom of a parliamentarian’s mandate that extends, by virtue of the constitution, for four years. Dissolution under Article 68 of the Basic Law is limited by the purpose of that provision. It is sufficient that the chancellor legitimately believes that the federal government’s ability to act in concert with a dependable parliamentary majority is impaired. [The Court considered the historical roots of the Basic Law’s preference for parliamentary stability, including the framers’ consciousness of the political and human rights trauma that resulted from the repeated dissolution of the Reichstag late in the Weimar era. The Basic Law’s framers, the Court summarized, reached the “conclusion that parliamentary elections held in rapid succession in times of economic and political crisis favor radical forces and may undermine general confidence in the adherence to rules of the process of forming the political will in a constitutional state.” To avoid the risks associated with parliamentary upheaval, the Court explained, the Basic Law provides that a situation of instability between the chancellor and the Bundestag can be ended only by the resignation of the chancellor or by a vote of confidence directed toward dissolution.] Accordingly, viewed in the light of the meaning of Article 68 of the Basic Law, it is appropriate for a chancellor to ask for a vote of confidence directed toward dissolution of the parliament if he or she faces policy setbacks and no longer enjoys the support of a majority in the Bundestag. The chancellor’s ability to act also is lost if he or she is forced to avoid setbacks in the Bundestag by moving away from substantial elements of a desired political program and is, instead, required to pursue different policies. The chancellor must act under the control and with the cooperation of the

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Bundestag and, to that extent, try to reach compromises on a daily basis. But the constitution does not view the government as an executive committee of parliament. A prerequisite for effective checks and balances is that the federal government also has a clear sphere of responsibility. The federal government is meant to be an independent policy-making constitutional organ that can be answerable to the Bundestag— and through the Bundestag, to the citizens—only if it has adequate independent scope for political action. . . . 4. The Federal Constitutional Court reviews the appropriate application of Article 68 of the Basic Law only to the limited extent anticipated by the constitution. [The Court noted that its role in reviewing an Article 68 dissolution process is least controversial and most circumscribed when the government’s loss of a dependable parliamentary majority is obvious, that is, when “a majority of the Bundestag behaves in an openly and persistently obstructive manner and clearly declares that it has no confidence in the chancellor, but equally avowedly cannot agree on the election of a new chancellor by the procedure in Article 67 of the Basic Law.” In these circumstances the situation of political instability required for the exercise of Article 68, in the sense of the government’s loss of a dependable parliamentary majority, is incontestable.] . . . Constitutional difficulties in the Court’s review of an Article 68 dissolution process arise when the chancellor concludes—before actually suffering policy setbacks in the Bundestag—that there is no assurance that his or her policies will be supported by a parliamentary majority. It is even more difficult to evaluate the chancellor’s conclusion if the paralyzing political effects of such a situation will only become apparent in the future. Such a “concealed” minority situation arises when, on the one hand, an organized parliamentary majority—the nominal majority required to elect a chancellor—declares its support for the chancellor and publically offers its political support, while, on the other hand, support for the chancellor’s political agenda is not effective enough to ensure the enactment of the central components of those policies. By their very nature, the erosion and the tacit withdrawal of parliamentary confidence are not capable of being presented and ascertained in court proceedings. Political disputes that have not been (legitimately) resolved in the open political process do not have to be disclosed to other constitutional organs, such as the Court. The chancellor’s estimation that he or she no longer is sufficiently able to implement his or her policies in the future is an evaluation that, in practical terms alone, cannot be reviewed unequivocally and completely by the Federal Constitutional Court. Such questions are not amenable to the usual procedural methods of obtaining information, at least not without damaging the political machinery. . . . [Confronted with this political limitation on its review of an exercise of Article 68, the Court adverted to the Basic Law’s assignment of constitutional oversight in this context to three successive constitutional organs—the chancellor, the

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Bundestag, and the federal president—each possessing the power to prevent the dissolution according to their own free political assessment. Th is, the Court concluded, helps to ensure the accuracy of claims that the federal government has lost its power to act in Parliament.] The chain of responsibility begins with the chancellor because, without his or her motion, there is no means of dissolving the Bundestag. The constitution allocates to the chancellor the sole competence to propose such a motion under Article 68 of the Basic Law. The Basic Law recognizes the elevated status of the office of federal chancellor within the system of parliamentary government in the Federal Republic of Germany. The Bundestag then decides whether, by refusing a vote of confidence, it will open the way to dissolution. There is no conceivable situation in which a chancellor could legally force Parliament, against its will, to participate in its own dissolution. Even if the governing coalition had only a narrow majority, the chancellor still could not rely on the opposition to help bring about Parliament’s dissolution. Indeed, the chancellor could not instruct cabinet ministers, who also are members of the Bundestag, to vote in a par tic u lar way on the confidence motion. The parliamentarian’s right to represent constituents without being bound by instructions takes precedence. . . . Finally, as the third constitutional organ, the president orders the dissolution according to a political assessment. In the present case, prior to announcing his decision, the president had carried out his responsibility to undertake an independent legal assessment of the requirements of Article 68 of the Basic Law. Even if, in so doing, the president is confi ned to nothing more than a review for manifest abuse by the chancellor or the Bundestag, the president’s word as a neutral authority still carries weight if the matter eventually is brought to the Court for judicial review. The Basic Law specifically inserts the president as an independent constitutional organ in this procedure. The president is competent to conduct a legal review and is qualified to set a political precedent by deciding to order or reject dissolution. The president has a number of means for conducting this legal review, including personal and confidential conversations that enable him or her to form a picture of whether the government’s ability to act in a manner that accords with the purpose of Article 68 of the Basic Law is endangered or already has been lost. The demanding mechanism of separation of powers applicable to dissolution under Article 68 of the Basic Law can be meaningfully deployed only if the Federal Constitutional Court respects the political assessment of the constitutional organs that acted on the matter before it became seized of the case. . . . . . . Due to the three-stage [political] decision-making process, the Federal Constitutional Court’s scope for review under Article 68 of the Basic Law is less extensive than in the spheres of legislation and statute enforcement. The Basic Law primarily relies on the system of mutual political control and political equilibrium between the supreme constitutional organs concerned, as established in Article 68 of the Basic

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Law. Only where standards for political conduct are laid down in constitutional law can the Federal Constitutional Court confront their infringement. [The Court credited a number of factors establishing the existence of “a situation of instability” in Chancellor Schröder’s case. Relying on Schröder’s speech to the Bundestag in support of the confidence vote, the Court cited his explanation that his Agenda 2010 reform package had created conflicts between Schröder’s Social Democrats and his government’s coalition partner, the Green Party. The Court noted that there were also calls for Schröder’s resignation from within his own party. The Court also brushed aside two of the complainants’ arguments. First, the Court dismissed the fact that leading Social Democrats had commented on the party’s continuing confidence in Schröder, concluding that these remarks referred to Schröder’s character and not his policies. Second, the Court found Schröder’s recent legislative successes to be unimportant because none of the legislation cited implicated the contentious Agenda 2010 policies. Justice Lübbe-Wolff concurred in the result (upholding the president’s dissolution order). But she wrote separately to argue that the presidential and judicial review of Article 68 no-confidence votes was both improper and ineffectual, resulting in a mere “facade of control.” Echoing the concerns of the American political question doctrine, she urged that parliamentary confidence in the chancellor is, by defi nition, a question only the Parliament can resolve. Justice Jentsch also wrote separately, but he dissented from the Court’s holding and reasoning in the case. First, he asserted a formalist critique, arguing that Chancellor Schröder had not actually lost his majority in the Parliament. He then raised concerns about the consequences for governing stability if such false no-confidence votes were accepted because they might establish a de facto right to parliamentary dissolution despite the Basic Law’s clear disapproval of such measures.]

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Impact of the Dissolution Cases. The Parliamentary Dissolution cases were extremely controversial. As former federal president Karl Carstens acknowledged—it was Carstens who dissolved the Parliament following Helmut Kohl’s false no-confidence vote—most German constitutional scholars questioned the constitutionality of the dissolution order.15 Th is view had not changed by the time the Federal Constitutional Court considered Chancellor Schröder’s no-confidence maneuver in 2005. Among the German constitutional law luminaries surveyed by the Frankfurter Allgemeine Zeitung in the weeks prior to Schröder’s no-confidence vote (including a number of former justices of the Constitutional Court) the overwhelming sentiment was against the constitutionality of the procedure.16 Yet, as others have pointed out, these cases are of unusual political delicacy. A decision against the Kohl dissolution order, one commentator wrote, might have “tarnished the credibility of the highest

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governmental organs,” including that of the president, and thus “damage[d] public confidence in the entire constitutional system.”17 The Parliamentary Dissolution cases took the form of declaratory judgments, providing the defi nitive understanding of the relevant constitutional law. The Court’s decisions have no direct effect on the challenged policies because, in Organstreit proceedings, the Court is authorized only to “interpret” the Basic Law (Article 93 (1)). The organs concerned are expected to revisit the matter and pursue a resolution in line with the Court’s ruling. Th is signals that the framers were conscious of the political sensitivity of such disputes and, accordingly, allocated limited authority to the Constitutional Court to intervene. On these terms, a decision against the validity of the dissolution orders in the Parliamentary Dissolution cases would not have caused the cancellation of the planned elections. Executive Privilege and the Flick Case. Major constitutional clashes between the Federal Republic’s highest organs occur infrequently; the Parliamentary Dissolution cases are exceptional. Some commentators have seen separation of powers more directly implicated in the Court’s exercise of judicial review. The Court’s invalidation of major social policies, together with the instructions and warnings it frequently hurls at the legislature, have led to charges that the Court has overstepped its proper bounds by encroaching on the powers of Parliament.18 Justice Wolfgang Hoff mann-Riem of the Federal Constitutional Court, however, has defended judicial review on separation of powers grounds, arguing that “[t]here had to be a third power to keep the fi rst two branches [legislature and executive] in line.”19 He went on to note the history of judicial review in Germany, including references to the failed Frankfurt Constitution of 1849 and, more prominently, its invocation by the Imperial Court of Justice (Reichsgericht) in the 1920s.20 Th is history, of course, would culminate in the establishment of the Constitutional Court under the Basic Law, a tribunal with “particularly wide-ranging” jurisdiction to review acts of the Parliament.21 Perhaps not surprisingly Gerhard Casper also took an approving view of the Court’s expansive role in his keynote address at the formal state celebration on the Federal Constitutional Court’s fi ft ieth anniversary.22 Still, sweeping exercise of judicial review does not present classic separation of powers issues in the mold of Youngstown Sheet & Tube Co. v. Sawyer (1952), or even Immigration and Naturalization Service v. Chadha (1983).23 One issue that has produced a significant comparable case in Germany is the claim of executive privilege. In United States v. Nixon (1974)24 the Supreme Court ruled that a federal court could direct the president to produce certain recordings and documents over his objection that such executive communications enjoyed an implied unqualified privilege of immunity. Similarly, in the Flick Case (1984),25 the Federal Constitutional Court ruled that the Federal Finance and Economics Ministry must deliver certain corporate records to a parliamentary committee investigating an exemption of dm 1.5 million in capital gains earned by the Flick Corporation from its sale of Daimler-Benz stock. The committee was looking into charges that influen-

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tial persons in Flick’s managerial hierarchy had “transferred” large sums of money to high civil servants and politicians in exchange for the tax exemption. The ministry refused to produce certain documents on the grounds that they contained trade and tax secrets, the confidentiality of which was required by the tax code. The Green and Social Democratic committee members petitioned the Court to order the full disclosure of the missing records. In investigating the activities of the federal government, the Court declared that a parliamentary committee’s right to take evidence under the terms of Article 44 (1) of the Basic Law includes the right to demand documentary evidence. Even as the Second Senate acknowledged the existence of a “core sphere of executive autonomy” in which “a range of initiatives, consultations, and activities is immune to parliamentary oversight,” it held that, in the circumstances of this case, the Ministry of Finance and Economics had violated Article 44 by failing to comply with the committee’s request. “Where the government is accountable to Parliament,” said the Court, “documentary disclosure is an integral part of parliamentary control.” The Court emphasized that Parliament’s right to documentary evidence of the kind sought here is an essential aspect of the principle of separated powers. Nevertheless, the Court unanimously noted that, if circumstances require, the legitimate concerns of the executive for confidentiality can be satisfied by the committee’s examination of the relevant records in closed session. The Court again endorsed the authority of the Parliament over the federal government, in the context of parliamentary investigations, in the Minority Rights in Investigative Committees Case (2002; no. 5.1).26 The Second Senate held that the minority in a parliamentary committee has a right to request the review of a point or points of evidence if they believe that these matters will prove to be critical to the committee’s fi ndings. While the case ostensibly pitted a parliamentary minority against a parliamentary majority, and thus avoided explicit separation of powers issues, the Court’s decision nonetheless prevented the executive from hiding behind its majority in the Bundestag in order to avoid parliamentary oversight.27 Th is represents a concession to the view, mentioned earlier and developed more fully in Chapter 5, that the opposition in Parliament rather than the opposition of Parliament now serves as the most effective check on the executive. A more direct example of the Court’s willingness to uphold Parliament’s prerogatives over the federal government was at stake in the Surveillance of Members of Parliament Case (2009).28 The Constitutional Court’s Second Senate reiterated Parliament’s right to seek and obtain information from the government, a right rooted as much in the democratic principles discussed in Chapter 5 (especially Article 38 (1) and Article 20 (2) of the Basic Law), as in notions of separation of powers. The Court ruled that the government had not raised adequate security concerns to justify its refusal to answer questions addressed to it by members of the Parliament. Legislative-Executive Relations and the Budget. The budgetary provisions of the Basic Law embody numerous checks and balances within and between various

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constitutional organs. The federal government must submit all tax and appropriation bills simultaneously to the Bundesrat and the Bundestag (Article 110 (3)), where legislative delay, pending further negotiation, is always possible. Expenditures in excess of budgetary appropriations require the consent of the federal minister of fi nance, who in turn may grant his or her consent only “in case of an unforeseen and compelling necessity” (Article 112). By the same token, any law that exceeds the budgetary limit proposed by the executive requires the federal government’s consent (Article 113 (1)); the federal government may even “require the Bundestag to postpone its vote on such bills” (Article 113 (1)). Should Parliament fail to approve a new budget, the federal government may, according to Article 111, continue to make the payments necessary to meet its contractual responsibilities, execute the laws, and maintain institutions established by law. In the Budget Control Case (1977)29 the Constitutional Court clarified the meaning of some of these provisions. After affi rming the paramount and exclusive authority of the legislature to establish budgetary policy, the Second Senate emphasized the duty of all constitutional organs to cooperate in the timely enactment of a budget bill. In passages that recall the principle of comity in the federal-state context, the Court announced that constitutional organs are obliged to consider each other’s interests in the exercise of their constitutional responsibilities. In the exercise of his or her authority under Article 112, the federal minister of fi nance must, if time permits, communicate and consult with the legislature for the purpose of securing its consent to an expenditure in excess of that which has been authorized. An “unforeseen and compelling necessity” within the meaning of this Article exists “only if additional expenditures have become so urgent that the draft ing and introduction of a supplementary budget or budget amendment or a postponement until the next fi scal year can no longer be viewed as a reasonable alternative after a judicious assessment of the situation.”30 The duty to communicate in these special situations also extends to the relationship between the federal finance minister and the federal government. According to the Court, the government infringes on the authority of the Parliament if, in the exercise of its special powers under Article 111, it has not received adequate information on the basis of which a decision regarding the ability of the legislature to meet the crisis might have been made.

judicial versus legislative authority The German legal system, unlike the Anglo-American, does not regard judicial decisions as sources of law. Separation of powers as understood by Montesquieu and followed in the Continental legal tradition implies a regime of positive law in which legislatures are the supreme lawmakers. The following propositions fairly well summarize the German and, for the most part, Continental theory of lawmaking and judicial authority: the focus of all lawmaking authority within the state is the

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sovereign legislature; law is a closed system of logically arranged and internally coherent rules; all legal disputes must be resolved by reference to such rules; courts of law, independent of the legislature, are the proper agencies for interpreting law; courts should interpret laws literally and in strict accordance with the legislature’s will; their function, therefore, is to administer the law as written. Th is model of the judicial role obviously exaggerates the difference between the function of courts in civil-law and common-law systems. Nevertheless, the model broadly identifies a frame of mind that helps to explain traditional German attitudes toward the development of the law and the judicial role—and the separation to be maintained between those powers. The Princess Soraya Case provided the Court with an opportunity to reflect anew on the role of courts in a constitutional democracy in which elected legislatures make the law. 4.2 Princess Soraya Case (1973) 34 BVerfGE 269 [Th is constitutional complaint arose out of a civil damage suit for defamation brought by the ex-wife of the Shah of Iran against the daily newspaper Die Welt and a freelance journalist. The complainants had published a fictitious interview with Princess Soraya in which intimate details of her private life were revealed. The German Civil Code (Bürgerliches Gesetzbuch), however, contains no specific provision for a civil damage award for an invasion of privacy. Such an intrusion instead constitutes a criminal offense. Tort recovery, however, is possible under § 823 of the Civil Code if the plaintiff can show injury to “life, body, health, freedom, property, or some other right.” The Bundesgerichtshof (Federal Court of Justice) eventually interpreted “some other right” to include the “right to personality.” But § 253 of the Civil Code bars monetary relief for nonpecuniary injuries. Recovery for such injuries is possible only “in cases provided by written law.” No law allowed recovery for the injury sustained by the plaintiff. The Federal Court of Justice nevertheless authorized recovery in the light of changing social conditions and the fundamental values of the Basic Law, one of these values being the right to protect one’s personality. The affi rmation of a money damage award was contested by the complainants in part on the ground that the courts had exceeded their proper authority under the constitution. The Constitutional Court disagreed.]

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Judgment of the Second Senate. . . . C. IV. 1. The judge is traditionally bound by the law. Th is is an inherent element of the principle of separation of powers and, thus, of the constitutional state principle. Article 20 of our Basic Law, however, has somewhat changed the traditional formulation by providing that the judge is bound by “law and justice.” The generally prevailing view

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implies the rejection of a narrow reliance upon formally enacted laws. The formulation chosen in Article 20 keeps us aware of the fact that although “law and justice” are generally coextensive, they may not always be so. Justice is not identical with the aggregate of the written laws. Under certain circumstances justice can exist beyond the positive norms enacted by the state—justice, which has its source in the constitutional legal order as a meaningful, all-embracing system, functions as a corrective of the written norms. The courts have the task of identifying justice and making it a legal reality in binding cases. The constitution does not restrict the judge to applying the language of legislative mandates to a par ticu lar case. Th is concept of the judicial function presupposes that no gaps in the written legal order exist—a condition that may be desirable in the interest of legal certainty but is unattainable in practice. The judge’s task is not confi ned to ascertaining and implementing legislative decisions. The judge may have to make a value judgment (an act which necessarily has volitional elements); that is, bring to light and implement in his or her decisions those value concepts that are inherent in the constitutional legal order, but are not, or not adequately, expressed in the language of the written laws. In performing this task, the judge must guard against arbitrariness; his or her decision must be based upon rational arguments. The judge must make it clear that the written law fails to perform its function of providing a just solution for the legal problem at hand. Where the written law fails, the judge’s decision fi lls the existing gap by using common sense and “general concepts of justice established by the community.” In principle, no one has questioned the judge’s power and duty to hand down “creative decisions” since the adoption of our present constitution. The highest courts have claimed this power from the beginning, and the Federal Constitutional Court has always recognized it. The legislature has expressly bestowed upon the highest federal courts sitting en banc [i.e., when all the senates of the federal high court in question convene to decide a case together] the task of “further development of the law.” In some areas of the law, such as labor law, this task has become particularly important because legislation has not kept up with the rapid pace of social development. The only remaining question is what limits to impose upon such creative judicial decision making. We must keep in mind that the judge is bound by written law, a principle that we cannot abandon if the constitutional state principle is to be maintained. We cannot reduce these limits to a formula equally applicable to all areas of the law and to all legal relationships. 2. For purposes of the present decision we confine the formulation of the issue to the area of private law. In this area the judge is confronted with a great codification, the Civil Code, which has been in force for over seventy years. Th is fact has dual significance. First, the judge’s freedom to creatively develop the law necessarily grows with the “aging of codifications,” with the increased distance in time between the enactment of the legislative mandate and the judge’s decision in an individual case. The interpretation of a written norm cannot always, or for an unlimited period, remain tied to the meaning the norm had at the time of its enactment. One must explore what reasonable function the norm initially served. The norm always remains in the context of the social

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conditions and sociopolitical views it affects. As these conditions and views change, the thrust of the norm can, and under certain circumstances must, be adjusted to such change. This is especially true when, between the time of enacting and implementing a law, conditions of life and popular views on legal matters have changed as radically as they have in the present century. The judge cannot, by simply pointing to the unchanged language of the written law, avoid the conflict that has arisen between the norm as written and a change in society’s substantive notions of justice. If the judge is not to be derelict in his or her duty to pronounce “justice,” legal norms must be implemented more freely. Second, as experience dictates, legislative reforms encounter particularly great difficulties and obstacles when they are intended to revise great bodies of legislation that shape the system and character of the entire legal order as does the codification of private law contained in the Civil Code. 3. The decisions presently being challenged concern an issue (i.e., the question of recoverability of money damages for injury to an intangible interest) that was already controversial when the preparatory work on the draft of the Civil Code was in progress. Criticism of the solution chosen by the legislature was immediate and has never ceased, although it did not, at that time, involve constitutional arguments. Critics referred to legal developments in other countries of the Western world that have taken a more liberal approach toward the possibility of recovering money damages for injuries to intangible interests. [The Court here cited several comparative studies.] Consequently, critics could point out that nowhere in the West did an unlawful act so frequently remain without civil sanctions as in Germany—and for the sole reason that the act had “only” caused nonphysical damages. Opponents characterized the rule as a “legislative failure” because it limited the recovery of money damages for injury to intangible interests to a few enumerated special cases—cases, moreover, selected with a certain lack of underlying concept. Criticism became even sharper after the courts, under the influence of “the constitution’s power to shape private law,” took the step of recognizing the general right of personality. The gap that existed in the available remedies for a violation of that right thus became apparent. Th is problem, the importance of which the framers could not anticipate when draft ing the Civil Code, now urgently demanded a solution responsive to a changed consciousness of legal rights and values that a new constitution influenced. One could not deduce this solution from the enumerative provision of § 253. The courts faced the question of whether to close this gap by the methods at their disposal or wait for legislative intervention. When the courts chose the fi rst alternative, they found support from the writings of influential legal scholars. For this reason legal scholars widely approved the relevant decisions of the Federal Court of Justice and of other courts from the very beginning. Th is fact illustrates that these decisions were consistent with generally recognized concepts of justice and were not regarded as intolerable restrictions upon freedom of opinion or freedom of the press. . . . To the extent that these decisions were criticized, the opponents directed their criticism less against the result the Federal Court of Justice reached than against

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the methodological and doctrinal considerations with which the courts justified the new approach. Insofar as this involves a question of methodology in private law, it is not within the Federal Constitutional Court’s province to determine the validity of the critics’ objections. But one should not overlook the fact that the majority of scholars specializing in private law apparently regard the reasoning of the courts as dogmatically unobjectionable. . . . The other alternative, to wait for legislative regulation, cannot be regarded as constitutionally mandated under the circumstances. It is true that the federal government twice has tried to bring about a legislative solution to the problem of protecting an individual’s personality right in the area of private law. But the bills drafted in 1959 and 1967 died early in the legislative process even though there was no indication of any legislative intention to perpetuate the status quo. One cannot blame the judge if, compelled to decide every case submitted and convinced that he or she cannot rely upon the uncertain future intervention of the legislature, he or she does not adhere to the literal meaning of the existing written law in a case where adherence would largely sacrifice justice. The method by which the Federal Court of Justice reached the decisions in question is constitutionally unobjectionable for a further reason: Th is method deviated from the written law only to the extent absolutely necessary to resolve the legal problem presented by the instant case. The Federal Court of Justice has not regarded § 253 in its entirety as no longer binding. Nor has it treated that provision as unconstitutional. . . . The court has left the enumerative principle expressed in § 253 intact, and has merely added one situation to the legislature’s own enumeration of situations in which money damages can be recovered for injury to intangible interests. The Federal Court of Justice found this addition to be compellingly justified by the evolution of social conditions as well as by a new law of higher rank: Articles 1 and 2 of the Basic Law. Thus, the Federal Court of Justice and other courts following its holdings have neither abandoned the system of the legal order nor have they exhibited an intention to go their own way in making policy. They have merely taken a further step in developing and concretizing basic ideas inherent in the legal order molded by the constitution, and they have done so by means that remain within this system. Therefore, the legal rule found by creative judicial decision is a legitimate part of the legal order, constituting a limitation upon the freedom of the press as a “general statute” within the meaning of Article 5 of the Basic Law. The rule’s purpose is to guarantee effective protection of the individual’s personality and dignity. These are interests at the center of the constitutional ordering of values. Protecting them in this way strengthens the effect of constitutionally protected fundamental rights in a par tic u lar area of the law. For these reasons, complainants’ constitutional arguments must fail.

∂

In 1997 the Court was again asked to consider whether the ordinary civil courts, including the Federal Court of Justice, had exceeded the narrowly construed judicial

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role by broadly interpreting the Civil Code to contemplate the characterization of unwanted children as a form of recoverable damages. In contrast to Princess Soraya, however, the objection to the Unwanted Child Case was that the ordinary court’s alleged overreaching led to the violation rather than the actualization of the core constitutional values of human dignity and personality. 4.3 Unwanted Child Case (1997) 96 BVerfGE 375 [Unwanted Child joined two tragic suits. The fi rst case involved a failed vasectomy procedure that led to an unplanned pregnancy. The second case involved the birth of a physically and mentally disabled child, the couple’s second child affected by these conditions. In the second of these cases, as part of their family planning, the parents sought the advice of medical specialists after the birth of their fi rst disabled child. The defendant doctor advised the couple that an inherited disability was extremely unlikely in their future pregnancies and that the couple should not forgo having more children on those grounds. In both cases the plaintiffs sought and were awarded, among other damages, the costs of supporting the children. The defendant doctors raised constitutional complaints against the awards in the Federal Constitutional Court. First, the defendants argued that the Civil Code did not provide for these damage awards and that the ordinary courts’ interpretation of the Civil Code to allow damages constituted a far-reaching form of progressive judicial development of the law in violation of separation of powers (Article 20 (2) and (3)). Second, the defendants argued that, even if the ordinary courts had acted within their power in interpreting the Civil Code to permit these damages, to do so would be to instrumentalize a human being in violation of the constitutional protections of human dignity and personality (Articles 1 and 2 of the Basic Law). The First Senate, in a 6–2 decision, found neither a violation of separation of powers nor basic rights in the decisions of the ordinary courts.]

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Judgment of the First Senate. . . . 2. The interpretation of these provisions by the civil courts does not exceed the limits of judicial competence arising from Article 20 (2) and (3) of the Basic Law. a. The interpretation of ordinary statute law, including the choice of the method to be used in this regard, is a matter for the ordinary courts other than the Federal Constitutional Court and is not to be examined for correctness by the latter. The Court is required only to ensure that the requirements of the Basic Law are adhered to in this regard. Article 20 (2) of the Basic Law gives expression to the principle of separation of powers. Even though this principle has not been formulated in the Basic Law in the

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sense of a strict separation of the functions and a monopolization of each individual function by a par ticu lar organ, in any event it precludes the courts from laying claim to powers that have been clearly conferred upon the legislature by the constitution. Under Article 20 (3) of the Basic Law the judiciary is bound by law and justice. It would be incompatible with that provision if the courts were to relinquish the role of a body applying laws and assume that of a legislative authority, thereby evading their obligation to be bound by law and justice. These constitutional principles do not preclude the courts from further developing the law. In view of the increased pace of change in social conditions and the legislator’s limited scope for reaction, and of the open wording of numerous statutes, the adaptation of prevailing law to changed conditions is one of the tasks of the judicial branch. Th is is especially true given the increasing gap in time between the adoption of a statutory requirement and judicial decisions in par tic u lar cases. The Court has declared this specifically with reference to the Civil Code. The courts may not, however, avoid the statute’s meaning and purpose as determined by the legislature. Their task is confi ned to giving effect to that meaning and purpose as reliably as possible under changed conditions. If the changed conditions are new types of possibilities for action and influence created by scientific and technological progress, the legal fi nding will, as a rule, consist of an expansion of the field of application of an interpretation that is already current. The legislature’s prerogative of setting the purpose of a statute will not normally be affected by this. As the development of law also affects ordinary law below the constitutional level, answering the question of whether and to what extent changed conditions necessitate new legal answers is likewise the responsibility of the ordinary courts. In principle, therefore, the Constitutional Court may not substitute its own assessment for that of the ordinary courts. From the point of view of Article 20 of the Basic Law, the Constitutional Court’s review is confi ned to evaluating whether, in developing the law, the ordinary court has respected the fundamental legislative decision and followed the recognized methods of interpretation. b. The challenged decisions meet this criterion both in respect of contractual liability for child maintenance and in respect of compensation for pain and suffering connected with a pregnancy and birth that arose against the woman’s will. With regard to contractual liability, the challenged decisions are based both on the conventional understanding of pecuniary damage, according to which, in principle, maintenance obligations may also be regarded as damage within the meaning of § 249 of the Civil Code, and on the ascertainment of damage according to the offsetting method. The Federal Court of Justice measures contractual liability against the purpose of the contract—prevention of procreation and birth of a matrimonial child, including for economic reasons—and restricts the protective scope of the contract to the spouses. The decisions are based upon the long-developed principles governing general contractual liability, which have been extended to new cases of medical professional activity. Whether a further development of the case law relating

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to damages in a different direction would have been possible does not need to be discussed here, since the Court is not required to examine questions of ordinary law concerning principles of civil law. In any case, it is in keeping with the law of medical practitioner’s liability, which has developed over many years, that, in cases of the present type, the civil law has sought appropriate solutions to reproductive medicine’s new possibilities of influence and control. It cannot be argued that the Federal Court of Justice, at the time it was establishing the extent of liability for damages, considered that restrictions were necessary. The Federal Court of Justice restricted, by means of judge-made law, the liability of the medical practitioner with regard to value judgments at the interface between damages-law and family-law issues. Th at does not call into question the method for ascertaining damages. Nor are the limits of judge-made application of the law to the facts exceeded insofar as the decisions award to the women with unwanted pregnancies compensation for pain and suffering in respect of the complaints connected with pregnancy and childbirth. The objection of an impermissible widening of § 253 of the Civil Code fails to take sufficient account of the fact that § 847 of the Civil Code expressly permits pecuniary compensation for nonmaterial damage. Insofar as the Federal Court of Justice assesses an unwanted pregnancy as an unauthorized material interference with physical integrity and, therefore, as a personal injury, it acts within the framework of conventional principles of civil law.

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Dynamics of Judicial Lawmaking. The Court emphasized its limited role in the review of the decisions of the ordinary courts, explaining that it is charged only with ensuring that constitutional standards are observed in the otherwise fully independent activities of the ordinary courts. The Court then reiterated the more dynamic view of the judiciary’s lawmaking competence that had been announced in Princess Soraya.31 Besides finding no constitutionally objectionable separation of powers issues in the case, the First Senate also found the ordinary courts’ consideration of children as a potential form of recoverable damage to be compatible with the basic rights protected by the constitution. The doctors’ right to property (Article 14 (1)) and occupational freedom (Article 12 (1)) were not implicated by the ordinary courts’ decisions. The Court also concluded that the highest fundamental value in the order created by the Basic Law, namely the protection of human dignity (Article 1 (1)), was not violated. The Court acknowledged the constitutional responsibility that befalls the ordinary courts as a result of the “horizontal effect” doctrine (Drittwirkung), pursuant to which the constitution’s “objective order of values” (as discussed in Chapter 2) extends to confl icts involving private parties. The Court then defi ned the scope of its review, limiting it to “mistakes in interpretation, which involve a fundamentally incorrect view of the meaning of a fundamental right, especially concerning the scope of its protection, and which also are of considerable weight in their material significance.”32 The Court’s majority concluded that awarding damages for unwanted children did not rise to this standard because the Federal Court of Justice’s jurisprudence focused on the costs of

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supporting an unplanned child and not on the commodification of the existence of the child itself. Th is characterization of damages, the Court noted, is common to the law governing a myriad of other private harms. The First Senate split 5–3 on whether its characterization of the human dignity of the unwanted children contradicted the Second Senate’s abortion jurisprudence. Had the majority concluded that the First Senate’s reasoning departed from that of the Second Senate, then the matter would have to be presented to the Court’s plenum (both senates sitting together as a panel of sixteen justices). Th is part of the First Senate’s judgment, and the Second Senate’s objection to the First Senate’s conclusion that there was no need to engage the plenum (the Second Senate’s objection was fi led in the form of an annex to Unwanted Child) are discussed in Chapter 1. Princess Soraya and Unwanted Child involved an attack on the judiciary for treading on the legislature’s near-exclusive competence over lawmaking. Having established that the Basic Law’s scheme of separation of powers permitted the judiciary to participate in the progressive development of the law, the Court also needed to determine whether the legislature is obliged to bring allegedly flawed legislation into harmony with the guarantees of the constitution. 4.4 Aircraft Noise Case (1981) 56 BVerfGE 54 [Pursuant to the Aircraft Noise Act of 1971, property owners complained about noise emanating from the Düsseldorf-Lohausen airport. When these actions brought them no relief, the property owners fi led constitutional complaints in the Federal Constitutional Court against the administrative authorities and the relevant statutes. The Court rejected complaints against the administrative authorities because the complainants had not yet exhausted all of their administrative remedies. The Court also rejected the complaints against the statute because the complainants had failed to fi le their complaints within one year of the statute’s enactment, as required by the Federal Constitutional Court Act. Nevertheless, the Court accepted the complaints to the extent that they alleged an unconstitutional omission on the part of the legislature. In this part of the case the complainants argued that, in enacting the noise control statute, the legislature failed to adequately consider the requirements of Article 2 (2) of the Basic Law, which guarantees the rights to life and the inviolability of one’s person. On this substantive question, however, the Court did not agree with the complainants.]

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Judgment of the First Senate. . . . B. II. . . . Until now, we have admitted complaints of this type (i.e., complaints against the legislature’s failure to consider constitutional requirements) only exceptionally

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and only when the complainant could invoke an explicit commitment in the Basic Law that essentially defi nes the content and extent of the legislature’s duty. Th is requirement is not fulfi lled here. . . . After the fi ling date for challenging the implementation of specific legislation has expired, a constitutional complaint arising out of an omission of the legislature may be considered only under the special aspect elaborated upon in more recent opinions; namely, that the legislature by its inaction might have violated a constitutional duty to amend a statute originally regarded as constitutional. Because of the great importance of noise abatement the Court has put aside these problems of justiciability so that it may clarify the issue of substantive law in this case. . . . C. I. 1. The constitutional standard under consideration is the right of physical integrity protected by Article 2 (2). Our accepted jurisprudence does not merely protect the individual rights of citizens against governmental intrusion. Rather, governmental bodies have the duty, based upon the objective legal content of Article 2 (2), to shield and promote the legal interests therein enumerated. In par ticu lar, they must protect these interests from unlawful infringement by others. . . . 2. . . . In recent opinions the Court has repeatedly explained that the legislature may be constitutionally required to amend a statute even though it was regarded as constitutional when originally enacted. In the Kalkar I Case the Court declared: “If the legislature has made a decision the basis of which has become questionable due to new, originally unanticipated developments, then it might be obliged by the constitution to examine whether or not the original decision is to be upheld under the changed circumstances. The duty to remedy this defect may be considered primarily in areas relating to basic rights if the government, by creating licensing requirements and granting licenses, has accepted responsibility for the possible impairment of basic rights. . . .” It is possible to argue that the legislature has a duty to amend the original noise control statute because the frequency of fl ights has rapidly increased since the early 1960s [when the law was enacted] and, in the meantime, the transition to jet-powered aircraft has seriously aggravated the noise situation. In addition, we agree with the complainants’ view that, in the light of these developments, the legislature may not confi ne itself to limiting the acceptable noise level to that which the current technical state of the art makes unavoidable. . . . In a legal order oriented toward the individual, the governing principle must be an assessment of what harm or danger the individual can be expected to bear after weighing competing interests. . . . II. 1. Contrary to the opinion of the complainant, the legislature has not violated any protective duty resulting from Article 2 (2) by failing to amend the statute. . . . Th is result is based on the fact that the Court, within the framework of a constitutional complaint of the type presented here, may intervene only if the legislature has manifestly violated its duty. In the Abortion I Case, and again in the Schleyer Kidnapping Case, the Court emphasized that governmental bodies (legislative and executive branches) are responsible for the form and manner in which they fulfi ll the government’s duty under

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Article 2 (2). They must decide what measures are necessary and proper for carry ing out this duty. . . . Th is limit on constitutional review seems necessary because deciding how the state is to implement its affi rmative duty to act and protect the constitution’s objective values through active legislative measures is a highly complex issue. The state’s duty to act is acknowledged here in order to ensure the citizen’s enjoyment of the basic rights secured by the constitution. Various solutions are possible depending on the assessment of the facts, the concrete legislative aims, and the suitability of the imaginable ways and means. A policy decision in this area, which often demands compromise, is subject to the principles of separation of powers and parliamentary democracy. . . . Normally, the Court may review such a decision only up to a certain point, unless legal interests of the highest importance are at stake. These considerations are of even greater weight if the issue concerns not just whether the legislature has violated its affi rmative duty to protect objective values, but whether it did so by failing to amend an existing law. The Court can find such an omission to be unconstitutional only if two factors exist. First, it must be evident that an originally valid statute is now defective because of changing circumstances. Second, notwithstanding this, the legislature has either done nothing or has taken obviously erroneous measures to remedy the situation. In the realm of aircraft noise abatement one may not disregard the fact that no reliable scientific findings are available concerning the limits of reasonable aircraft noise burdens. Additionally, because international air traffic is so complex, the legislature must have sufficient flexibility . . . to pass legislation on this matter. 2. Considering this standard of review, we cannot conclude that the legislature has manifestly neglected its duty to protect citizens against noxious aircraft noise by its failure to amend existing legislation. The measures taken since the early 1970s to carry out the statute defy such a conclusion.

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Klass Case. In a politically charged case decided three years before Princess Soraya, the Court also considered the relationship between the legislature and the judiciary. The Klass Case (1970) involved an amendment to the Basic Law that would permit wiretaps and other interferences with private letters and telephone conversations when necessary to “protect the free democratic basic order or the existence or security of the Federation or of a Land.” The amendment (Article 10 (2)) further stipulated “that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.” Separation of powers was one of the grounds on which the amendment’s validity was questioned.33 The Court answered these criticisms as follows: Nor does substitution of recourse to the law by some other judicial control as provided for in Article 10 (2) [2] violate the principle of separation of powers. . . . Th is principle does not demand a strict separation of powers. In exceptional cases legislative functions may be exercised by executive and administrative bodies, or executive and administrative functions may be exercised by legislative bodies. In exceptional

Separ ation of Powers 175 cases the principle of separation of powers also permits legal protection against acts of the executive to be furnished not by courts but by independent institutions that have been appointed or established by Parliament and that operate within the framework of the executive department. The essential point is that the rationale for separation of powers, namely reciprocal restriction and control of state power, is still fulfi lled.34

delegation of legislative power The Basic Law establishes the primacy of the legislature in the making of law. Legislative authority may be delegated, but the principle of “legality of administration” (Gesetzmäβigkeit der Verwaltung) puts sharp limits on such delegations. Article 80 (1), the Basic Law’s main delegation clause, authorizes national and state executive branch officials to issue regulations (Rechtsverordnungen) having the force of law, but “the content, purpose, and scope of the authority conferred shall be specified in the law.” In addition, the legal basis of any such authorization must appear in the regulation, and “if the law provides that such authority may be further delegated, such subdelegation shall be effected by statutory instrument.” As one commentary on the Basic Law notes, Article 80 represents a “conscious departure” from the Weimar-era practice of conferring virtually unlimited discretion on executive officials to carry out the will of the lawmaker.35 The Basic Law thus imposes a high standard of rationality and accountability on the administrative process.36 4.5 Emergency Price Control Case (1958) 8 BVerfGE 274 [Sections 1 and 2 of the Price Control Act authorized the federal director of economic administration as well as the directors of the highest state administrative agencies to set prices, rents, and fees when market conditions in a given area are deplorable. To implement these price controls § 2 empowers the director of the competent administrative agency to issue administrative orders. Five citizens fi led objections to orders that forced them to use statutory prices as the basis for the rents and fees they charged to their customers. Besides challenging the administrative orders, these citizens also raised a facial challenge to the constitutionality of § 2. They contended that the provision was incompatible with Article 80 of the Basic Law because it failed to adequately define the delegation of authority according to content, subject matter, purpose, and scope. Confronted with an issue of constitutional magnitude, the courts involved set aside judicial proceedings and submitted the question to the Constitutional Court pursuant to its concrete judicial review jurisdiction. In holding § 2 of the Price Act constitutional, the Court reaffirmed the constitutional principles embodied in Article 80.]

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Judgment of the Second Senate. . . . C. VI. 2. The basic tenets of the constitutional state principle require that an empowering statute adequately limit and defi ne executive authorization to issue burdensome administrative orders according to content, subject matter, purpose, and scope . . . so that official action will be comprehensible and to a certain extent predictable for the citizen. Th is result follows specifically from the principle that an administrative agency must function lawfully, which requires . . . a limited and narrowly defi ned executive authorization for the issuance of burdensome administrative orders. Its purpose is to make encroachments by the state as predictable as possible. The statute must regulate the agency’s activity and may not confi ne itself to articulating general principles. Limiting the encroaching agency through solely procedural principles also will not suffice. A “vague blanket provision” that would permit the executive branch to determine in detail the limits of the individual’s freedom confl icts with the principle that an administrative agency must function according to law. Further, the principle of separation of powers dictates this result. If a statute does not adequately define executive powers, then the executive branch will no longer implement the law and act within legislative guidelines but will substitute its own decisions for those of the legislature. Th is violates the principle of the separation of powers. Finally, the constitutional state principle supports this holding. Th is principle requires the most comprehensive judicial protection possible from state encroachments upon the legal sphere of the individual, as guaranteed today by Article 19 (4) of the Basic Law. The judiciary’s mandate to ensure a citizen’s legal protection against encroachment on his or her rights by the state can be carried out only if the courts can review the norm’s implementation by the executive agency. For this reason as well the statute must adequately defi ne the authorization for encroachment.

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Limits of Administrative Lawmaking. Persons harmed by any governmental authority may challenge the legality of the act in question before an administrative tribunal unless federal legislation has assigned a given sphere of public law to another set of specialized (e.g., social, labor, or fi nance) courts. Administrative courts also hear disputes between governmental agencies over their respective obligations under public law. A typical administrative law case involves a complaint against a licensing agency for canceling, or failing or refusing to grant, an individual’s or legal entity’s permit to carry on some trade or activity regulated by public law. If the agency has exceeded the limits of its discretion or otherwise acted illegally, the courts may annul such action. Ordinarily such cases do not raise constitutional questions. The impact of the Basic Law on administrative law is nevertheless substantial.37 First, courts may nullify administrative regulations and executive decrees if officials abuse their discretion or their acts violate fundamental law. Second, and particularly

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within the sphere of licensing, the Court has tended “to extrapolate standards for the shaping of procedural law from the constitutional rights of individuals.”38 For example, in the Mülheim-Kärlich Case (1979) the Court found the peaceful use of nuclear energy constitutional in the face of an objection that nuclear power threatens constitutional rights to life and bodily inviolability (Article 2 (2)).39 The Court, however, cautioned that certain kinds of formalities, such as public participation in nuclear power licensing procedures, may be necessary to protect basic rights and liberties. Finally, Article 100 (1) of the Basic Law requires courts to submit their doubts about the validity of a statutory delegation to the Court for resolution. The Kalkar I Case arose when the Administrative Court of Appeals of North Rhine–Westphalia referred the Atomic Energy Act to the Court for a decision on the validity of its provisions delegating authority to administrative officials. Much of the opinion, which is featured below, deals with whether the statute adequately specified the technical and scientific standards to be used in licensing nuclear power plants. 4.6 Kalkar I Case (1978) 49 BVerfGE 89 [Section 7 (1) of the Atomic Energy Act provides that any person who constructs or operates an installation for the production or fission of nuclear fuel requires a license. Authorities may grant such a license under § 7 (2) only if the licensee “takes every necessary precaution in the light of existing scientific knowledge and technology to prevent damage resulting from the construction and operation of the installation.” On 18 December 1972 licensing authorities granted a fi rst partial construction permit for the SNR-300 fast-breeder nuclear power station in Kalkar. The owner of a farm within a mile of the station sued to have the reactor’s license revoked because the plant failed to follow certain administrative procedures under § 7 (2). A local administrative court denied his claim and rejected the argument that these procedural omissions—resulting in the permit to build the plant—compromised his rights to life and personality. In view of the awesome implications for public safety and the rights of citizens involved in the production and recycling of plutonium, the North Rhine–Westphalia Administrative Court felt that Parliament had a duty to establish more concrete criteria for the construction of fast-breeder reactors than those provided in the Atomic Energy Act. The court of appeals referred this question to the Federal Constitutional Court pursuant to its concrete judicial review jurisdiction. The Constitutional Court found no constitutional infi rmity.]

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Judgment of the Second Senate. . . . B. II. Section 7 (1) and (2) of the Atomic Energy Act are compatible with the Basic Law.

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I. a. The Basic Law does not confer on Parliament total priority in fundamental decision making. By insisting upon separation of powers it imposes limits on Parliament’s authority. The Basic Law relegates far-reaching decisions, particularly those of a political nature, to other supreme constitutional organs. Examples include the chancellor’s power to determine general policy guidelines (Article 65 (1)) and the president’s authority to dissolve the Bundestag (Article 68) and declare a state of legislative emergency (Article 81). . . . The Bundestag may check the exercise of such powers by electing a new chancellor and bringing down the federal government. . . . A monistic theory of power, incorrectly deduced from the principle of democracy, which would confer on the Parliament a monopoly over decision making must not undermine the concrete distribution and balance of political power guaranteed by the Basic Law. Other institutions and organs of political authority do not lack democratic legitimacy merely because parliamentary delegates are the only officials elected by direct popu lar vote. Legislative, executive, and judicial organs derive their institutional and functional democratic legitimacy from Article 20 (2) of the Basic Law. . . . Nevertheless, we are able to deduce from the principle of parliamentary democracy that Parliament and its decisions do have priority vis-à-vis other branches of government. We hold this to be a principle of interpretation transcending all concrete allocations of authority. . . . b. The case at bar deals with legislation, an area where the Basic Law specifically allocates authority to the Bundestag. It follows from the principle of legality that executive acts that significantly affect the freedom and equality of citizens must be based on law. 2. Section 7 (1) and (2) of the Atomic Energy Act do not violate this principle. . . . a. Separation of powers is not specifically mentioned in the constitution. Its validity, however, follows from the terms of Article 20 (3). The interpretation of this principle has undergone change in recent years, especially in the light of its democratic component. Today our established jurisprudence makes clear that the legislature is obligated . . . to make all crucial decisions in fundamental normative areas, especially in those cases where basic rights become subject to governmental regulation. . . . To determine those areas in which governmental acts require a basis in law, one must consider the subject matter and “intensity” of the planned or enacted regulation, particularly taking into account the fundamental rights granted by the Basic Law. One must also use similar criteria to judge whether the legislature has established the essential legal standards for the matter to be regulated as the constitutional requirement of a specific enactment mandates and has not left this for the administration to determine. The constitutional requirement of a specific enactment (Gesetzesvorbehalt) means that only the legislature may enact statutory restraints upon fundamental rights contained in the constitution where the language of the constitution expressly provides for such restraints. b. The normative decision whether to permit the peaceful uses of nuclear energy in the Federal Republic of Germany is a fundamental and essential decision in the

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sense that a specific enactment is constitutionally required. Th is is so because of [the decision’s] far-reaching effects on citizens, in par tic u lar on their sphere of freedom and equality, as well as on their general living conditions; and because of the kind and intensity of regulation necessarily connected with it. Only the legislature has the authority to make such a decision. The same applies to regulations fi xing the licensing of nuclear installations within the meaning of § 7 (1) of the Atomic Energy Act. . . . The legislature has decided to promote the peaceful use of nuclear energy by means of a formally enacted law—the Atomic Energy Act. This decision includes fastbreeder reactors. . . . Contrary to the opinion of the courts that earlier ruled in this case, the legislature was not bound to include in the Act a provision declaring that it was ready to accept the risks possibly resulting from such a reactor. The legislature bears the political responsibility for the consequences of its decision. . . . . . . In direct relation to whether this norm is unconstitutional because it is too vague and thus fails to meet the substantive constitutional requirement of specific enactment is the question whether § 7 of the Atomic Energy Act contains essentials precise enough to permit the licensing of the fast breeder. We must answer in the affi rmative. Section 7 (1) and (2) regulate all essential and fundamental questions of the licensing procedure and fi x with sufficient precision the requirements for the construction, operation, and modification of nuclear installations, including fast-breeder reactors. c. . . . If the basis on which the legislature relied when enacting policy is called into question by new, unanticipated developments, then the constitution may oblige the legislature to reexamine whether the original policy is to be upheld in the light of changed circumstances. . . . It is constitutionally unobjectionable that the legislature has not yet examined the fast-breeder technology and its possible consequences—for instance, the issue of atomic waste disposal. As the federal government has always emphasized, the reactor to be built in Kalkar is only a prototype. The construction and operation of this reactor do not mean a decision to use it on a large industrial scale. The reactor’s purpose is rather to help to prepare for the decision, which the legislature will make in the 1990s at the earliest. We cannot now foresee whether the court that earlier ruled in this case is correct in assuming that the industrial use of the fast breeder may lead to dangerous conditions and consequences. Suitable means may be available in the future to counter the dangers to individual freedoms that the ordinary court fears. Taking evidence on these questions would serve little purpose since these issues are mainly related to possible political developments of the most general nature. Only the future will show whether this decision to implement breeder technology will be useful or harmful. In this necessarily uncertain situation the legislature and the government primarily have the political responsibility for making what they consider pragmatic decisions within the confi nes of their respective authority. Under these circumstances it is not the function of the courts to substitute their judgment for

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that of the political branches when assessing the situation because legal criteria for such decisions do not exist. Where reasonable doubts are possible—whether or not the dangers feared by the court that earlier ruled on the case will materialize—all organs of the state, and thus the legislature as well, have the constitutional duty to make every effort to recognize possible dangers in time and to counter them by constitutional means. If, in the future, some probability of these dangers exists—in the judgment of the . . . responsible political organs—the legislature would again have a duty to act. . . . 3. Section 7 (1) and (2) of the Atomic Energy Act do not violate the constitutional requirement that laws be drafted with sufficient precision. . . . b. . . . The provisions of the statute in question make use of undefi ned legal terms such as “reliability” and “necessary knowledge” (unbestimmte Rechtsbegriffe)—terms that are not precisely defi ned. The analysis centers on whether such terms should be void on account of their vagueness. The use of these terms is constitutionally permissible. The degree of precision required depends on the nature of the matter to be regulated and the intensity of the regulation. . . . In any case, such terminology has been traditionally subject to interpretation by the legislature, executive, and judiciary. . . . Section 7 (2) [3] is also sufficiently precise. Th is provision relates to the field of technical safety. Any legislative regulation of this field . . . must confront the par ticular difficulties that reside in the nature of the matter to be regulated. When fi xing norms that keep abreast of scientific and technological developments the legislature has a number of options available for making these developments legally binding. These norms have one common feature: by using undefi ned legal terms the legislature shift s the difficulties involved in giving these terms specific, binding content and adjusting them to scientific and technological developments to the administrative and—should litigation arise—the judiciary. Thus, administrative authorities and courts have to make up the “regulatory deficit” incurred by the legislature. The law may, for example, refer to “generally recognized technical rules.” In this case, agencies and courts may limit themselves to ascertaining the majority opinion among practicing technicians when deciding whether or not the technical work materials may be brought into the stream of commerce. Th is criterion has the disadvantage of lagging behind developing technology. One way to avoid this drawback is to refer instead to the “state of the art,” which does not require general recognition and practical confi rmation but makes it more difficult for courts and agencies to establish and assess relevant facts. Section 7 (2) [3] of the Atomic Energy Act goes a step further by referring to “existing scientific knowledge,” which requires the legislature to make even stronger efforts to keep regulations abreast of scientific and technological developments. It is within the legislature’s discretion to use either undefi ned legal terms or precise terminology. Good reasons support the use of undefi ned legal terms in § 7 (2) [3]. The wording of § 7 (2) [3] of the Atomic Energy Act, which is open to future

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developments, serves as a dynamic protection of fundamental rights. It furthers the protective purpose of § 1 (2) of the Atomic Energy Act in the best possible way currently available. To fi x a safety standard by establishing rigid rules, if that is even possible, would impede rather than promote technical development and adequate safeguards for fundamental rights. Setting up rigid rules would be regression at the expense of safety. We must tolerate some uncertainty of the law, at least where the legislature would otherwise be forced to adopt impractical regulations or to refrain from any regulation at all. Both alternatives would eventually impair the protection of fundamental rights. . . . These considerations apply equally to the so-called residual risk that must be considered in the context of § 7 (2) [3]. While this provision does not allow for residual damage resulting from the construction or operation of a nuclear installation, it permits licensing even if the probability of future damage cannot be precluded with absolute certainty. The law leaves it to the executive to determine . . . the kind and extent of the risk that may or may not be accepted. With regard to the vagueness doctrine, which has the primary constitutional function of defi ning when the executive is to act vis-à-vis the legislature, § 7 (2) does not violate the constitution— especially in the light of the subject matter to be regulated. It follows from the protective purpose of § 1 (2) and (3), as well as § 7 (2) and other provisions of the Atomic Energy Act, that the legislature wants all damage, danger, and risks specific to the installation and operation of the reactor to be considered and that the probability of an accident, which may be accepted when licensing an installation, must be as low as possible. Indeed, this probability must be lower as the type and consequences of harm become more serious. By referring to existing scientific knowledge and technology, the law forces the executive agency to observe the principle of the best possible protection against dangers and risks. The legislature was not bound, however, to defi ne with precision the possible kinds and factors of risk. . . . The assessment of risks resulting from a nuclear installation depends upon a multitude of circumstances, many of which are constantly evolving. . . . In the interest of flexible protection of life and property the executive must assess and constantly adjust safety measures—a task it is better equipped to perform than the legislature. The unavoidable degree of uncertainty in assessing such risks resides in the nature of human knowledge.

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The Citation Requirement (Zitiergebot). Emergency Price Control and Kalkar I are primarily concerned with the requirement, set forth in Article 80 (1) [2] of the Basic Law, that Parliament clearly delineate the content, purpose, and scope of delegated regulatory competence in the relevant authorization statute. Article 80 (1) [3] imposes the citation requirement: “Each statutory instrument shall contain a statement of its legal basis.” The Court strictly enforced this provision in the Chicken Regulation Case featured below.

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A 1971 amendment of the Basic Law expanded the federation’s concurrent legislative authority to include “the protection of animals” (Article 74 (20)).40 Pursuant to that authority the Bundestag enacted the Animal Protection Act (Tierschutzgesetz) with the purpose of regulating industrial animal husbandry through statutes or regulations. A 1986 amendment to the Animal Protection Act elevated the legislative scheme’s concern for animal welfare and mandated that this new perspective be implemented through regulations. In par tic u lar, industrial animal husbandry was placed under statutory commands to provide animals with feeding and freedom-of-movement conditions appropriate to their breed and freedom from pain and suffering (Animal Protection Act § 2). The federal minister for food, agriculture, and forests (now the federal minister for food, consumer protection, and agriculture) was empowered under the law to specify the details of the required animal protection through regulations (Animal Protection Act § 2a). An Animal Protection Commission was created to advise the minister (Animal Protection Act § 16b). At the same time, animal protection became a concern of European policy makers. Under the auspices of the Council of Europe, the European Convention for the Protection of Animals Kept for Farming Purposes was concluded in 1976. Germany ratified the Convention in 1978. The Bundestag legislation giving domestic force to the Convention empowered the federal minister for food, agriculture, and forests to implement the recommendations of the Convention’s Standing Committee through the promulgation of regulations. In 1986 the Council of the European Economic Community also issued Directive 86/113, which established minimum standards for the protection of laying-hens kept in cages (although the European Court of Justice would invalidate the directive two years later). Against the backdrop of this domestic and European policy activity, the federal minister for food, agriculture, and forests eventually succeeded in issuing the 1987 Regulation for Keeping Chickens (Hennenhaltungsverordnung), which defi ned the conditions in which laying-hens should be kept, especially ensuring minimum standards for feeding and freedom of movement. The preamble to the Regulation for Keeping Chickens identifies § 2a and § 16b of the Animal Protection Act as the regulation’s legal basis. But, in the long process leading to the promulgation of the regulation, the federal minister for food, agriculture, and forests also had invoked the Eu ropean Convention and the Council Directive as justifications for the regulatory regime. 4.7 Chicken Regulation Case (1999) 101 BVerfGE 1 [In an abstract judicial review proceeding before the Federal Constitutional Court, North Rhine–Westphalia alleged that the Regulation for Keeping Chickens was incompatible with the Basic Law chiefly because it had run afoul of the constitution’s terms for the delegation of legislative competence. The

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Second Senate agreed and focused, inter alia, on the citation requirement Zitievgebot of Article 80 (1) [3].]

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Judgment of the Second Senate. . . . D. The Regulation on Keeping Chickens—insofar as it is still amenable to review under constitutional law following the fi ndings in section C of this decision—is unconstitutional in its entirety on account of its breach of the citation requirement laid down in Article 80 (1) [3] of the Basic Law, and must therefore be declared void pursuant to § 78 (1) [1] of the Federal Constitutional Court Act. I. According to the third sentence of Article 80 (1) of the Basic Law, a regulation pursuant to federal legislation is to contain a statement of its legal basis. Th is requires not only the enabling statute as such, but also the individual enabling provision of that statute, to be specified in the regulation. If the issuer of the regulation intends, according to his or her clearly expressed will, to make use of several bases of authority, he or she must state these in full in the regulation. 1. Within the system of separation of powers under the Basic Law the citation requirement serves the purpose of rendering the delegation of legislative competence to the executive in its statutory bases understandable and reviewable. Under the democratic and constitutional state principles, established by the Basic Law, legislation by the executive requires special authorization from the legislature. Article 80 (1) of the Basic Law lays down the requirements that these authorizations, and the regulations issued on the basis of these authorizations, must satisfy. The citation requirement in Article 80 (1) [3] of the Basic Law is intended not only to make the statutory basis of authority identifiable and thus traceable. It is also designed to make it possible to establish whether the issuer of the regulation actually intended to make use of any statutory authorization at all when enacting the provisions. The executive must, by indicating its basis of authority, ascertain the legislative program assigned to it and remain confi ned to that program. It is, therefore, not only a matter of whether the executive is actually operating within the limits of its delegated legislative power; rather, the legislative authority invoked must result specifically from the provisions that the executive itself has cited. In addition, Article 80 (1) [3] of the Basic Law serves to disclose the scope of authority to the addressee of the regulation. Th is is intended to make it possible for the addressee to check whether the regulation is in accordance with the enabling statute. Article 80 (1) [3] of the Basic Law lays down in that respect a requirement as to form based on the constitutional state principle, which is intended to make it easier to verify whether, in issuing the regulation, the issuer has remained within the scope of the authority conferred. 2. In light of the foregoing, a regulation that is based on several enabling provisions must cite these in full and, where there is overlapping content between several enabling provisions, they must be indicated together. There is no need to indicate in detail for each provision of the regulation the discrete authorizations on which it is based.

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3. The citation requirement, above all, requires the individual provision of the statute, which contains the authority, to be specified. Only in this way can it be ensured that the addressees of a regulation are able to identify its legal bases and verify their observance by the issuer of the regulation. 4. A failure to have regard to the citation requirement violates an “indispensable element of democracy based on the constitutional state principle.” Such a defect, therefore, renders the regulation void. II. 1. The Regulation on Keeping Chickens does not meet these requirements and is therefore void. In its preamble, the challenged regulation mentions as a basis of authority only § 2a (1) in conjunction with § 16b (1) [2] of the Animal Protection Act. Article 2 of the Law of 25 January 1978 ratifying the European Convention of 10 March 1976 on the Protection of Animals Kept for Farming Purposes in conjunction with the Recommendation of the Standing Committee of 21 November 1986 for the keeping of laying-hens of the species Gallus gallus, which, pursuant to Article 9 (3) of the European Convention, has become effective for Germany and must therefore be implemented at the national level, is not mentioned, although the Regulation is also based on it. It is true that neither Article 2 of the ratifying law nor Article 9 of the European Convention stipulates that the Recommendation must be implemented by a regulation having the force of law. On the contrary, Article 16 of the Recommendation leaves it up to each contracting party to implement the Recommendation by whatever method it sees fit. But, in the present case, the Federal Minister for Food, Agriculture, and Forestry also sought, by means of the Regulation on Keeping Chickens, to implement the most important elements of the aforementioned Recommendation. That is undoubtedly clear from the explanatory memorandum attached to the draft Regulation. If, according to the clearly expressed will of the issuer of the regulation, the challenged regulation also had that objective, then, in accordance with the meaning and purpose of Article 80 (1) [3] of the Basic Law, the relevant basis of authority for this had to be specified in the text of the regulation. The issuer of a regulation is not free to specify only one of several enabling provisions on which the regulation is based. The issuer of the regulation does not fully demonstrate legislative authority unless he or she indicates the other enabling provisions. By not doing so, the issuer prevents or makes difficult a review as to whether the limits of his or her power to legislate have been observed. It is not sufficient that the additional enabling provision was specified in the official explanatory memorandum to the Regulation on Keeping Chickens. Disclosure in such documents, the purpose of which is not directly legislative, does not create the publicity required by the constitutional state principle. 2. In contrast, the omission of any reference to § 21a of the Animal Protection Act does not constitute a breach of the citation requirement in Article 80 (1) [3] of the Basic Law. Section 21a of the Animal Protection Act is not, in itself, an enabling provision, for the simple reason that it does not specify any addressees (Article 80 (1) [1] of the Basic Law). Rather, it makes clear only that authorizations conferred elsewhere may also serve to implement legal acts of the European Community.

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Dynamic Interpretation and Legislative Facts. The Kalkar I Case, discussed earlier, implies a more functionalist approach to delegation and separation of powers than does Chicken Regulation. The formalism of the latter, however, is more in keeping with the Court’s early delegation jurisprudence.41 Kalkar I represents a new development in German constitutional law, standing for what might be called a dynamic interpretation of basic rights. Nuclear technology, the Court suggested, is a fast-developing field with life-threatening implications; the legislature has a duty, therefore, to keep abreast of such developments so that it may take whatever mandatory mea sures are necessary to avoid the threat to a basic right. Kalkar I grants to the legislature a certain amount of prognostic leeway (Prognosespielraum) in situations in which it cannot accurately predict the results of a par tic u lar legal regulation. But the legislature must continue to monitor the situation to ensure that the regulation does not threaten vested rights under the Basic Law. The Court’s approach in Kalkar I is one way of reconciling tensions between judicial review and majority rule. While recognizing the political character of legislative fact fi nding and the primacy of the legislature’s competence in given subject areas, Kalkar I holds out the strong possibility of judicial intervention if, in the Court’s independent judgment, newly accumulated facts should seriously challenge the original prognosis. The degree of judicial scrutiny in such cases depends on the particularity with which Parliament examines the factual basis of a regulatory plan of action.42 If this process is exacting, and if Parliament identifies the facts on the basis of which it enacts law, taking care to protect constitutional interests, then the Court will not invalidate the regulatory scheme merely because the legislature did not accurately predict the result of its action. Still, in this situation, in which regulation threatens constitutional interests, the constitutional state principle requires continuing parliamentary vigilance. The seeds of the prognosis doctrine took root in some early equal protection cases. For example, in the Widower’s Pension I Case (1963)43 the Court sustained a provision of the Social Security Act conferring benefits on a widower only if his wife had been primarily responsible for the family’s support, a limitation that did not apply to a widow. Years later, however, married women constituted a significant portion of the labor force, just as they had obtained greater equality under law within the marital relationship. By 1975, when the widower’s provision was once again challenged, the Court instructed the legislature to amend the statute in the light of these changing social conditions.44 Returning to Kalkar I, we see that this decision, like that in the Mülheim-Kärlich Case (1979),45 is a part of the long-running political controversy in Germany over the use of nuclear energy (as discussed in Chapter 3). At times, as the Kalkar II (1990; no. 3.12) and Biblis-A (2002)46 cases show, the battle has taken the form of a federalism dispute. Yet the principles of federalism and separation of powers are intertwined in German constitutional law,47 as Kalkar I and Mülheim-Kärlich demonstrate. These cases chiefly address the separation of powers concerns posed by the federation’s

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regulation of the nuclear energy industry. For example, licensing procedures in the field are complex, requiring a series of permits in the course of a plant’s construction and activation.48 Which governmental institutions are best situated to strike the balance between the required expertise, flexibility, and political accountability in issuing these permits? Governmental officials concerned about the slowness as well as the legitimacy of the nuclear licensing process have advanced proposals ranging from increased legislative participation in the process (even to the point of specifying the details of site planning), on the one hand, to narrowing the scope of judicial review over administrative decisions, on the other hand.49 Both proposals raise separation of powers questions of their own, particularly the latter, since any limitation of judicial review over administrative discretion may confl ict with the right of “any person” under Article 19 (4) to repair to a court of law when his or her rights have been violated by public authority. Kalkar I, though it sustained the delegation in question, nonetheless adheres to the prevailing German skepticism toward delegation by requiring a high threshold of specificity with respect to legislative delegations. And yet, as the Court reminds us in the Judicial Qualification Case featured below, dealing with the delegation of authority at the state level, the doctrine of separated powers requires some elasticity in its application when the three branches of government are spliced together in a system of reciprocal and mutual restraint. What is important, according to the Court, is that the core of each power be preserved from invasion by a coordinate branch. 4.8 Judicial Qualification Case (1972) 34 BVerfGE 52 [An applicant for judicial office must pass two state examinations. The state of Hesse required an examination fee. At the time of the present case, the fee for the second judicial examination amounted to dm 200, the legal basis for which was found in § 42 (1) [3] of the Judicial Training Regulation of 10 September 1965. The Hessian state government issued the Judicial Training Regulation in the form of a legal regulation, declaring § 93 (2) [1] of the Hessian Judiciary Act of 19 October 1962 to be the regulation’s legal basis. With regard to the issuance of legal regulations, § 93 provides that the state government is authorized to issue legal regulations required for the implementation of this law and to issue a judicial training regulation. Th is provision shall regulate the establishment of examination centers, the composition of the board of examiners, examination procedures, and the duration and division of the preparatory ser vice within the framework of § 5 (6) of the German Judiciary Act (a federal statute) as well as matters relating to the repeated failure of applicants to pass the second examination. The complainant passed the second judicial examination in Hesse in 1966. He had paid the required examination fee prior to taking the examination.

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Later he brought suit before the administrative court in Frankfurt am Main, claiming that the examination fee had been demanded without a legal basis. He stated further that § 93 (2) [1] of the Hessian Judiciary Act did not authorize § 42 (1) of the Judicial Training Regulation. Having lost on these claims in the administrative courts, the complainant brought a constitutional complaint to the Federal Constitutional Court arguing that uncertainty regarding the legal basis of the Hessian regulations constituted a violation of Article 28 (1) of the Basic Law. Article 28 (1) guarantees that the state governments conform to fundamental federal constitutional principles and values, including separation of powers. The Constitutional Court found no constitutional violation.]

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Judgment of the Second Senate. . . . B. II. 2. As was determined by the decision of the Hessian State Constitutional Court from 4 December 1968, § 93 (2) of the Hessian Judiciary Act (HJA) is consistent with Articles 107 and 118 of the Hessian Constitution. Therefore, § 93 (2) [1] of the HJA does not violate the principle of separation of powers, just as these Hessian constitutional provisions do not violate the principle of the separation of powers that the states must observe pursuant to Article 28 (1) [1] of the Basic Law. A state legislature can give this constitutional principle, which binds the states, concrete expression in its constitution in various ways. Article 80 (1) [2] represents only one of these possibilities; it applies only to the domain of federal legislation. Articles 107 and 118 of the Hessian Constitution contain a different way of concretizing this mandate, which, at least as interpreted by the Hessian State Constitutional Court, also satisfies this constitutional principle. a. The separation of powers is a fundamental constitutional principle for the organization and function of the state. The Basic Law provides for a distribution of political power, the harmonious cooperation of the three branches, and the moderation of political rule that results from it. The principle of separation of powers is not, however, realized in pure form in the federal arena. Numerous interconnections and balances of power exist. It is not an absolute separation of powers that we must glean from the constitutional design of the Basic Law but, rather, a system of mutual control, restraint, and moderation. Even if the separation of powers cannot be understood as meaning a clear-cut separation of the functions of political power, we must retain the distribution of weight among the three powers as outlined by the constitution. No branch may achieve predominance over another power that was not intended by the constitution. Nor may one branch deprive another of the authority needed to fulfi ll its constitutional tasks. The core functions of the different governmental branches cannot be altered. Th is precludes one of the powers from relinquishing tasks which—according to the constitution—are typically within its purview.

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The following considerations apply to the relationship between the legislature and the executive. In a free democratic and constitutional system, Parliament has the constitutional task of enacting laws. Only Parliament possesses the democratic legitimacy to make fundamental political decisions. To be sure, the Basic Law approves—as illustrated by Article 80—of “delegated” legislation to be enacted by the executive. But the executive can legislate only within limits that are prescribed by the legislature. Parliament cannot neglect its responsibility as a legislative body by delegating part of its legislative authority to the executive without beforehand reflecting upon and determining the limitations of these delegated powers. If the legislature does not satisfy this requirement, then it will shift unfavorably the balance of powers presupposed by the Basic Law in the area of legislation. A total delegation of legislative power to the executive branch violates the principle of the separation of powers. b. We also derive this conclusion from the constitutional state principle insofar as it requires that citizens be sufficiently able to evaluate the content of a regulation based on statutory authority. To the extent that a statute delegates the authority to issue regulations to the executive, the legislative intent must provide . . . a guide for the content of the regulation. The statute must give expression to the legislative intent. It must be clear whether or not the executive confi ned itself to the express limits of the delegating statute in issuing the regulation. If the content of the regulation goes beyond the legislative intent, then the issuer of the regulation has overstepped the boundaries of its delegated power. The regulation is then invalid because it has an insufficient legal basis. It is not within the Court’s authority to decide this case, which falls within the procedural provisions of Article 100 (1). But it is within this Court’s authority to decide if the statutory delegation is compatible with the aforementioned principles. c. Section 93 (2) [1] of the Hessian Judiciary Act does not transgress the boundaries established by the principle of separation of powers and the constitutional state principle for delegating the authority to issue regulations. The legislature did not relinquish its inalienable duty and responsibility. Section 93 (2) [1] preserves the fundamental priority of the legislative intent. Th is intent, which should serve as a guiding principle for the issuance of a regulation, is clearly recognizable. Section 93 (2) [1] of the Hessian Judiciary Act only grants the issuer of the regulation supplementary authority to set norms. Th is section does not contain a delegation of authority that is devoid of all content. The subject of the legal regulation to be issued by the state government is “judicial training.” The German Judiciary Act and the Hessian Judiciary Act provide an initial framework for the issuer of a regulation. The Hessian legislature particularly emphasizes examination procedures. Moreover, it is not regulating this subject matter for the first time. The legal basis for the regulatory authority over judicial training is itself tied to the existing norms concerning training regulations that were enacted on 27 November 1957. If an authorization refers to an area governed by prior regulations, then the legislature is clearly stating that the existing principles are to guide the regulating entity in issuing its rules. The legislature does not preclude any change; however, it does expect the issuer of the regulation not to depart from concepts established by the

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earlier regulations for no reason at all. Section 93 (2) [1] of the Hessian Judiciary Act is therefore not written in such general terms that it would be impossible for the executive meaningfully to comprehend the legislature’s concept for this statute. Charging fees for special administrative ser vices has long been a part of government activity. The principles of defraying expenses and proportionality are corrective guides for the issuer of the regulation. The legislature may assume that the regulating body will observe these principles. Thus, the fact that § 93 (2) [1] of the Hessian Judiciary Act does not expressly provide exact figures for a fee schedule does not jeopardize the fundamental separation of powers and legislative independence vis-à-vis the regulating executive. The fee stated in the regulation is clearly within the general limitations discussed above.

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foreign and military affairs Just as the U.S. Constitution allocates power over foreign affairs to both president and Congress, the Basic Law apportions shares of this power to the executive and the Parliament. The Basic Law, however, incorporates a more complex system of checks and balances in the field of foreign relations as well as more detailed provisions on foreign and military affairs than does the U.S. Constitution. Two fundamental points must be noted about the Basic Law’s allocation of power in these fields. First, Germany’s foreign affairs power is concentrated at the federal level. Article 73 (1) [1] of the Basic Law confers on the federation exclusive legislative authority over “foreign affairs.” In addition, Article 87 (1) empowers the federation to establish foreign and consular offices, just as Article 32 (1) authorizes it to conduct “relations with other states.” Article 32 (3), however, qualifies this exclusivity; it permits the Länder, with the federal government’s consent, to conclude treaties with foreign states in policy areas over which the Länder have exclusive jurisdiction. As the Court noted in the Concordat Case (1957; no. 3.8), the federal government’s treatymaking power may be limited to the extent that it invades these reserved powers. The federation nevertheless has primary responsibility over the broad field of foreign affairs. Second, as the following survey reveals, the Federal Constitutional Court plays a decisive role in defi ning the nature, scope, and limits of executive and legislative authority over foreign and military affairs. In these fields, although speaking often and assuredly, the Court largely employs the language of restraint. The Constitutional Court nevertheless serves as an important referee in keeping the executive and the Parliament within the boundaries of their rightful powers. What is most striking from an American perspective, however, is the Court’s deep involvement in monitoring military policy, as several cases in this section show. Distribution of the Foreign Affairs Powers. The foreign relations power falls mainly into the domain of executive responsibility. Executive authority, however, is divided between the chancellor and the president. Under Article 59 (1), the president concludes treaties, receives envoys, and represents the federation in its international relations. But

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these roles are largely ceremonial. Effective power resides in the hands of the chancellor. According to Article 63 of the Basic Law, he or she determines general policy guidelines, although in Germany’s parliamentary system the chancellor shares this power with the cabinet. Indeed, the procedural rules promulgated under Article 65 of the Basic Law require the chancellor to submit foreign policy matters of general importance to the cabinet for debate and decision, but any decision taken in this field falls within the scope of the chancellor’s general policy guidelines. Parliament also is deeply involved in the process of making foreign policy. For one thing, the executive and Parliament are far less distant from one another than in the United States. Germany’s top executive officials—the chancellor and cabinet ministers—usually also are parliamentarians. Unlike his or her cabinet ministers, however, the chancellor answers to and can be removed by Parliament, subject of course to the requirements of Articles 67 and 68.50 In addition, Parliament has extensive supervisory authority over foreign relations. The Basic Law provides for the establishment of parliamentary committees on foreign affairs and defense (Article 45a of the Basic Law) before which federal ministers may be compelled to appear. The Basic Law also establishes the parliamentary commissioner for the armed forces (Article 45b of the Basic Law), who has the responsibility “to safeguard basic rights and . . . to assist the Bundestag in exercising parliamentary control over the Armed Forces.” There also is a standing Bundestag Committee on the Eu ropean Union (Article 45 of the Basic Law). Under Article 44, fi nally, the Bundestag is obligated to form committees of inquiry into any policy matter—domestic or foreign—at the request of one-quarter of its members. As this brief summary suggests, the Basic Law incorporates a degree of executive accountability in foreign policy that is as high as any likely to be found among the world’s constitutional democracies. Executive Discretion, Parliamentary Consent, and the Treaty-Making Power. What is the constitutional process by which Germany becomes committed to international agreements in the fi rst place? Article 59 (2) of the Basic Law provides: “Treaties that regulate the political relations of the federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law.” Th ree constitutional issues have arisen based on this language. First, there have been a number of cases focused on determining whether a par ticular international agreement constitutes a “treaty that regulates the political relations” of Germany and thus requires parliamentary oversight. Second, the Court has also been asked to determine whether executive actions, taken on the basis of a “political” treaty and its required legislation, exceed the scope of the authority created by those instruments. A final issue of considerable importance is the question of the judiciary’s supervisory competence in these matters. The Petersberg Case (1952) and the Commercial Treaty Case were the first to impugn the executive’s refusal to seek parliamentary approval of a treaty. Petersberg involved an executive agreement between the Adenauer government and the high commissioners of the three Allied Powers. The treaty provided the new West German government

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more freedom to manage its own affairs and to explore ways to bring Germany into a European Economic Community. Social Democratic members of the Bundestag petitioned the Constitutional Court, claiming that the agreement was a treaty within the meaning of Article 59 (2) and thus invalid without Parliament’s approval. The Petersberg decision was significant, fi rst, because the Court granted a minority parliamentary party standing to assert its right as a constituent unit of the Bundestag and, second, because it defi ned a treaty within the meaning of Article 59 (2) as an agreement concluded with a foreign state or an international agency of equal rank. The Allied High Commission was regarded as less than that. The Commission did not represent the three Allied governments as such but rather constituted an independent organ of governance on German territory. Moreover, declared the Court, the Basic Law is “the constitution of a sovereign state” and points toward Germany’s “equal standing in the community of nations.” Unlike a treaty as envisioned by Article 59 (2), the Court reasoned, the Petersberg Agreement was the product of negotiations between unequal parties because Germany was clearly in a position subordinate to the occupying owers.51 As the text of Article 59 (2) makes clear, Parliament plays a crucial role in the treatymaking process, but that role is confi ned to two kinds of treaties: those that regulate Germany’s “political” relations and those “relat[ed] to subjects of federal legislation.” Treaties or agreements not falling into one of these two categories may presumably be concluded at the discretion of the executive. But what constitutes a treaty that regulates the nation’s “political relations” or touches on federal legislation, thus requiring legislative branch approval? These issues arose early on in the following judgment. 4.9 Commercial Treaty Case (1952) 1 BVerfGE 372 [The Paris Trade Agreement of 1950 between Germany and France removed trade restrictions on goods produced in the two countries, established currency exchange regulations, imposed quotas on certain products, and laid down conditions for the issuance of import and export licenses. The spd, led by Kurt Schumacher, objected to the government’s failure to seek the consent of the Bundestag. The main constitutional issue before the Court was whether a commercial treaty, altering the basic trade and fi nancial relations between the Federal Republic and another state, is a “political” treaty within the meaning of Article 59 (2). The Court concluded that it was not.]

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Judgment of the Second Senate. . . . C. I. 1. A treaty does not become a political treaty within the meaning of Article 59 (2) of the Basic Law merely because it deals quite generally with public affairs, the good of the community, or affairs of state. If this were so, every treaty would be a political

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treaty, and the limitation contained in Article 59 (2) would be devoid of meaning. In addition to the conditions just mentioned, a treaty must also directly affect the existence of the state, its territorial integrity, its independence, and its position or relative weight within the community of states. Political treaties in this sense are those directed at asserting, securing, or expanding one state’s position of strength vis-à-vis other states. They include treaties relating to alliances and guarantees; agreements on political cooperation; nonaggression pacts; treaties on peace, neutrality, disarmament, and arbitration; and similar international agreements. The history of Article 59 (2) permits an interpretation that does justice to constantly changing conditions. In contrast to Article 45 of the Weimar Constitution, the Basic Law has adopted broader language so as to enlarge the category of treaties, beyond alliances, that require the approval of Parliament. . . . Article 59 (2) of the Basic Law requires the participation of the legislative bodies only for those treaties that regulate the political relations of the federation. “Political relations” must substantially and directly affect the existence of the state, its position and weight within the community of states, or the order of the community of states. The content or purpose of a treaty within the meaning of Article 59 (2) must be directed at the regulation of the political relations with foreign states. The treaty itself must regulate or purport to regulate the political relations with foreign states; it is insufficient when the treaty has merely a secondary, perhaps even unintentional or unexpected effect on such relations. Even though a treaty may be of political significance for the Federal Republic—for example, it may have an important bearing on the internal political, economic, or social circumstances of the country—that does not make it a “political treaty” within the meaning of Article 59 (2) of the Basic Law. The traditional teachings of public international law generally did not regard commercial treaties as political treaties. Th is theory, however, does not in its generality correspond to the reality of present-day international relations. In special circumstances a commercial treaty may have a political character like that of a treaty of alliance; for example, where the contracting parties, by concluding a commercial treaty, intend to strengthen their economic position in competition with other states generally. In such a case, nonpolitical market relations may become power relations. Today the conclusion of a commercial treaty may possibly have more influence on a state’s position of strength within the community of states than the conclusion of a treaty of neutrality, a nonaggression pact, or a treaty of guarantee. In referring to power in this context, we do not confine ourselves to the position of states in the struggle for political hegemony; we refer generally to their relative weight within the community of states. Whether a treaty is political in the above-mentioned sense can be determined only in the individual case by reference to the special circumstances and the actual political situation of the Federal Republic and the other contracting parties. [The Court embarked on a detailed examination of the treaty’s provisions, fi nding that they were short-term measures for liberalizing trade and were not designed to fi x West Germany’s political position relative to other states. The

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Court added that, in any event, the Federal Republic of Germany, still subject to the occupying powers with regard to certain foreign policy matters, was not at that time in a position to make political decisions. It stressed more particularly that the treaty did not contain any provision indicating a desire on the part of the Federal Republic to support European integration or to acknowledge that the Saarland Territory was no longer part of Germany. The Court thus denied the political character of the treaty.] 3. In a parliamentary democracy, legislation is basically reserved for Parliament, with government and administration being assigned to the executive branch. Foreign and trade policy also belong to the executive branch. According to Article 65 of the Basic Law, the federal chancellor determines, and is responsible for, general policy guidelines. Within the limits set by these guidelines, each federal minister conducts the affairs of his or her department autonomously and on his or her own responsibility. There is a legal presumption in favor of the exclusivity of these expressly constituted competences of government. The Bundestag may not assume these functions unless expressly permitted to do so. The legislature’s sharing of this exceptional authority of the executive has been established by Article 59 (2) of the Basic Law within highly specified limits. . . . Above and beyond the two instances in which Parliament participates in the treaty-making process, Article 59 (2) has not given the Bundestag a right to intervene in the government’s zone of responsibility. Its role remains limited to the general constitutional powers of supervision. Rather than governing and administering in this field, the Bundestag controls the government. Should it disapprove of the latter’s policies, it is empowered to express its lack of confidence in the chancellor (Article 67 of the Basic Law) and bring down the government. But it is not able to conduct policy making of its own accord. [When does a treaty relate to federal legislation, thus requiring parliamentary approval in the form of a law? In answering this query the Court noted that the Basic Law’s list of enumerated powers conferred on the federation is not controlling. For example, the fact that money, coinage, and customs fall within the scope of federal legislation does not mean that a treaty related to these matters requires legislative approval. Rather, said the Court, parliamentary participation is necessary “when the federation assumes obligations that can be fulfi lled only through the enactment of a federal law.” In such a case parliamentary approval is necessary to give democratic legitimacy to a policy requiring domestic application. In the instant case, however, the executive was able to implement the commercial treaty without legislative participation. Moreover, Parliament was disempowered from acting in this instance because the powers reserved by the occupation authority precluded any internal legislation on the trade and foreign exchange provisions of the treaty. In the conclusion of its opinion the Court underscored the federal government’s primacy in the field of foreign relations.]

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NATO Strategic Concept Case. Nearly half a century after issuing its decision in Commercial Treaty, the Court was again asked to consider the meaning of Article 59 (2) in the nato Strategic Concept Case (2001).52 The Bundestag representatives of the Party of Democratic Socialism (pds), the postreunification successor to the East German Socialist Unity Party (sed), complained that the Schröder government’s assent to nato’s new Strategic Concept committed Germany to such a radically altered set of obligations under the nato regime that the document could be characterized as nothing other than a fundamental amendment of the nato Treaty ratified by Germany in 1955. Endorsed by the nato Heads of State and Government at the April 1999 celebration of the alliance’s fi ft ieth anniversary, the pds parliamentarians were particularly concerned with the new Strategic Concept’s abandonment of nato’s regional defense orientation and its embrace of a proactive, out-of-area role in crisis response situations for nato. Their concerns were underscored by the fact that nato’s bombing campaign against Serbia and Montenegro on behalf of the persecuted Kosovar Albanian minority was a month old at the time the new Strategic Concept was announced in Washington, D.C. The Kosovo campaign was widely viewed as a prototype of the expanded role proposed for nato by the new Strategic Concept. Notably, nato’s use of force had been undertaken in the absence of un Security Council approval. In the face of all this, the pds parliamentarians argued that the significant change to the nato Treaty, like Germany’s commitment to the nato Treaty in the fi rst instance, should have been submitted to the Bundestag for consent under the terms of Article 59 (2) of the Basic Law. The decision in the pds case turned, in part, on the Second Senate’s characterization of the new Strategic Concept as a “consensus paper” and a “further development and concretization” of the nato Treaty, as opposed to an amendment of the existing nato Treaty, which would have required parliamentary consent. “Article 59 (2) [1] of the Basic Law,” the Court explained, “is not accessible to an expansive interpretation.” Thus, the Court upheld the Schröder government’s endorsement of the Strategic Concept in the absence of parliamentary approval.53 In doing so the Court appeared to be at ease with an incremental shift , favoring the executive, in the balance of power between the government and the Bundestag in matters of foreign affairs.54 Other democracies have been more inclined to favor the executive on a broad range of issues, especially in the aftermath of the 11 September 2001 terrorist attacks in the United States. 55 Constitutional courts have generally adhered to the view that the principle of separation of powers does not require parliamentary oversight of the details of foreign policy making.56 The Federal Constitutional Court has taken a similar view. As the Court explained in nato Strategic Concept: The concretization of the [nato] Treaty, as well as the concretization of the integration program that was laid down together with the [t]reaty, is the task of the federal government. With reference to the traditional concept of the state in the sphere of

Separ ation of Powers 195 foreign policy, the Basic Law has granted the government a wide scope for performing its task in a directly responsible manner. If only for reasons of the adequate distribution of functions, the role of the Parliament (as legislative body) and of the judiciary in this field are restricted. Certainly, the authority concerning foreign affairs that is entrusted to the federal government in this respect is not beyond parliamentary control, and it is, like all exercise of public authority, subject to the obligations set forth in the Basic Law. But an expansive interpretation of Article 59 (2) [1] of the Basic Law, which includes the participation of the federal government in non formal further developments of the treaty basis of a system of mutual collective security, would not only result in legal uncertainty and would call the steering effect of the Consent Act into question; it would also reduce the federal government’s capability of acting in the field of foreign and security policy in an unjustified manner; moreover, it would result in a separation of state power that would not do justice to the functions of the executive and the legislative power.57

Atomic Weapons Deployment Case. In the Atomic Weapons Deployment Case (1984) the Green Party parliamentary representatives sought to vindicate the rightful powers of the Bundestag under the treaty-making provision of Article 59 (2). The Green Party maintained that by agreeing to install nuclear-equipped American intermediate missiles on German soil in the absence of statutory authority to do so, the federal government “indirectly infringed the rights of the Bundestag.”58 In response, the Court noted that an executive action, taken in conformity with existing treaty obligations—here the nato Treaty—requires no new legislation under Article 59 (2). The challenged action would have survived constitutional analysis even if it had been taken outside the treaty framework because the assent granted here would have been classified neither as a “political treaty” nor as a “matter of federal legislation” under Article 59 (2) of the Basic Law. The Court sought to clarify its understanding of Article 59 (2) as it relates to the principle of separated powers: Article 59 (2) of the Basic Law . . . allows the Bundestag some powers of participation in the making of foreign policy. . . . Yet Article 59 (2) confi nes this participation to the two situations already mentioned: “political relations” or “subjects of federal legislation”. . . . Thus, with respect to Article 59 (2), the Bundestag can neither compel the federal government to refrain from, embark upon, or break off treaty negotiations or produce treaty draft s of a par ticu lar content, nor prevent it from doing so; nor can it force the executive to conclude a treaty that requires parliamentary consent under Article 59 (2) or force the executive to terminate a treaty in international law. . . . The Basic Law does not confer on the Parliament any power to initiate foreign policy or to control its administration. Nor can the provision be taken to mean that, whenever an act of the federal government in international transactions regulates the political relationships of the Federal Republic of Germany or affects objects of federal legislation, the form of a treaty requiring legislative assent must be chosen, as the petitioner thinks.

196 chapter four Th is strict demarcation of the powers allowed the legislative bodies under Article 59 (2) of the Basic Law is an element in the separation of powers set up by the Basic Law. . . . But the concentration of political power, which would lie in assigning the Bundestag central decision-making powers of an executive nature in foreign affairs beyond those assigned to it in the Basic Law, would run counter to that structure of apportioning power, responsibility, and control laid down at present by the Basic Law. Th is is in no way changed by the fact that, at the federal level, only Bundestag members are directly elected by the people. The specific order of the apportionment and balancing of state power that the Basic Law wishes to see guaranteed must not be undermined by a monism of powers falsely derived from the democracy principle in the form of an all-embracing reservation on behalf of Parliament. Again, the principle of parliamentary responsibility for the government necessarily presupposes a core area of the executive’s responsibility. The democracy constituted by the Basic Law is a democracy under the constitutional state principle, and this means, in relation to the mutual relations of the organs of state, above all a democracy with separation of powers.59

Judicial Restraint in Foreign Affairs. As nato Strategic Concept and Atomic Weapons Deployment demonstrate, all questions arising under the Basic Law—even highly politicized matters of foreign affairs—are amenable to judicial resolution if properly initiated under one of the various procedures authorized for the adjudication of constitutional issues. The Federal Constitutional Court cannot avoid a decision by taking cover under an American-style political question doctrine.60 If no jurisdictional issue disqualifies the Court from hearing a case on its merits, then it must decide. In doing so, however, the Court often defers to the federation’s political judgment so long as that judgment remains within the boundaries of legitimate discretion. Occasionally, however, the Court will sustain a foreign policy decision of the political branches but at the same time lay down rather stringent rules for carry ing it out. A particularly dramatic example of this last situation—where judicial activism and restraint combined in an interesting mix—involved the Basic Treaty between East Germany and West Germany. In the early 1970s the West German government, controlled at the time by the spd in coalition with the fdp, sought to “normalize” the relationship between the two German states and between West Germany, the Soviet Union, and other Eastern Eu ropean nations. The Basic Treaty was the capstone of Chancellor Willy Brandt’s eastern policy (Ostpolitik). Under the treaty, West Germany and East Germany agreed to respect each other’s right to selfdetermination, “to refrain from the threat or use of force,” to improve trade relations, to cooperate in various cultural and technological fields, and to desist from any claim to represent the other in the international arena. By any standard the treaty qualified as the most crucial step taken by the two German states up to that point in the postwar era. Parliament had barely consented to the treaty when Bavaria petitioned the Court for its nullification in an abstract judicial review proceeding. Bavaria argued that the treaty contravened the Basic Law’s “precept of reunification”—the constitutional commitment

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to pursuing national unity. In response, the Court sustained the constitutionality of the treaty, declaring that flexibility and discretion were essential in meeting constitutional goals, particularly in the area of foreign policy.61 Yet, to the chagrin of the ruling coalition, the Court used the case to make wide-ranging pronouncements on the nature of the West German state and the principle of reunification. These facets of the East-West Basic Treaty Case (1973; no. 6.1) are discussed more extensively in Chapter 6. The Court’s meddling in the East-West Basic Treaty Case left no doubt that its word would be the last, even in the sensitive area of international diplomacy. In fact, the Court rebuked the federal government for trying to “outmaneuver” the First Senate, before which the case was pending, by attempting to ratify the treaty before the senate had rendered its decision. With respect to national unity, the Court declared that the goal of reunification, stated in the Preamble to the Basic Law, is legally binding on “all constitutional organs,” each of which is “required to keep the claim of reunification alive domestically, to vigorously push it in foreign relations, and to refrain from any activity that would undermine the goal of reunification.” The East-West Basic Treaty Case is reminiscent of the U.S. Supreme Court decision in Marbury v. Madison (1803)62 in one respect: It handed the government a crucial victory but qualified that victory with a lecture on the constitutional state principle and warnings about exceeding the limits of executive discretion. The Rudolf Hess Case (1980) is an equally prominent example of this mix of judicial activism and restraint.63 Hess’s son fi led a constitutional complaint in 1980 charging the federal government with failure to take the steps necessary for securing the release of his father from the Berlin-Spandau Military Prison where he had been incarcerated, alone, since 1967. (Hess had been sentenced to life imprisonment in 1945 by the Nüremberg War Crimes Tribunal.) The complaint charged that the federal government’s reluctance to undertake negotiations with the Allied governments for the purpose of liberating Hess from his isolated imprisonment violated several provisions of the Basic Law (including the right to human dignity) and the European Convention on Human Rights. The Court accepted the complaint, implying that it was justiciable, but proceeded to write an opinion in which some scholars have found the seeds of a political question doctrine.64 Hess underscores the broad discretion enjoyed by governmental organs in dealing with political matters: “The breadth of this discretion in foreign affairs has its basis in the nature of foreign relations,” said the Second Senate. “Such events are not governed solely by the will of the federation,” the Court continued, “but rather are dependent on many circumstances over which it has little control. In order to facilitate the realization of the federation’s political goals within the framework of what is constitutionally permissible . . . the constitution confers considerable discretion on foreign affairs agencies in assessing the practicality and feasibility of certain policies or actions.” 65 The First Senate reached a similar conclusion in the Schleyer Kidnapping Case (1977; no. 7.6). Whether the federation should negotiate for the release of a hostage out of respect for the right to life secured by Article 2 (2) of the Basic Law or

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resort to other actions in dealing with terrorists is a matter wholly within the discretion of the politically responsible organs of government.66 In mapping the boundaries of the deference it would show to the federation’s political organs, the Arms Deployment Case, featured below, employed language similar to that used by the U.S. Supreme Court in defi ning the political question doctrine.67 4.10 Arms Deployment Case (1983) 66 BVerfGE 39 [In 1983 several people fi led constitutional complaints against the deployment of nuclear warheads on the West German territory. Th is deployment was to be undertaken in accordance with a decision of the foreign and defense ministers of nato’s member states. On 22 November 1983 the Bundestag passed a resolution supporting the federal government’s decision. The gravamen of the complaint was that the missiles would endanger the life and health of the complainants in violation of Article 2 (2) of the Basic Law. The complainants also advanced a separation of powers argument. Article 2 (2) provides that the right to life and personal inviolability “may be encroached upon only pursuant to a law.” The Parliament’s failure to support deployment in the form of a statute, they argued, violated this provision. The Court ruled that the complaints were inadmissible.]

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Judgment of the Second Senate. . . . A. II. 5. . . . The complainants base their constitutional complaints on the following arguments: The quality of the new weapons and their deployment on European territory near the Soviet Union change the political-strategic constellation of chances and risks in favor of the United States of America. There are several possible Soviet reactions to this, each of which brings with it the risk of a destructive strike by the Soviet Union against Pershing II and Cruise missile sites. Deploying these weapons, therefore, endangers the Federal Republic’s population. In addition, the Soviet Union has announced the installation of a computer-controlled responsive-strike system that may give rise to the use of nuclear weapons in the case of even limited military operations by the member states of nato. The possibility also cannot be precluded that an atomic attack may be brought about by a technical failure in this system. Deploying Pershing II and Cruise missiles is therefore incompatible with the state’s duty to protect life pursuant to Article 2 (2) [1] of the Basic Law. The constitution’s decision to provide for national defense does not authorize the impending destruction of the Federal Republic’s entire population—or significant portions of it. It is true that the competent government authorities have the basic responsibility to decide how to fulfi ll their duty to protect life, arising under Article 2 (2) [1] of the Basic Law. But they cannot justify the installation of new weapons as a measure to protect life. The deployment of new weapons is also an inappropriate defensive measure because it neither

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averts a Soviet attack with ss-20 missiles nor permits a fi rst strike aimed at disarmament. The new weapons have no defensive value for the Federal Republic because the Federal Republic has no control over their use. If the federal government believes it must modernize its weapons, it can choose the less dangerous alternative of deploying new weapons at sea. [Complainants raised several arguments: 1) the Basic Law permits defensive weapons only; 2) Pershing II and Cruise missiles are not necessary for the defense of the Federal Republic; 3) the missiles are more dangerous than alternative means of defense (e.g., sea-based missiles); 4) American control of the weapons violates German sovereignty; and 5) deployment violates the Federal Republic’s duties under international law.] C. . . . The constitutional complaints are inadmissible. 1. To the extent that the complainants can be interpreted as assailing the conduct of non-German public power in connection with the deployment of Pershing II and Cruise missiles, their constitutional complaint is inadmissible. It is true that the protected sphere of human rights, including the basic rights and freedoms recognized in the Basic Law, applies against every form of sovereign power. Nevertheless, under Article 93 (1) [4a] of the Basic Law and § 90 of the Federal Constitutional Court Act, the remedy of a constitutional complaint can be brought only against actions of the German state. 2. To the extent that they attack conduct attributable to German sovereign power, it follows neither from the complainants’ allegations nor from other circumstances that German state action caused the asserted threat and therefore would fall within the realm of protected basic rights claimed to have been injured by an act of the German state. . . . Even accepting the complainants’ premise that deploying Pershing II and Cruise missiles increases the danger of a Soviet nuclear attack against targets in the Federal Republic, and therefore the risk to legal rights protected by Article 2 (2) of the Basic Law, it is still questionable whether the asserted violation of complainants’ life and limb by German sovereign power rises to the level of a real danger under the Basic Law. In those cases where the Court has issued an opinion on the degree of intervention necessary to endanger basic rights, it was possible to make statements about the probability that the asserted dangers would actually occur with a degree of certainty. In those cases the essential sources of risk were susceptible to investigation by scientific methods, even if such methods were naturally conditioned upon and limited by the state and type of knowledge at the time. In the present case, on the contrary, no suitable, reliable process exists by which the judge might ascertain the increased degree of danger to complainants’ life and limb. For, in dealing with the ultimate source of this danger, we are dealing with the decisions of a foreign sovereign state in the context of the general world political situation and changing political and military relations. Under the prevailing circumstances we cannot make judicially verifiable fi ndings concerning such decisions in advance. Moreover, the possible violation of

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basic rights asserted in this case does not fall within the protective purview of these rights, since basic rights are aimed at German state action; this, however, is the action complainants have attacked. b. . . . Because we lack legally manageable criteria for deciding this case, the Court cannot determine whether or not the German state action challenged by complainants has any influence on decisions of the Soviet Union that may or may not trigger the military measures (a preventive or responsive nuclear strike) complainants fear. The federal organs responsible for the foreign and defense policy of the Federal Republic must make such evaluations. Within the intended goals of the Basic Law, especially as they have been expressed in the present context in Article 1 (2) and Article 24 (2), and within the scope of what is permissible under international law, the constitutional authority of these organs for foreign and defense policy includes the authority to defend the Federal Republic effectively. It is within their political decision-making power and responsibility to decide what measures promise success. To the extent that unpredictable areas of risk remain, as will often be the case, the political body constitutionally responsible for the decision must include these considerations in their deliberations and assume political responsibility. It is not the function of the Court to substitute its opinions for the opinions and deliberations of the competent political branch of the federation over and above standard legal handicaps in this area. Th is applies equally for the question of how the state should fulfi ll its affi rmative legal duty to protect basic rights in the sphere of foreign policy and defense matters vis-à-vis foreign states. In the light of the fact that the dangerous situation the complainants presume to exist depends significantly on the political decision of a foreign sovereign state in the context of the global political situation, the Court has no legally manageable criteria for judging whether the German state action being challenged is the decisive factor in the creation of this situation, or whether it is at least contributory and therefore causal. It is quite possible that the danger of a Soviet nuclear attack, as the complainants fear, already existed before the federal government agreed to deploy the missiles, or will come into being independent of the deployment. Nor do we have legally manageable standards to judge whether one may correctly say, based on empirical knowledge, that the creation of the danger of a Soviet nuclear attack represents a change of existing circumstances “legally” connected to the conduct that complainants censure. . . . D. Th is decision is issued unanimously as to the result, with one vote dissenting as to the grounds of the judgment.

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Military Affairs Power. The framers of the Basic Law insisted on a “peace constitution.” The preamble declares that, in promulgating a new constitution, the Germans were “inspired by the determination to promote world peace as an equal partner in a united Eu rope.” 68 Further evidence of the Basic Law’s commitment to peace can be found in Article 1 (2), which provides that “the German people . . . acknowledge

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inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” 69 In addition, Article 9 (2) permits the prohibition of associations whose aims or activities are directed “against . . . the concept of international understanding, . . .”70 Article 26 (1), fi nally, renders unconstitutional and obligates the German government to criminalize “acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression.”71 To be sure, there are competing clauses that might be interpreted as a “hint” that German rearmament was inevitable.72 But the Constitutional Court did not get the chance to choose between the interpretive possibilities of the original Basic Law. Chancellor Konrad Adenauer’s earliest attempt to rearm West Germany was cut short when France withdrew from plans to create a Eu ropean Defense Community, thereby rendering moot the case before the Constitutional Court that raised these fundamental constitutional questions about Germany’s security profi le.73 The peace-oriented provisions of the Basic Law soon were overshadowed by constitutional amendments pushed through by Adenauer’s supermajority government in 1954. These amendments, particularly implicating Article 79 (1) of the Basic Law, paved the way to West Germany’s nato membership and remilitarization.74 Yet the constitutional reform that facilitated Germany’s rearmament did just as much to entrench Germany’s postwar reticence about the use of force. Article 87a of the Basic Law, for example, provided that the newly formed federal armed forces were empowered to defend Germany and otherwise could be deployed “only to the extent expressly permitted by this Basic Law.”75 Thus, even as Germany rearmed and integrated into the Western security framework, constitutional law—and the Constitutional Court as the Basic Law’s authoritative interpreter—would dictate and define the function of the armed forces. Th rough the long years of the Cold War a number of social and political factors conspired to cement the consensus that the German armed forces were to be used exclusively for the purpose of defending nato territory. Surely the ever-present memories of German atrocities and suffering in World War II hardened the Basic Law’s peace orientation, largely realized by this defense consensus. In any case, the zero-sum implications of armed confrontation along the hot German front of the Cold War made it a logical imperative that “for over forty years, the [leadership of the Federal Republic of Germany] interpreted the Basic Law to mean that German military forces could only be used for defensive purposes on North Atlantic Treaty Organization (nato) territory.”76 Considering the Cold War stalemate in Europe, this was as good as saying the German armed forces might never be deployed. AWACS I Case. Few areas of constitutional law and public policy saw such dramatic change after German reunification. Beginning with the awacs I Case (1994), in which the Court considered the meaning of Articles 87a (2), 59 (2), and 24 (2) of the Basic Law, Germany embarked on a decade-long process of radically reconceptualizing the constitutional limits on the use of its armed forces. Th is reconceptualization was

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the product of several forces. First, it was an attempt to facilitate the greater geopolitical role Germany desired for itself, and would be expected to carry following reunification. Second, it was urged along by the strategic vacuum that briefly opened up at the end of the Cold War, fleetingly creating the illusion that armed force might be used in the “new world order” only for the purpose of promoting and maintaining peace under the auspices of the United Nations. Th ird, when the center-left parties (spd and Green) came to power near the end of the 1990s, the reconceptualization of the use of the armed forces was aided by their surprising abandonment of the obstructionist pacifism they had long advocated while in opposition. In short, throughout the 1990s Germany was seeking a more “normal” role for itself in the post–Cold War world. As Georg Nolte explained: “[T]he deeper issue was the self-conception of a newly reunified Germany—that is, which lessons the country would draw from its Nazi past and what future role it should play within Europe and in the world.”77 At the end of the 1980s, against the backdrop of international pressures to involve German military units in efforts to establish peace in the Persian Gulf, German political leaders still were virtually unanimous in maintaining that the Basic Law ruled out any use of the armed forces except for the purpose of defense and within the framework of the alliances covered by nato and weu (Western European Union) treaties.78 Foreign Minister Hans-Dieter Genscher (who served successive cdu/ csu-led governments from 1974 to 1992), for example, held insistently to the view that the Basic Law barred the use of German troops outside the nato-weu area, even for peacekeeping purposes. In 1990, however, supported by cogent scholarly commentary and in the face of unified Germany’s increased international influence, the consensus among political leaders against the nondefensive use of military force began to break down. A major confl ict erupted in the early 1990s when Chancellor Helmut Kohl’s government decided to deploy military forces in connection with the international community’s response to the spiraling violence and political disintegration in Yugoslavia. The confl ict developed into one of the most important chapters in postwar German constitutional politics, featuring legal warfare between the executive and Parliament reminiscent of clashes in the United States between the president and Congress over the extent of their respective authority in military affairs.79 The major difference between the German and American experiences, however, has been the willingness of the Constitutional Court to intervene in such confl icts. An example of this judicial role in the field of military affairs, awacs I, involved Organstreit challenges brought by minority party blocs in the Parliament against the federal government’s decision to order the participation of German military units in the following military operations: nato’s monitoring of compliance with the un embargo against Serbia and Montenegro; enforcement of a un resolution establishing a “no-fly zone” over Bosnia and Herzegovina; and the un humanitarian mission in Somalia.80 The Organstreit challenges asserted that each of these deployments constituted a violation of the Basic Law. The full text of the relevant Basic Law articles illuminates our consideration of the resulting Constitutional Court judgment:

Separ ation of Powers 203 Article 87a (2): Apart from defense, the Armed Forces may be employed only to the extent expressly permitted by this Basic Law. Article 59 (2): Treaties that regulate the political relations of the federation . . . shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. Article 24 (2): With a view to maintaining peace, the federation may enter into a system of mutual collective security; in doing so it shall consent to such limitations upon its sovereign powers as will bring about and secure a peaceful and lasting peace in Europe and among the nations of the world.

The centerpiece of the constitutional challenge to these deployments was Article 87a (2) of the Basic Law. Numerous arguments, many of them originating in the legal academy, parsed every word of Article 87a (2), focusing heavily on the historical and literal meaning behind the words “employed” and “defense.” Those parties and groups challenging the validity of these military deployments read this language literally, claiming that there could be no use of the armed forces inside or outside Germany without explicit constitutional authorization. The federal government and its defenders, for their part, argued that Article 87a (2) of the Basic Law was intended to apply to the use of the armed forces inside, not outside, Germany.81 The formal constitutional battle began when fdp members of parliament asked the Court to issue a preliminary injunction against the participation of German awacs (Airborne Warning and Control System) aircraft over Bosnia-Herzegovina as part of the nato operation. Th is was a highly unusual political move because the fdp was a junior partner in the coalition government that ordered the deployment— the very coalition against which the constitutional challenge was leveled. In a 5–3 vote the Second Senate denied the injunction pending a full review of the constitutional issues presented.82 A few weeks later, the senate unanimously rejected a separate application, fi led by the spd, seeking a preliminary injunction against the operation in Somalia.83 These two cases, along with the action against Germany’s participation in the un embargo against Serbia and Montenegro, were consolidated for a decision on the merits in awacs I. In upholding the executive’s actions in all three instances, the Court gave surprisingly little consideration to Article 87a (2), the provision of the Basic Law on which legal scholars and other commentators had focused most of their attention. Instead, the Court concentrated on Article 24 (2) and the meaning of the phrase “a system of mutual collective security.” It ruled that both the un and nato treaties constituted systems of mutual collective security within the meaning of Article 24 (2) of the Basic Law, and that the Bundestag’s approval of these treaties under Article 59 (2) was accompanied by the implied constitutional authority to fulfi ll the terms of these agreements, including, if necessary, the deployment of German military forces.84 In a complex and divided opinion exceeding one hundred pages, the Second Senate handed down several rulings. First, the senate sustained the validity of the un

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Somalia action, although three justices dissented from the majority’s view that the Bundestag’s original assent to the un Charter included an agreement to place German troops under an international command. Second, although the senate ruled unanimously that the deployment of German military units within the framework of nato and the weu (Western European Union) pursuant to un resolutions was compatible with Article 24 of the Basic Law, the justices divided 4–4 over whether these treaties covered military actions beyond the purview of nato and the weu. An even split on the Court allowed the challenged governmental action to stand. The dissenting justices (Limbach, Böckenförde, Kruis, and Sommer) argued that the nato awacs operation fell outside the original purpose of nato. To validate the operation, therefore, the government would need to amend the treaty accordingly and secure renewed parliamentary approval under Article 59 (2) of the Basic Law; anything less than this, said the dissenters, would violate the rights of Parliament. The prevailing justices (Kirchhof, Grasshof, Klein, and Winter) insisted on a more “dynamic” approach to Article 59 (2) of the Basic Law that would permit treaties to be adapted and applied to changing circumstances without going through the laborious process of being formally amended.85 With its decision in the nato Strategic Concept Case (2001) just a few years later, the Court appeared to unanimously embrace this flexible view of Article 59 (2).86 Th ird, the Court significantly qualified the victory it handed the federal government by articulating constitutional principles that greatly limit the executive’s authority to commit Germany to the use of force. Decades after the Adenauer government proposed such an interpretation, the Court held in awacs I that Article 24 (2) of the Basic Law impliedly authorized the federal government to fulfi ll its obligations under treaties like the un Charter and the North Atlantic Treaty Organization (nato), including the deployment of armed forces.87 More significantly, the Court held that any deployment of the German armed forces for nondefensive “armed operations” requires prior parliamentary approval.88 The Court could not point to a clear textual basis for this significant constitutional limitation on executive authority regarding the use of force.89 Instead, it derived the rule from constitutional history, pointing to the Weimar-era requirement for a parliamentary declaration of “war” or “peace.”90 The Court also referred to the Basic Law’s assignment of the military’s budget to the Parliament.91 The Court further explained that the rule existed as an echo of Parliament’s constitutional prerogative over treaty making in the fi rst instance, a prerogative required when obligations under a treaty call for dramatic measures like troop deployments.92 The Court concluded by underscoring that the rule reinforced the ever-fragile balance between almost plenary executive authority in foreign affairs and the principle of checks and balances inherent in the Basic Law’s scheme of separation of powers.93 With its holding in awacs I the Court vindicated Parliament’s right to decide on the deployment of the military for “armed operations.” This right explains why German policy makers commonly refer to the German armed forces, as Chancellor Angela

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Merkel did in a speech at the 2006 Munich Security Conference, as a parliamentary army (Parlamentsarmee).94 An Expanding Role for the German Armed Forces? In the decade following its decision in awacs I the Court seemed less willing to enforce strict constitutional limitations on the executive’s authority over military affairs.95 As noted earlier, the Court turned aside constitutional challenges to the federal government’s accession to nato’s new, out-of-territory, and nondefensive strategic concept.96 The military implications for Germany’s participation in the new strategic concept were obvious. At the time the new strategic concept was announced in 1999, nato was prosecuting its bombing campaign against Serbia, an action that was neither defensive nor concerned with nato territory. In spite of the fi rm assertion of parliamentary priority it had announced in awacs I, and without regard to the very evident military implications, the Court was untroubled by the fact that the federal government had committed Germany to nato’s new strategic concept without consulting the Parliament. The Court’s decision in the nato Strategic Concept Case was foreshadowed by its earlier decision in the Kosovo Case, which presented the Court with a challenge to Germany’s fi rst “active role in a peacemaking operation [during ongoing hostilities] since the Second World War.”97 The un Security Council did not approve nato’s 1999 bombing campaign against Serbia and Montenegro in response to humanitarian atrocities being committed against Kosovar Albanians. The legality of the campaign was questioned by international law scholars and peace activists around the world, and nato’s member states asserted humanitarian intervention as an emerging exception to the otherwise exclusive jus ad bellum of the un Charter. In Germany, ironically, it was Foreign Minister Joschka Fischer who took the lead in justifying the use of the armed forces before the Federal Constitutional Court.98 Foreign Minister Fischer, the leading representative of the Green Party in the spd-led Red- Green Coalition, had come to symbolize left ist pacifi sm. To the dismay of the left , however, “Fischer was fi lled with conviction on [the theme of humanitarian military intervention]. When he got into office he took the fundamental Green commitment to antiwar principles, deft ly heaved it overboard, and gave his official endorsement to Germany’s participation in the nato effort [against Serbia].”99 Only the far-left pds remained to assert the Parliament’s interests in a constitutional, separation of powers challenge to Germany’s Kosovo deployment. 4.11 Kosovo Case (1999) 100 BVerfGE 266 [The Bundestag embraced the humanitarian justification for the Kosovo deployment and authorized the participation of German armed forces in the campaign to an escalating degree in four successive resolutions. Representatives of the pds, the same party that challenged the federal government’s adoption of the

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1999 nato Strategic Concept, sought a temporary injunction against Germany’s Kosovo deployment. The pds representatives argued that the requirements of Article 24 (2) of the Basic Law had not been met because the Court, in awacs I, presupposed un authorization as a condition for any deployment pursuant to Germany’s obligations under a “system of mutual collective security.” In the absence of such un authorization, the pds representatives also argued that the Kosovo deployment constituted a violation of Articles 25 and 26 of the Basic Law. The Second Senate summarily dismissed the temporary injunction application with a brief but meaningful reference to the constitutional standards that would be implicated if the case were to be considered on its merits.]

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Judgment of the Second Senate. . . . The Basic Law empowers the federation to establish armed forces for purposes of defense and to enter into systems of collective self-defense and mutual collective security. Th is also includes the power to take part with its own armed forces in operations that are provided for within the framework of such systems and take place according to their rules. Still, the deployment of armed forces requires the prior constitutive consent of the Bundestag. In this case, the Bundestag gave its consent. On 16 October 1998 the 13th Bundestag acceded to military measures for the prevention of a humanitarian catastrophe in Kosovo. That resolution authorizes nato air operations, which are to be carried out in phases. In adopting that resolution, the Bundestag was aware that, in all probability, the operation would be carried out without authorization from the United Nations Security Council. The federal government had expressly pointed out that it nevertheless considered a nato military deployment to be justified. The Bundestag resolution of 16 October 1998, therefore, covers the current nato air strikes. The more recent resolutions of the 14th Bundestag have neither replaced nor modified the initial resolution of 16 October. They relate to specific individual questions: to an air surveillance operation that had been agreed with Yugoslavia, and to the implementation of a Rambouillet Agreement. The later resolutions refer to the resolution of 16 October 1998 and, thereby, make it clear that the 14th German Bundestag also stands by the resolution on a military operation to prevent a humanitarian catastrophe. Therefore, the rights of the German Bundestag have not been violated. Th is is true whether Article 25 of the Basic Law (the primacy of customary international law) and Article 26 of the Basic Law (securing international peace) grant the Bundestag any rights of its own.

∂

A year after the Kosovo deployment, the government of Chancellor Schröder undertook a comprehensive overhaul of Germany’s defense structure with the stated pur-

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poses of improving the armed forces’ ability to secure and defend German territory and contribute to operations around the world. Germany tested its new preparedness by contributing significantly to nato’s ceasefi re monitoring mission in Macedonia in the late summer of 2001. Chancellor Schröder was one of the fi rst world leaders to invoke the imagery of war in the immediate aftermath of the 11 September 2001 terrorist attacks in the United States, calling the attacks “a declaration of war against the entire civilized world.”100 A month later Chancellor Schröder informed the Bundestag of his desire to see Germany’s defense and security policy change to permit it to more fully contribute to the newly conceived global “war on terror” in a manner and degree equal to Germany’s post–Cold War role as an “important European and transatlantic partner, but also as a strong democracy and strong economy in the heart of Europe.”101 Th is new role, Schröder explained, would have to include “participation in military operations for the defense of freedom and human rights, for the establishment of stability and security.”102 He made specific reference in his speech to “Operation Enduring Freedom,” led by the United States and endorsed by the un and nato, which aimed at ousting Afghanistan’s Taliban government as a consequence of its longstanding support of Islamic terrorists, particularly Al-Qaeda. In mid-November 2001, Schröder coupled his request for a Bundestag resolution authorizing the deployment of German soldiers to Afghanistan with a vote of confidence in an attempt to discipline the pacifist elements in the center-left parties constituting his coalition government. Schröder won a very slender majority in the Bundestag on both matters and Germany contributed a small number of special operations soldiers during hostilities in Afghanistan, eventually increasing the size of its deployment as part of nato’s International Security Assistance Force, which has provided security during the rebuilding and democratization efforts in post–Taliban Afghanistan. The Constitutional Court approved the Parliament’s general and open-ended authorization of force deployments in support of nato’s ongoing Afghanistan operation.103 That deployment continued for years to come, growing ever more controversial as German casualties in Afghanistan increased and with the discovery in 2009 that the German military had been involved in an operation that resulted in the deaths of dozens of civilians.104 The Iraq War and the AWACS II Case. In the awacs II Case the Court put an end to its permissive review of Germany’s military activism. Perhaps not surprisingly, the case that inspired the Court to fi rmly reassert separation of powers limits on the use of force arose out of the U.S.-led invasion of Iraq in 2003. That war was extremely unpopu lar in Germany. Preternaturally attuned to the popu lar mood, in a speech inaugurating his 2002 reelection campaign Chancellor Schröder categorically objected to German participation in America’s imminent war. “I say, we are ready for solidarity,” Schröder declared, “but under my leadership this country is not available for an adventure.” He went on: “Pressure on Saddam Hussein, yes. We must see to it that the international observers are able to do their work in Iraq. But

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playing around with war and military intervention—I can only warn against this. Th at is not to be undertaken with us.”105 Some credited Schröder’s staunch opposition to a war in Iraq with salvaging his chances for a second term as chancellor, even if it could not be cleanly reconciled with his earlier enthusiasm for German military engagement, which had clearly betrayed the pacifi st core of his party. But Marco Overhaus found a unifying theme in that Germany’s military engagement in the 1990s, just as much as its bristling objection to the American-led war in Iraq, demonstrated a new “self-confidence” in Germany’s foreign aff airs. As Chancellor Schröder put it: “[T]his Germany, our Germany, is a self-confident country.”106 In spite of his strident opposition to President George W. Bush’s invasion of Iraq, Schröder nonetheless planned to send German awacs planes to Turkey, which requested nato support in anticipation of a fl ailing, aggressive gesture from Saddam Hussein’s threatened regime. As part of the nato-approved response to Turkey’s appeal for assistance, the Schröder government authorized the deployment of German soldiers to Turkey to participate in a nato awacs operation. Parliament had not approved the deployment. Representatives of the fdp in the Bundestag sought an order from the Court to temporarily enjoin German participation in nato action. The fdp argued that Germany’s participation in the nato assistance being provided to Turkey served to indirectly facilitate the invasion of Iraq and could not be characterized as routine military surveillance fl ights. The fdp argued that this was especially the case in the circumstances, including the buildup to the American-led invasion of Iraq that started on 20 March 2003. As a constitutional matter the fdp argued that deployment to such a precarious and charged setting presented the considerable risk that German armed forces, although operating exclusively in a defensive capacity in peaceful Turkish airspace, might be drawn into the Iraqi confl ict. Th is, the fdp reasoned, was tantamount to a deployment for an “armed operation,” for which the Court clearly had imposed the obligation of parliamentary approval in its interpretation of Article 24 (2) in awacs I. The Court rejected the fdp’s motion for a temporary injunction in 2003. In declining to issue the temporary injunction, the Court explained that it felt itself obliged to exercise self-restraint when asked to encroach upon the actions of other branches, especially as regards foreign affairs. The Court explained that this restraint, when considered in conjunction with the “balancing” of consequences at stake in a grant or denial of the injunction,107 counseled against approving the application. The Second Senate nonetheless underscored the gravity of the Bundestag’s right of approval in the deployment of the German armed forces and it consciously left open, for a decision in the case on its merits, the matter of defi ning the nature and kind of military engagement that would trigger the requirement of Bundestag approval. Five years later it answered those questions when it ruled on the merits of the fdp’s challenge to the 2003 deployment to Turkey.

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4.12 AWACS II Case (2008) 121 BVerfGE 135 [In an Organstreit proceeding, the fdp asked the Court to rule that the federal government had violated the rights of the Bundestag by failing to obtain Parliament’s approval for the awacs deployment over Turkey in 2003. The government responded that parliamentary approval was not required under the terms announced by the Court in awacs I because the deployment did not constitute an “armed operation” but merely consisted of routine, defensive aerial surveillance. The German armed forces, the government argued, were not expected to be involved in the use of military force. Th is, the government said, was the extent of the Court’s ruling in awacs I. In tone and substance, the Court strenuously disagreed with the government’s positions. In a decision upholding the constitutional challenge, the Court further clarified the parameters of the separation of powers between the Parliament and the executive (and by virtue of its invasive review in the matter, of the judiciary, too) in military affairs.]

∂

Judgment of the Second Senate. . . . C. . . . The application is well-founded. The respondent should have obtained the approval of the Bundestag for the participation of German soldiers in measures of aerial surveillance of Turkey from 26 February to 17 April 2003 as part of nato’s “Operation Display Deterrence,” by reason of the requirement of parliamentary approval for the deployment of armed forces under the provisions of the Basic Law that concern military affairs. I. 1. a. The Basic Law has entrusted the decision as to war or peace to the Bundestag as the body representing the people. Th is is provided expressly for the determination of a state of defense and a state of tension (Articles 115a (1) and 80a (1) of the Basic Law) and in addition it applies in general to the deployment of armed forces, including deployments in systems of mutual collective security under the terms of Article 24 (2) of the Basic Law. From the totality of the provisions of the Basic Law that concern defense and against the background of German constitutional tradition since 1918, the Federal Constitutional Court has derived from the Basic Law a general principle that every deployment of armed forces requires the mandatory approval of the Bundestag, which, as a general rule, should be given in advance. The provisions of the Basic Law that relate to the armed forces are designed not to leave the German armed forces as a potential source of power in the hands of the executive alone, but to integrate it as a “parliamentary army” into the constitutional system under democracy and the constitutional state principle. The requirement of parliamentary approval under the provisions of the Basic Law that concern defense creates an effective right of participation for the Bundestag in matters of sovereign decisions relating to foreign aff airs. Without parliamentary

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approval, a deployment of the armed forces is, as a general rule, not permissible under the Basic Law; only in exceptional cases may the federal government—in the case of imminent danger—provisionally decide on the deployment of armed forces in order that the defense and alliance capacities of the Federal Republic of Germany are not called into question by the requirement of parliamentary approval. In such an exceptional case the federal government immediately must refer the deployment to Parliament and at the request of the Bundestag recall the forces. Concomitantly, the Bundestag may not order a deployment of forces without the cooperation and approval of the federal government. The requirement of parliamentary approval is a reservation of consent that confers no power to initiate deployments. . . . b. . . . At all events, the use of the German armed forces for mere relief ser vices and the rendering of assistance abroad where soldiers are not involved in armed operations does not require the approval of the Bundestag. . . . These statements made in the previous decisions of the Court do not exhaustively defi ne the scope of the requirement of parliamentary approval under the relevant provisions of the Basic Law. The literature on constitutional law discusses the phrase “deployment of armed forces” and the question as to when German soldiers, in the meaning of the senate’s decisions, are “involved in armed operations”. . . . [The Court reaffi rmed the central elements of its decision in the nato Strategic Concept Case (2001). First, it confi rmed the holding that Parliament must approve, and therefore remains politically accountable for, Germany’s treatybased commitments (within the terms of Article 59 (2) of the Basic Law). Second, the Court emphasized the holding that the federal government has the authority to shape the development of policy within the framework of Germany’s parliamentary-approved, treaty-based commitments. Th is doctrine, the Court explained, did not resolve the question of the competence to authorize military deployments.] c. . . . The freedom of the federal government to structure its alliance policy does not include the decision as to who, on the domestic level, is to determine whether soldiers of the German armed forces will take part in a specific deployment that is ordered by the decision-making entities of an international treaty alliance. By reason of the political dynamics of an alliance system, it is all the more important that the increased responsibility for the deployment of armed forces should lie in the hand of the body that represents the people. As this senate has already emphasized, the requirement of parliamentary approval is an essential corrective to the limits of Parliament’s assumption of responsibility in the field of foreign security policy. When military force is exercised, the executive’s broad sphere of influence in foreign affairs ends. When armed forces are deployed, the Bundestag does not have the mere role of a body that only indirectly steers and monitors the situation, but instead is called upon to make fundamental, essential decisions; it bears the responsibility for armed foreign deployments of the German armed forces. To this extent, the German armed forces are a “parliamentary army,”

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despite its command structure, which places the military and operative leadership in the hands of the executive. The Bundestag can preserve its legally relevant influence on the deployment of the forces only if it has an effective right of participation in the decision on the deployment of armed forces before the military operation commences and then becomes essentially a question of military expediency. The use of armed force means not only a considerable risk for the life and health of German soldiers, but it also contains a potential for political escalation or, possibly, involvement: every deployment is capable of developing from a limited individual action into a larger and longer-lasting military confl ict, up to an extensive war. The transition from diplomacy to force is accompanied by a corresponding change in the proportions of the internal assignment of powers. The requirement of parliamentary approval creates, in this way, a collaboration of parliament and government to decide on the deployment of armed forces; this does not fundamentally call into question the executive’s own area of action and responsibility for foreign affairs allocated to it under constitutional law. For when it comes to deciding on the concrete particulars and the extent of individual deployments, the federal government retains sole competence, as it does for the coordination of the integration of forces in and with the institutions of international organizations. . . . d. . . . In view of the function and importance of the requirement of parliamentary approval, its scope may not be defi ned restrictively. Instead, in the case of doubt about the proper competence to authorize deployment, the requirement of parliamentary approval must be interpreted by the Federal Constitutional Court in favor of Parliament. In par ticu lar, when the requirement of parliamentary approval applies, it may not be made substantially dependent on the political and military evaluations and prognoses of the federal government, invoking areas of freedom for the executive to structure its policy; the executive may be granted a prerogative of assessment only in urgent cases and thus only temporarily. 3. If German soldiers are involved in armed operations, this is a deployment of armed forces that is permissible under the Basic Law only on the basis of the essential approval of the Bundestag. a. The decisive criterion for the requirement of parliamentary approval of the deployment of armed forces under the Basic Law is their involvement in armed operations; this criterion is understood by the respondent to mean that involvement of Parliament in the deployment of forces does not become necessary until, and only becomes necessary if, German soldiers actually use armed force. Such an interpretation does not follow from the rules announced in the awacs I Case (1994). If the requirement of parliamentary approval were understood so narrowly, then the Bundestag could not adequately exercise its legally relevant influence on the use of the German armed forces. . . . It is not relevant for the requirement of parliamentary approval whether armed confl icts in the sense of combat have already taken place, but whether, in view of the specific context of the deployment and the individual legal and factual circumstances, the involvement of German soldiers in armed confl icts is concretely to be expected and German soldiers are therefore already involved in

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armed operations. The Court based its conclusions in awacs I on this distinction when it spoke of an involvement not in “armed confl icts” but in “armed operations”; the very meaning of the words in the latter case does not imply that the situation must actually develop into a combat scenario. Instead, the senate held that, to determine whether there was involvement in armed operations in the individual case, the purpose of the deployment and the deployment powers must be considered in more detail. . . . b. The mere possibility that there may be armed confl icts during a deployment is not sufficient for this. . . . The requirement of parliamentary approval does not, therefore, extend to deployments where there are no indications of a specific proximity to the use of military force. For this reason, it is only the well-founded expectation of involvement in armed confl icts that subjects a foreign deployment of German soldiers to the requirement of parliamentary approval. Th is well-founded expectation differs in two ways from the mere possibility that there may be armed confl icts: aa. Firstly, there must be sufficient tangible actual evidence that a deployment, by reason of its purpose, the concrete political and military circumstances and the deployment powers, may lead to the use of armed force. For this to be the case, there must be a concrete military situation of danger which has a sufficient factual proximity to the use of armed force and thus to the involvement of German forces in an armed conflict. . . . bb. Secondly, for a well-founded expectation that soldiers in the German armed forces will be involved in armed conflicts, a particular proximity to the use of armed force is necessary. For this to apply, the involvement must be expected immediately. . . . cc. The question as to whether there is involvement of German soldiers in armed operations is subject to full judicial review; in this connection, the federal government is not granted latitude for assessment or prognosis that cannot be verified, or that can be verified only to a limited extent, by the Federal Constitutional Court. Such latitude is normally presumed to exist in the area of sovereign decisions relating to foreign affairs, because only in this way can the fundamental priority in action of the executive be enforced . . . Thus, the precondition for restraint in the intensity of the review by the Federal Constitutional Court is missing. Since the Basic Law gives the Bundestag a primary right of participation in the area of sovereign decisions relating to foreign affairs, insofar as the requirement of parliamentary approval of military deployments, there is positively no latitude for the executive to make decisions apart from its competence in urgent matters. . . . II. By this standard, the involvement of German soldiers in the aerial surveillance of Turkey by nato from 26 February to 17 April 2003 was a deployment of armed forces that, under the requirement of parliamentary approval, required the approval of the German Bundestag. Although no combat operations took place, German forces, in participating in this deployment, were involved in armed operations. 1. By carry ing out aerial surveillance of Turkey in nato awacs aircraft, German soldiers took part in a military deployment in which there was tangible actual evidence of imminent involvement in armed operations. . . .

∂

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AWACS II and Judicial Review. In awacs II the Court fi rmly reiterated that Parliament alone has the constitutional authority to decide on deployments involving “armed operations.” The decision has several facets that merit closer scrutiny. First, the Court clearly defi ned the pa rameters of this parliamentary right, noting that the language chosen in awacs I was deliberately broader than the federal government might have liked. Thus, parliamentary approval is necessary for deployments involving “armed operations” and not the narrower circumstances involving an “armed confl ict.” At one extreme, the expansive defi nition the Court gave to the phrase “armed operations” excluded deployments aimed at providing “relief ser vices” or “assistance abroad.” At the other extreme, the right of parliamentary approval is not triggered by the mere possibility of combat. The phrase “armed operation,” the Court explained, extended the parliamentary prerogative to circumstances in which no combat was under way, as might be understood if the controlling standard were “armed confl ict.” Instead, the broader standard “armed operation” required parliamentary approval of deployments for which there is a specific indication that proximity to combat creates the expectation that the German military will immediately use armed force. Significantly, the Court found a parliamentary presumption in the relevant constitutional framework. When in doubt, the Court explained, Parliament has priority with respect to the deployment of the German armed forces. Second, the Court was at pains to cast its decision as a matter of checks and balances. In tones ringing with German history, the Court said the use of force should not come to serve the aggrandizement of a par tic u lar branch or organ of government. The Court sought to neutralize the risk that a military deployment might escalate a political struggle or become a tool in political brinksmanship. Under the Basic Law, the Court insisted, military aff airs must be understood as a collaboration between the Bundestag and the federal government. Thus, the awacs II decision reaffi rmed the legislature’s right to make the “essential decision” regarding the use of force. The case also acknowledged that, after a deployment decision is reached by the Parliament, the command and operational leadership of the military resides with the executive. The Court went out of its way to reassure the federal government that its decision was not meant to call into question the responsibility for foreign aff airs the Basic Law assigns to the federal government. Th ird, the Court sought to justify its expansive framing of Parliament’s right of approval in part by sounding a cautious tone as regards the political dynamics of an alliance system. Perhaps as a subtle signal of unease over America’s apparent cynicism toward international security institutions, the Court warned that Germany should not be led into armed confl ict by foreign interests that could be framed as collective security concerns. To avoid this, deployments must be authorized by the federation’s popu lar branch. Finally, the Court clearly signaled its intent to monitor and enforce Parliament’s priority on the question of military deployments. “The question as to whether there

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is involvement of German soldiers in armed operations,” the Court emphasized, “is subject to full judicial review.” The Basic Law clearly gives the Constitutional Court jurisdiction to hear challenges to the federal government’s plans to deploy the armed forces, chiefly through Organstreit proceedings. And, as the preceding discussion reveals, the Federal Constitutional Court does not recognize a political question doctrine,108 the basis on which the Supreme Court largely has avoided reviewing challenges to executive authority over military affairs. Instead, the Constitutional Court repeatedly has been called upon to judge the constitutionality of the federal government’s security agenda. For decades, except in cases of self-defense, the deployment of the armed forces was constitutionally unacceptable in Germany, a perspective thought by many to be required under provisions of the Basic Law. Since 1994 and the awacs I Case, however, this argument has had little purchase in the Federal Constitutional Court, amounting to a major shift in constitutional interpretation. The awacs II decision did little to reverse this fundamental shift, although it restored the constitutional limits on the use of force that seemed to be softening since the end of the Cold War. Th is reaffi rmation of separation of powers chiefly vindicated the role of Parliament vis-à-vis the executive in deployment decisions. By contrast, U.S. presidents have asserted that the constitution’s war powers reside largely with the executive branch, not Congress. Direct attempts by Congress to “fulfi ll the intent of the framers . . . and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities” have met with limited success.109 The difference is largely due to the use of the political question doctrine, which has enabled the American judiciary to evade war powers questions.110

conclusion Former Constitutional Court justice Konrad Hesse, the author of a major text on the fundamental principles of the German Basic Law, wrote that the allocation of various powers under the constitution permits formation of a differentiated political structure geared to uniform cooperation and embodying the state’s capacity to act through the formal activities of its [major] organs. Thus, separation of powers reveals the details of the political structure, confers specified responsibilities, and has a rationalizing effect. Similarly, the separation of powers specifies and coordinates the more active elements of political leadership and decision making as well as the more static elements of technical and administrative rule making, and in addition safeguards the constitutional state principle in the political arena. [Th is combination of structures and relationships] not only incorporates an optimal measure of self-government but also facilitates adjustment to historical change and is therefore capable of assuring relative continuity over time. In ratio-

Separ ation of Powers 215 nalizing, stabilizing, and limiting political power, separation of powers constitutes the basic organ izational principle of the constitution.111

In the light of these remarks and of the materials contained in this chapter we can begin to perceive an essential difference between separation of powers as understood in Germany and separation of powers as known in the United States. In American constitutional theory, as Madison wrote, “each department should have a will of its own,”112 pitting ambition against ambition, as the veto power of the president might suggest. “To what purpose separate the executive and the judiciary from the legislative,” wrote Hamilton in the same vein, “if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative?”113 In this model of separated powers—rooted as it is in Lockean and Hobbesian concepts of society and human nature—the three departments are independent and coordinate with one another. The Basic Law’s model of separated powers, on the other hand, draws on distinctly German theories of the state. Accordingly, state authority (Staatsgewalt) represents the unified will of the commonwealth as expressed in public policy formulated by parties, elections, and political representation. Unless laws adopted by Parliament offend some provision of the constitution, they represent binding decisions requiring implementation by both the executive and the judiciary. Unlike the “inevitable friction incident to the distribution of governmental power among [the] three departments” found implicit by Justice Louis Brandeis in the American doctrine of separation of powers, the German doctrine assumes that all the branches will operate under a condition of harmonious interdependence.

5 Political Representation and Democracy ∂ Democracy, like federalism, separation of powers, and the constitutional state, is a fundamental principle of the German polity.1 The Basic Law (Grundgesetz) does not, however, explicitly define the term “democracy,” which is the subject of considerable commentary in German legal literature.2 The Federal Constitutional Court (Bundesverfassungsgericht) and most commentators have tended to define German democracy by reference to related institutions and principles in the Basic Law. These include elections leading to the formation of a representative parliament. For the most part, the constitution leaves the details of the electoral process to the discretion of the Parliament, but the complicated electoral system established by law has received considerable scrutiny to ensure its conformity with a number of constitutional provisions. Political parties are given constitutional status in Germany’s democratic infrastructure, with the Federal Constitutional Court paying particular attention to the legitimacy and efficacy of the political opposition, to the rights of political minorities, and to the fairness of political financing. Germany’s history also led the framers of the Basic Law to seek to protect their new democracy from the enemies of political liberalism by providing a number of constitutional mechanisms to ensure democratic longevity and stability. As this summary of the most fundamental facets of German democracy reveals, consideration of German political representation and democracy engages a complex matrix of the following constitutional provisions: regular elections and the secret ballot (Articles 20 (2), 38 (1), and 39 (1)); indirect representation (Articles 38 (1) and 28 (1)); majority rule (Articles 42 (2), 52 (3), 54 (6), 61 (1), 63 (2–4), 67 (1), 68 (1), and 121); equality in voting for legislative representatives and equal access to public office (Articles 3 (1), 38 (1), and 33 (1) and (2)); free speech and press (Article 5 (1)); freedom of assembly and association (Articles 8 and 9); a multiparty system (Article 21 (1)); and vigilance in the protection of democratic institutions and principles (Articles 79 (3) and 21 (2)).3 Th is chapter organizes Federal Constitutional Court cases dealing with these structures and procedures under the headings of parliamentary democracy, elections and voting, the party state and political spending, and militant democracy.

parliamentary democracy Article 20 (1) of the Basic Law defi nes the Federal Republic of Germany as a “democratic state.” Paragraph 2 of the same article reinforces this provision by declaring that “all state authority emanates from the people.” The next sentence, however, emphasizes the representative character of the political system.4 The authority emanating

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from the people “shall be exercised by . . . means of elections and voting and by specific legislative, executive, and judicial organs.”5 The Basic Law establishes the Parliament (Bundestag) as the chief representative organ charged with transforming “the political will of the sovereign people into the government’s and legislature’s.” 6 As Michael Brenner explained: In a representative democracy, some special body must effectuate the principle of people’s sovereignty. Th is special body, representing the people’s will in the Federal Republic of Germany, is the German Bundestag with its parliamentary representation. It is primarily through the Parliament that the people influence the exercise of state power, which is their constitutionally guaranteed and ensured right through the principle of people’s sovereignty. . . . The Bundestag, as the central and also the only directly democratically legitimated representative body, ensures that state power is actually based on the people’s recognition and approval. It thus plays the decisive and leading role within the structure of state powers.7

After reunification, the Bundestag left its West German home in Bonn to take up residence in the spectacularly redesigned Reichstag building in Berlin. Th is had the effect of directly acknowledging Germany’s troubled history with parliamentary democracy.8 Nonetheless, one of the Reichstag building’s many poignant artifacts attests to the unequivocal link between the people and their representative body; the words “To the German People” (“Dem Deutschen Volke”) are prominently inscribed in the stonework above the main entrance. Germany is not a parliamentary democracy in the British sense of parliamentary supremacy. The Basic Law, as interpreted by the Federal Constitutional Court, controls Parliament as well as every other branch of government. The Basic Law, however, only addresses the functions and character of the Bundestag in general terms, leaving many of the relevant details to this chamber’s discretion.9 As noted in Chapter 4, Germany shares with Britain and other parliamentary systems the close nexus between the federal government and the parliamentary majority, which elects and can remove the chancellor. In Germany, it is also typical that the chancellor and his or her government ministers are also members of the Bundestag. This close nexus uniquely implicates the parliamentary minority in the constitutional separation of powers and the representation of the German people. The balance of partisan power in the Parliament, with its attendant consequences for governing authority and accountability, makes competition among political elites within the Bundestag a particularly important facet of German democracy. As Georg Ress observed, “the interest of the majority party in supporting the government will often make it impossible for it to serve as an effective counterpart. This is reflected in the Basic Law, where the parliamentary rights to control the executive are often formulated as minority rights. [For example, it] takes only one fourth of the members of the Bundestag to establish an investigative committee (Art[icle] 44 [(1)]).”10 Volker Röben argues that “Article 44 of the Basic Law is one of the most litigated institutional provisions of the constitution”

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because of the political significance and sensationalism of parliamentary investigations of the government. “The obvious interest of the parliamentary majority will . . . be,” Röben explains, “to protect its [g]overnment against the opposition.”11 The Federal Constitutional Court frequently has been called upon to protect the interests of opposition and minority parties in the Bundestag, particularly with respect to their participation in and influence over the important work of parliamentary committees. It has done so with clarity and authority by blocking the parliamentary majority from adding matters to an investigative committee’s mandate,12 by limiting the executive’s privilege to withhold evidence from investigative committees or members or Parliament,13 and by balancing an individual’s right to privacy against the important constitutional interest in an investigative committee’s effectiveness.14 The Minority Rights in Investigative Committees Case is another in this line of cases. The Court showed great concern for minorities in parliamentary investigations, directly linking the minority’s function in that context with the essence of German democracy. The case arose when, a year after losing the 1998 federal election, Helmut Kohl found himself embroiled in a party fi nancing scandal that would tarnish his reputation and force him to resign both his seat in the Bundestag and the honorary chairmanship of his party, the Christian Democratic Union (cdu). It was a sudden fall from grace for (to that point) Germany’s longest-serving chancellor and the man many Germans regarded as the father of reunification. A criminal investigation revealed, and Kohl ultimately admitted, that he had accepted secret, undeclared donations totaling several million Deutsche Marks (dm) for his party between 1993 and 1998. Th is was a violation of Germany’s strict party fi nancing laws and perhaps the constitution.15 Kohl refused to identify the donors, explaining that he had given his word that he would protect their confidences. In part, the investigation pointed toward political kickbacks associated with the sale of arms to Saudi Arabia and the sale of a former East German oil company to the French company Elf Aquitaine. The newly elected center-left majority in the Parliament, including the Social Democratic Party of Germany (spd) and the Green Party, easily satisfied the onefourth qualified minority rule of Article 44 (1) to convene a majority inquiry (Enquête) committee to investigate the party fi nancing allegations against the former Kohl government and the cdu. The committee’s initial mandate was later expanded to cover any irregularities in party fi nancing. Under this broader mandate the cdu committee members, although in the minority, pressed to have the committee investigate allegations of spd corruption. Not surprisingly, the committee’s spd majority refused to honor the requests for spd-related evidence, arguing that the minority was seeking to disrupt, undermine, and delay the committee’s work. 5.1 Minority Rights in Investigative Committees Case (2002) 105 BVerfGE 197 [The cdu minority turned to the Federal Constitutional Court, alleging violations of Articles 22 (1), 38 (1), and 44 (1) of the Basic Law. The Court made the

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requested temporary injunction moot by moving quickly to rule on the merits. But fi rst the Court had to resolve the difficult question of the application’s admissibility. In fi nding the application admissible the Court departed from an earlier decision in which it ruled that its Organstreit jurisdiction did not extend to intra-parliamentary disputes but applied only to disputes between the organs of the Federation. Contradicting this position in Minority Rights, the Court concluded that a parliamentary minority (of at least one-fourth of the parliamentarians) was especially empowered by Article 44 (1) of the Basic Law to make use of the Bundestag’s investigative apparatus and that this authority was accompanied by a right to seek the protection of this authority before the Federal Constitutional Court. Th is was true, the Court held, even in the present case where it had been the parliamentary majority that invoked Article 44 (1) for the creation of the committee. Having stretched to seize the matter, the Second Senate ruled for the cdu—the parliamentary minority—on the substance of the application.]

∂

Judgment of the Second Senate. . . . C. The applications are well-founded. . . . The respondent infringed the applicants’ rights under Article 44 (1) [1] of the Basic Law insofar as, without sufficient justification, it rejected motions by the applicants to hear evidence and did not implement motions to hear evidence that had already been passed. I. The committee’s minority, which is qualified and entitled to have the committee established pursuant to Article 44 (1) [1] of the Basic Law, has the right to have evidence taken in the committee. The minority establishing the committee has a right to have its motions to hear evidence considered by the committee’s majority; this also applies to the minority that potentially could have called for the establishment of the investigative committee. The minority’s motions to hear evidence must be granted unless the right of motion is being exercised inappropriately or improperly. The committee, that is, the committee’s majority, must give understandable reasons for the rejection of a motion to hear evidence raised by the committee’s minority. In this respect, the Federal Constitutional Court has jurisdiction to undertake only a limited review of reasonableness. Resolutions to hear evidence that have been passed on a motion of the minority also must be implemented by the committee. Nevertheless, control over the proceedings lies in the hands of the committee’s majority in each case. The majority decides on the order in which evidence is to be heard, having regard to the rights of the qualified minority, and must ensure, by appropriate rules of procedure, that the selection remains balanced, even where there is a risk of discontinuity. 1. Article 44 (1) [1] of the Basic Law confers on the Bundestag the right to establish investigative committees. Parliament is thereby given the opportunity, without the involvement of the government or administration, to obtain the information it

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regards as essential for the fulfi llment of its tasks. The main focus of the investigations invariably is on parliamentary control of the government and the administration. The right of investigation under the system of constitutional monarchy primarily was an instrument of the elected parliament against the monarchist executive. Under the conditions of the parliamentary system of government, however, the right of investigation largely has developed into a right of the opposition to have facts clarified independently of the government and its parliamentary majority. The Basic Law, therefore, has conferred on the Bundestag the right to establish an investigative committee and it has made this a duty for the majority if one-quarter of the parliamentarians request it. Article 44 (1) [1] of the Basic Law protects minorities in order to achieve a balance between parliamentary majority rule (Article 42 (2) of the Basic Law) and qualified minority rights (Article 44 (1) [1] of the Basic Law). a. The regulatory content of Article 44 (1) [1] of the Basic Law stretches beyond the duty of the Bundestag to establish an investigative committee on a motion of onequarter of its members. The tension between majority and qualified minority that the constitution accepts at the time the committee is established continues in the investigative proceedings. Irrespective of what rights of participation already flow from one’s status as a member of parliament (Article 38 (1) of the Basic Law), the members of a parliamentary party bloc (Fraktion) also may rely on the minority right enshrined in Article 44 of the Basic Law. Within the scope of the terms of reference of the investigation and subject to the majority principle, the minority seeking to establish a committee must be able to influence the decision on taking evidence. While the scope of this right of influence cannot extend further than that of the majority, it must be regarded in principle as equal in terms of weight. The majority and the qualified minority must be able to assert their ideas of what constitutes proper clarification. That interpretation, recognizing the meaning and purpose of Article 44 (1) [1] of the Basic Law, is not contrary to the intention of the framers of the constitution. . . . b. The right of the qualified minority to reasonable consideration of its motions to hear evidence also exists in the context of a majority inquiry (Enquête). In order to secure enjoyment of the procedural rights under Article 44 (1) [1] of the Basic Law, the minority entitled to establish the inquiry does not have to be constituted with an investigation motion of its own. Were this required by the constitution, the minority entitled to establish an inquiry would counter practically every majority inquiry with a minority inquiry of its own, either in parallel to the establishment of the majority inquiry or later in the event of a confl ict over the taking of evidence. That would give rise to a concurrence of investigative committees, which would be necessary only for the purpose of safeguarding rights. But the parallel committees would be politically undesirable because they would be concerned with overlapping or identical factual situations. As a consequence of this, evidence would be taken twice over, witnesses would have to testify before two investigative committees and fi les and other papers would be subpoenaed by both committees concurrently. Such a two-track approach

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to an investigation of a matter of public concern, considered necessary by the majority and the opposition minority in equal measure, would lead to a fragmentation of parliamentary business and to the risk of mutual obstruction in the fulfi llment of investigative tasks. The minority potentially entitled to establish an investigation, therefore, retains its procedural rights under Article 44 (1) [1] of the Basic Law even if it initially voted against the establishment of the investigative committee. There can be many different reasons for opposing a politically unwelcome inquiry but later wishing to cooperate with it. Nor can it be denied that there is a risk that the right of investigation, in the hands of the majority and in agreement with the government supported by it, could be directed against the parliamentary opposition. In that case the qualified minority must remain free to oppose the establishment of the investigative committee and—after the failure of such efforts—to take an active, influential role in the committee in order to secure a balanced clarification from its point of view. 2. Motions to hear evidence of the minority potentially entitled to establish the investigative committee must be complied with, provided that the right of motion is not abused. An order to hear evidence creates clarity, which is part of the committee’s agenda of clarification; this also applies to the formal rejection of a motion to hear evidence. The rejection by the majority of a motion to hear evidence of the qualified minority may not be based on the majority principle of Article 42 (2) of the Basic Law alone. Rejection requires a statement of reasons. The committee’s majority may reject motions to hear evidence of the qualified minority if it comprehensibly demonstrates that the minority is inappropriately exercising the rights conferred on it. Th is may be the case, for example, if the requested taking of evidence lies outside the investigation’s terms of reference or is unlawful, or if it is intended merely to delay or is manifestly improper. Having regard to parliamentary autonomy and to the par ticu lar nature of the investigatory procedure as an instrument for the clarification of issues in the context of political controversies, the Constitutional Court must confi ne itself to examining whether the statement of reasons given by the majority is comprehensible and whether the framework of assessment made available to the majority by procedural autonomy, in par ticu lar in interpreting the investigation’s terms of reference, has been utilized in a reasonable manner. Th is may be lacking if the reasons given for rejection do not reveal the documentary evidence for the inappropriateness of the rejected motions to hear evidence or if an interpretation of the investigative mandate is not understandable using legal methods of interpretation. 3. The committee must implement orders to hear evidence once they have been made, even if they have been requested by a qualified minority. But procedural control over the order of presentation of evidence and over the suitability of dates fi xed lies in the hands of the committee’s majority in each case. It must decide on the implementation of orders to hear evidence and ensure that the investigation’s terms of reference can be fulfi lled. Yet, the majority’s procedural control is restricted by the right of the qualified minority to reasonable participation. If, in the view of the majority, not all

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motions for evidence can be handled, it must ensure by means of appropriate rules of procedure, as contained in, for example, § 17 (3) of the Parliamentary Investigatory Committees Act that the minority is reasonably taken into consideration and that its views are heard.

∂

The Rights of Minority Parties. The Schleswig-Holstein Investigative Committee Case (1978)16 is one of the most prominent of the many cases in which the Federal Constitutional Court has been asked to vindicate the participatory rights of minority parties, particularly parliamentary parties opposing the dominant coalition.17 In Schleswig-Holstein Investigative Committee, unlike Minority Rights, the Federal Constitutional Court served in its special capacity as the constitutional court for the state (Land) Schleswig-Holstein18 and, thus, was charged with interpreting the parliamentary investigative committee provision of the Schleswig-Holstein Constitution (Article 5). The case involved the opposite of the situation in Minority Rights. Instead of a parliamentary minority being given the authority to contribute to the direction and focus of an investigative committee created by the majority, in Schleswig-Holstein Investigative Committee the Court limited the majority’s authority to manipulate an investigative committee constituted by a parliamentary minority. The Court’s opinion points out that an effective parliamentary opposition is an important aspect of the principle of separation of powers in a political system in which the same coalition controls both legislature and executive. For this reason, the Constitutional Court has vigilantly defended the rights of opposition parties unless such parties are found to reject the central core of the constitutional order. Along with the right of a qualified minority to constitute an investigative committee, the Federal Constitutional Court has considered a number of other issues involving the role of minority parties in the functioning of the Bundestag and German democracy more broadly. The remarkable rise to prominence of the Green Party provided more than a few of these cases. The Green Party, which burst onto the West German political scene in the federal election campaign of 1983,19 tested Parliament’s capacity for tolerating a party that opposed the established parliamentary parties on almost every significant public policy issue and whose unconventional political style antagonized most of the established parties. In 1983, several ecological, antinuclear, feminist, and peace groups organized themselves into a loose alliance known as the Greens, a grassroots countercultural movement disillusioned with politics as usual and the “corruption” of the established parties. They opposed the installation of nuclear missiles in Germany, the Federal Republic’s participation in military alliances, the multiparty political consensus that had been achieved in many areas of domestic policy—including the agreement to push forward with the development of nuclear energy—and even the German system of parliamentary representation. Running on this platform, the Green Party won more than 5 percent of the votes in the 1983 federal election, entitling it to twenty-seven seats in the Bundestag. More established politicians viewed the new delegation with amusement and scoffed at its

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“outlandish” proposals and behavior. Uncooperative and rancorous in these heady early days, the Green Party seemed more effective as a burr under the saddle of the traditional parties than as a unit offering concrete proposals for reordering society. These parties also distrusted the Green Party, especially in matters of national security. As a consequence, the Green Party was denied a seat on a special committee responsible for the budget of the intelligence ser vices. The Green Party Exclusion Case is one of several constitutional challenges initiated by the Green Party over the years to vindicate its institutional or representational rights.20 5.2 Green Party Exclusion Case (1986) 70 BVerfGE 324 [In 1984 and 1985 the Bundestag excluded Green Party representatives from the list of delegates elected to the special five-member Parliamentary Committee for the Control of the Secret Ser vice. Th is committee, whose members are elected by a majority of the whole Parliament and whose membership normally includes at least one representative of each parliamentary party, has jurisdiction over the budgets of the intelligence agencies. The Green Party challenged its exclusion in an Organstreit proceeding on several constitutional grounds. Most importantly, it argued that the Bundestag’s actions violated Article 38 (1), which in its view gave the Green Party a right, as “representatives of the whole people,” to be represented on all parliamentary committees. It also claimed that the secrecy of the committee’s deliberations offended Article 110 (1) of the Basic Law, which requires “all revenues and expenditures to be included in the budget.”]

∂

Judgment of the Second Senate. . . . [The Second Senate upheld the Bundestag’s procedures in this case. The Court affi rmed the basic right of an “individual representative under Article 38 (1) of the Basic Law to information that would allow him or her competently to assess the [soundness] of the budget.” Article 110 (1), however, does not “absolutely require publicity” in all circumstances. Parliament is entitled, said the Court, to “adopt a certain mode of deliberation that serves classified interests so long as it observes the principles of parliamentary democracy.” These principles were observed here inasmuch as Parliament 1) is autonomous in matters pertaining to its own procedures, 2) provided by law for a special committee to deal with budgetary proposals related to the secret ser vice, and 3) had overwhelmingly compelling reasons for proceeding in this manner. In the following excerpt, the Court underscored the parliamentary need for committee members who personally enjoy the confidence of the majority.]

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C. II. 3. a. The importance of secrecy in meetings concerning the budget of the intelligence ser vices requires a high measure of precaution. It is not the Constitutional Court’s function to weigh the particulars of how far such precautions should extend. The decision to leave this area of concern to a very small parliamentary committee is constitutionally permissible. In previous budgetary years it was also customary to confine deliberation over the budget of the secret ser vice to a very small committee, a subcommittee of the Budgetary Committee. The reasons advanced by the respondents [the federal government and president of the Bundestag] for the small size of the committee under the terms of § 4 (9) of the 1984 Budget Act are plausible. The most sensitive issues of national security are discussed in this committee. Bundestag representative Kühbacher, in hearings before this Court, noted that on the basis of the information received by the committee, one could assemble a coherent picture of the concrete operations of the secret ser vices in a way that would endanger the lives of particular individuals. Under these circumstances, to minimize the risk of disclosure, there are valid reasons for keeping the committee as small as possible. b. A majority of the Bundestag’s members chose the members of the committee. . . . Th is procedure was designed to ensure that only those delegates would be chosen who personally enjoy the confidence of a parliamentary majority. The purpose of the procedure is to make sure that the majority is convinced that the persons selected are both competent and discreet. Th is procedure is unusual and for that reason approaches the borderline of constitutionality because it is possible that the majority may not observe the proper criteria in making such decisions, but rather . . . ignore the rights of the minority and from purely political motives stack a committee with persons of their own political persuasion. That has not happened here. The five members of the committee, under the terms of the budgetary law for 1984, were selected on the recommendations of the cdu/ csu, spd, and fdp. The committee consisted of three representatives from the [coalition] parties and two from the opposition. The majority has not, therefore, abused the right of the minority. . . . [Justices Mahrenholz and Böckenförde dissented. The following extract is from Justice Böckenförde’s opinion.] I am unable to agree with the Court’s decision. The exclusion of the Green Party from participation in the budgetary deliberations concerning the secret ser vice violates principles protected by Articles 38 (1) and 20 (1) and (2). . . . I. 1. As the direct representatives of the German people, all the delegates elected to the Bundestag have the right to participate in its deliberations. The representatives as a whole make up the Parliament (Article 38 (1) [1]). Each individual delegate is a representative of all the people (Article 38 (1) [2]); jointly they make up the “representation of the people” and they are empowered by the people, in their capacity as an active citizenry, to represent the people as a whole. As a consequence, every individual representative is called upon to represent the people and to participate in the Parliament’s negotiations and decisions. Each has a

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specific and equal right to such participation. Only in this way can representatives responsibly carry out the official function for which they have been elected. Representatives are not to be divided into classes depending upon their identification with a political group or on whether they are affi liated with the majority or the minority parties. 2. What is basic to parliamentary democracy is the participation of all the representatives in negotiations conducted by the people’s representatives; this is the basis of majority rule among the representatives of the people, ensuring that all legislative decisions will be truly representative in nature and reflect the totality of the people’s will. It is precisely this general participation in the formation of the political will of Parliament—a process emanating from general intellectual and political discussion and argumentation—that legitimates the inherent right of a parliamentary majority to decide issues of public policy. One process cannot be separated from the other. Th is principle applies especially to those core functions of the Parliament, particularly the right of members to participate in the process of legislation and to pass laws dealing with the budget. Even deliberations within the type of committee established by § 4 (6) of the 1984 and 1985 budget laws are subject to this principle. Parliament may not surrender its right to deliberate by transferring certain aspects of budgetary planning to a small committee operating in secret. . . . 4. The principle of complete participation of all—including individuals and parliamentary parties—is not merely an axiom but is also an inalienable principle of a representative parliamentary democracy. A parliamentary majority thus cannot do away with this principle, not even within the framework of its admitted authority over matters of procedure. . . . 5. . . . To be sure, the Court’s majority underscores the importance of the equal participatory rights of all parliamentary parties. But the majority treats this idea as a notion or a rule, and not as an inalienable principle essential for the structuring of the representation of the people. Th is is the reason the Court . . . permits exceptions to the principle based on the factual considerations set forth in the majority decision. Admittedly, the Court tries to limit these exceptions so as to be able to restrict them to “narrowly limited exceptions.” But . . . these limitations are so general and open-ended . . . as to permit . . . a parliamentary party to be excluded from participating in parliamentary deliberation merely on the basis of unsubstantiated conjecture. The situation here clearly illustrates the arbitrariness of the Bundestag’s action. The Bundestag has never charged the representative or the parliamentary party requesting participation in its committee deliberations with failing to maintain secrecy in similar cases; nor did the Bundestag declare with certainty that the representatives from the Green Party would not maintain secrecy in the deliberations at hand. According to the oral arguments, neither the representative nor the parliamentary party was specifically asked if they were ready to maintain secrecy concerning the budgetary matters in question and the agreements already made in

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connection with these matters. The majority’s general distrust of the Green Party and the utterance of one of its members immediately following the 6 March 1983 federal elections that she felt no obligation to maintain confidentiality about information to which she had access—an utterance contradicted within the Green Party—apparently was enough. Without any further explanation and without any procedural measures, a path was chosen for deliberating on these budgetary plans that was . . . calculated to exclude the parliamentary party from participating in the deliberations. By proclaiming this procedure constitutional, the Court indicates both its recognition of the authority of a given parliamentary majority to dispose of the principle of universal participation and how little validity it attributes to this principle. Ultimately, the maxims of trust and suspicion suffice to determine when and how one will depart from it. In my opinion this is not right.

∂

Although it lost the Green Party Exclusion Case, the party could take some comfort in the strong dissenting opinions of Justices Mahrenholz and Böckenförde. These opinions laid the basis for other constitutional challenges against practices the Green Party considered equally discriminatory. In fact, the Green Party won a victory six months later when the Constitutional Court struck down a major provision of a tax statute affecting the fi nancial status of political parties.21 Justice Böckenförde wrote a separate opinion in the case saying he would have gone further to protect small parties like the Green Party. In his view, legislation that bolsters the “oligarchical” and “careerist” elements of the established parties erodes Parliament’s representative character.22 Today, the Green Party is very much a part of the political establishment. In the early 1990s the Green Party transformed itself from an “anti-party” concerned mainly with ecological issues into a responsible party Fraktion of the left , pragmatic enough to enter coalitions with the spd in several Land governments and broad enough to threaten the position of the Free Democratic Party (fdp) as the major third force in German politics. Th is process of political maturation and rising influence reached new heights in 1998 when the Green Party won more than 6 percent of the national vote, allowing it to enter into a coalition government with Gerhard Schröder’s Social Democrats. Most prominently, the Green Party’s parliamentary leader Joschka Fischer gained widespread respect as vice chancellor and foreign minister in the Schröder government. Four years later, the Green Party’s dramatic showing, with nearly 9 percent of the national vote, salvaged the government’s reelection hopes. The Green Party’s transition to a mainstream force in German politics was cemented by its historic victory in BadenWürttemberg’s state parliamentary elections in March 2011. The Green Party edged out the spd on the left , enabling them to lead a Green/spd coalition in the state, which had been governed by the center-right cdu and coalition partners for nearly six decades.

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In Surveillance of Members of Parliament (2009), another case involving the rights of the Green Party while in opposition in the Bundestag, the Court continued its tradition of protecting the interests of parliamentarians—especially those aligned with minority parties—as a feature of the Basic Law’s commitment to democracy. The suspicion in which the Green Party was held in the years after fi rst entering Parliament seems to have endured in some quarters, despite the party’s assimilation and success. After the demise of the historic spd/Green federal government, the Green Party assumed the role of parliamentary opposition to Chancellor Angela Merkel’s newly elected grand coalition (cdu/csu-spd). In 2006 members of the Green Party Fraktion in the Bundestag came to believe that, like members of an extreme-left opposition party, the German intelligence ser vices had them under surveillance. Stunned by this possibility, several Green Party parliamentarians presented the government with formal questions (referred to as kleinen Anfragen) seeking information about the nature of the surveillance, the information that was being gathered, and how the intelligence community was using the information it collected. The government refused to answer the questions, arguing that to do so would reveal—and jeopardize—the practices, strategies, methods, and current intelligence of Germany’s security ser vices. The Green Party complained to the Constitutional Court about this snub in an Organstreit proceeding. The Second Senate held that surveillance of parliamentarians posed unacceptable risks to their constitutionally guaranteed independence (Article 38 (1) and their work within the constitutionally reinforced political parties (Article 20 (2)). Th ese risks, the Court concluded, were exacerbated by the government’s refusal to provide answers to the kleinen Anfragen. In Green Party Exclusion the Court confi rmed that parliamentarians—especially those from minority Fraktionen—have the right to demand and receive information from the government. The Court reiterated that principle in Surveillance of Members of Parliament while recognizing that Parliament’s right to information may be limited for security purposes. But the Court concluded that the security concerns raised by the government were not adequate to justify its refusal to provide the information requested by the Green Party, which “would not lead to the revelation of details about the practices, strategies, methods, and gathered information” of Germany’s intelligence community. 23 Independents and Independence in the Bundestag. In the Wüppesahl Case (1989) the Court was asked to rule on the rights of an independent representative in the Bundestag.24 The Second Senate recognized the constitutional significance of parties in the Basic Law’s parliamentary and democratic scheme and acknowledged some measure of constitutional advantage for the Fraktionen in the Bundestag. But the Court insisted that all parliamentarians enjoy a core set of competences, characterized by the principles of free and equal parliamentary mandates. These principles ensure that every Bundestag deputy is a representative of the whole German people, equal to every other deputy (without regard to party membership), and responsible only to

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his or her conscience (not taking orders from his or her party).25 Article 38 (1) of the Basic Law provides the bulwark for these principles. In light of the dominant role played by parties in Germany’s democracy, commentators have explained the practical consequence of these principles in the following terms: “[a]s a matter of fact [parliamentarians] mostly adhere to their party’s line, but legally they are not obliged to do so.”26 Nonetheless, in Wüppesahl the Court ruled that the effective fulfi llment of these principles requires the parliamentary parties to grant independents access to the Bundestag’s legislative processes. The free and equal mandate enjoyed by German parliamentarians expresses some of the most fundamental precepts of representative democracy under the Basic Law. Former Federal Constitutional Court Justice Helmut Steinberger emphasized that Bundestag deputies are the chief agents of representative legitimacy in the German system. As such, it is essential that they enjoy “complete freedom of discussion and decision.”27 Parliamentary Committees and the Bundestag. As the litigation stirred up over issues of committee participation suggests, legislative committees are the immensely important work horses of the Bundestag. Orga nized by subject matter, they are empowered to hold hearings on matters referred to them and to prepare bills for parliamentary consideration. The Basic Law itself requires several permanent committees, including, inter alia, the Committees on Election Scrutiny (Article 41), Foreign Affairs and Defense (Article 45a), Petitions (Article 45c), Judicial Selection (Article 95), and the Eu ropean Union (Article 45). The Basic Law also creates freestanding committees, like the Mediation Committee “for joint consideration of bills” between the Bundestag and the Federal Council of States (Bundesrat; Article 77 (2)).28 The Bundestag’s Rules of Procedure govern the membership and the conduct of these committees. Under Rule 12 the parliamentary parties appoint committee chairs and members proportionate to the parties’ strength in the chambers as a whole. Thus, the parties play a crucial role in determining who gets appointed to which committees. In the aftermath of Wüppesahl, every member of the Bundestag is entitled to serve on at least one committee, and if he or she is an independent, the Bundestag’s president is authorized to make the committee assignment. Under Rule 57 (2), however, an independent member of a committee is not entitled to vote. 29 In the Mediation Committee Seat Assignment Case the Federal Constitutional Court considered the Bundestag majority’s prerogative to manipulate the rules for calculating committee membership. The case highlighted the tension between the competing principles of democracy present in each of the preceding cases. For example, principles of representation compete with principles of democratic governance. The former consists of free and equal elections and the requirement that subunits of Parliament mirror the composition of the Bundestag as a whole (Spiegelbildlichkeit). The latter consists of majority rule. To the benefit of the Bundestag’s minority parties and independent members, the following case once again prioritized the principle of representation.

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5.3 Mediation Committee Seat Assignment Case (2004) 112 BVerfGE 118 [Following the 2002 national elections the center-left parties narrowly retained a majority in the Bundestag, allowing spd Chancellor Gerhard Schröder’s government to remain in office for a second term. Among the newly elected Bundestag’s fi rst acts was the distribution of seats in the parliamentary committees. Largely due to the thin margin between the majority and opposition parties in the Bundestag (the spd/Green coalition enjoyed a mere nine-seat advantage), the traditional methods of calculating the partisan composition of Bundestag committees often would have assigned an equal number of seats to the majority and the opposition. For example, the sixteen seats in the powerful Mediation Committee would have been shared equally by the majority coalition and opposition parties. In light of this result the Bundestag majority sought to implement a novel accounting scheme in order to ensure that the composition of committees would reflect its thin majority in the Bundestag’s plenum. In the Mediation Committee this corrective procedure would have added one seat to the majority’s representation on the committee at the expense of one of the opposition’s seats. In an Organstreit proceeding the opposition objected to this allocation of the Mediation Committee’s seats, asserting violations of the parliamentary minority’s constitutional rights (Articles 38 (2), 40 (1), 21 (1), 20 (2), and 77 (2)). The Court gave only marginal priority to the principles of representation and majority rule on which the government relied in defending its proposed unorthodox allocation of seats.]

∂

Judgment of the Second Senate. . . . B. The admissible application is successful to the extent indicated. . . . [The Court began by emphasizing a number of fundamental principles. It reiterated the principle that Bundestag committees must conform to the principle of Spiegelbildlichkeit. The Court explained that this principle derives from twin representational values grounded in the Basic Law: the freedom and equality of members of the Bundestag. On the one hand, Article 38 (1) [2] of the Basic Law makes every member of the Bundestag “a representative of the whole people” and, therefore, equal. On the other hand, the same provision establishes that deputies are not bound by orders or instructions, but are “responsible only to their conscience.” The Court concluded that an individual Bundestag member’s freedom and equality are not compromised by his or her participation in a Fraktion. Th is rule, the Court explained, is intended to ensure that parliamentary committees replicate on a smaller scale the composition of the plenum in its concrete, organizational form characterized by the Fraktionen. It makes it possible for the committees’ tasks to be fulfi lled in a manner that satisfies the

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requirement of equality. The Court then noted that departures from these fundamental principles are permitted only if there are special grounds. The constitutional requirement to ensure a functioning Parliament is one such acceptable ground.] I. 1. e. Section 12 and § 57 (1) [1] of the Rules of Procedure of the Bundestag thus at the same time implement a derogation, required by the constitution, from the majority principle, which, according to Article 42 (2) [1] of the Basic Law, applies to decisions of the Bundestag, but, according to the second sentence of that provision, is open to other provisions of the Rules of Procedure of the Bundestag. The allocation of committee seats according to the proportional strength of the Fraktionen requires, since only whole seats can be distributed, the use of counting procedures that can lead to discrepancies in the allocation result. The Federal Constitutional Court has accepted the parliamentary practice, pursuant to which the counting procedures for a resolution under § 57 (1) of the Rules of Procedure of the Bundestag also may be selected specifically in the light of whether the chosen procedure reflects the political majority supporting the federal government in the Bundestag. Before this case, it was not necessary to consider whether the constitution justified changes to the conventional counting procedures for establishing Bundestag committees, perhaps by means of a corrective factor. After all, the Bundestag has it in its hands to increase or reduce the number of seats in a committee and thereby avoid stalemates between the governing majority and the opposition minority. In the case of the Mediation Committee, this parliamentary practice is closed to the Bundestag without the cooperation of the Bundesrat. The question therefore arises more clearly here as to how far the need for a replication of the government’s parliamentary majority is capable of influencing the principle of representation and proportionality required under Article 38 (1) of the Basic Law. That question cannot remain unanswered, because it is specifically the allocation of seats on the Mediation Committee, which is at the center of the present Organstreit proceeding. That is because, even though the Mediation Committee is not a committee of the Bundestag, the principle of proportional consideration according to Fraktion strength also applies. 2. The Mediation Committee is a permanent and joint subsidiary organ of the Bundestag and the Bundesrat provided for in the constitution. The aim of its work is to bring a specific legislative procedure to a positive conclusion either by avoiding the objection of the Bundesrat or by obtaining its consent, initially withheld, to a Bundestag enactment. Th is is to be achieved by seeking a reconciliation of interests at a higher political level and from overriding perspectives. In that respect the Mediation Committee is the institutional consequence of the fundamental decision of the framers of the constitution to involve two decision makers, the Bundestag and the Bundesrat, in federal legislation. It opens up the legislative process, in a defi ned set of circumstances, to institutional negotiated solutions.

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[The Court then outlined the unique characteristics that, to the mind of the majority of the Second Senate, counseled against permitting the Bundestag majority to recreate its majority in the composition of the Mediation Committee. The Court explained that the Mediation Committee was meant to facilitate negotiations between a likeness of the whole Bundestag, including its representative character as expressed by the proportional strength of parties in the Parliament, and representatives of the Bundesrat (Federal Council of States). The Court noted that the Mediation Committee’s independence and significant role in the legislative process distinguished it from the Bundestag committees over which the parliamentary majority exercised greater discretion.] It follows from all the foregoing that the Members of the Bundestag on the Mediation Committee must represent the relative political strengths in the plenum of the Bundestag according to the Spiegelbildlichkeit principle. Otherwise the Bundestag as a whole would be forced into the constraints of consensually predetermined procedural decisions on which it would not have had an influence satisfying the requirement of equality in accordance with Article 38 (1) of the Basic Law, even though this would not be justified by special objective reasons. II. The Spiegelbildlichkeit principle, which therefore also applies to the allocation of the Bundestag seats in the Mediation Committee, does not apply without restriction. It must, in the event of confl ict, be reconciled with the principle of the formation of a stable parliamentary majority. The status of deputies and Fraktionen, which conforms to the requirement of equality, permits differentiation where special reasons exist. The requirements of equality, which apply to participation in the process of parliamentary formation of opinion, are limited by the constitutional requirement of safeguarding the ability of Parliament to function and by the democratic principle of majority rule (Article 42 (2) [1] of the Basic Law). Where the Spiegelbildlichkeit principle and the principle that in substantive decisions the parliamentary majority supporting the government must also be able to prevail in smaller-scale replications of the Bundestag come into confl ict, then both principles are to be brought into a careful balance. 1. The majority principle is one of the sustaining principles of liberal democracy. It is true that “the majority” is not furnished with any special rights, either in the Basic Law or in the Rules of Procedure of the Bundestag, and forms a “political,” not a legal, category only constituting itself each time from case to case. But the majority principle enshrined in Article 42 (2) [1] of the Basic Law is recognized in constitutional law. According to that provision, resolutions of the Bundestag are to be passed by a majority of the votes cast; exceptions—unless provided for by the constitution itself—may be permitted by the Rules of Procedure with respect to elections. The principle of proportional representation ceases as a right to equality and protection of minority rights at the point, so to speak, where decisions are made on the substance of a matter. Only in this way can the majority of the representatives

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prevail so that the formation of the democratic will can manifest itself as the will of the majority. The Basic Law not only regulates the principle of majority rule, but also seeks to guarantee a stable parliamentary majority in keeping with the political forces that form the government. After the experiences with the presidential cabinets of the Weimar Republic, which governed without a regular parliamentary majority from the time of the Brüning government onward, the Basic Law sought to avoid such crippling discord between Parliament and government as far as possible. Evidence of that can be seen primarily in the limitation of the Bundestag to a constructive vote of no confidence (Article 67 (1) of the Basic Law), but also in the framing of the vote of confidence (Article 68 of the Basic Law). Smaller-scale replications of the Bundestag must therefore comply, in terms of personnel, with the Spiegelbildlichkeit principle, although deviations are justified to a limited extent if that is the only way of enabling the smaller-scale body to reach substantive decisions that have a realistic prospect of corresponding to the will of a political “[g]overnment majority” in the plenum. Th is applies without prejudice to the question as to whether the majority principle possesses the same influential force as the principle of representation from which public authority derives its legitimacy. 2. The function and tasks of the Mediation Committee do not require a mandatory orientation of the allocation of seats on the committee to the majority principle to such an extent that the Spiegelbildlichkeit principle would have to give way in case of doubt. The establishment of the Mediation Committee is aimed at the negotiation of compromises between the legislative bodies; this succeeds if the political opinions of key relevance to a given legislative project can be reconciled. In that regard, the normative form of the mediation procedure does not preclude the political opposition at the federal level from having a majority on the committee in certain cases. Th is ensues from a comparison of the structure of the Bundesrat and Bundestag seats and from the rules on the voting procedure in the committee. [In limiting the importance of the Bundestag’s majority in the Mediation Committee, the Court noted that the Bundesrat’s contribution to the composition of the Mediation Committee also did not seek to replicate that body’s majority. The emphasis of the Mediation Committee’s work, the Court explained, is on open and free negotiations. Th is does not require that the committee engage in conclusory activity of the kind that must respect the principle of the majority rule. Finally, the Court noted that the Mediation Committee’s rules support the conclusion that it need not replicate a governing majority.] In view of the special position and composition of the Mediation Committee, it does not follow that a careful balance between the Spiegelbildlichkeit principle and the majority rule principle is superfluous. Rather, the respondent was obliged to draft its resolution under § 57 (1) of the Rules of Procedure of the Bundestag in such a way that, even with a replication of the chancellor’s Bundestag majority (see Article 121 of the Basic Law), the allocation of seats according to the proportional strengths of

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the Fraktionen, required by § 12 of the Rules of Procedure of the Bundestag, is preserved as far as possible. [The Court concluded that the majority’s process for allocating party seats on the Mediation Committee generally satisfied the constitutional requirement of the principles of representation. Nonetheless, the Court found that, in the details, the majority’s proposal significantly departed from the Spiegelbildlichkeit principle: “The present allocation of seats . . . no longer reproduces the actual proportions of political strength in the plenum of the Bundestag to an acceptable degree.”] . . . The process therefore contradicts the principle that the sovereign expression of will embodied in the election result must be replicated as precisely as possible in Parliament and the bodies derived from it. The solution chosen by the respondent, namely assigning the strongest Fraktion in the Bundestag an additional seat on the Mediation Committee is fundamentally incompatible with the internal law of Parliament embodied in this respect in § 12 of the Rules of Procedure of the Bundestag. The distribution result challenged by the applicant cannot be justified with any of the usual methods of calculation; the “corrective factor” is contrary to the wording and meaning of § 12 [(1)] of the Rules of Procedure of the Bundestag. Th is inadequacy of proportionality expresses itself in the discrepancy between the number of a Bundestag Fraktion’s seats on the Mediation Committee and its share of the total votes cast. [Justices Osterloh and Gerhardt joined a dissenting opinion. Justice Lübbe-Wolff wrote a separate dissenting opinion. The dissenters shared separation of powers concerns over the propriety of the Court’s instructions to the Bundestag for the resolution of the allocation issue. Justices Osterloh and Gerhardt objected that the majority of the Second Senate “abridged the scope of the Bundestag’s autonomous discretion in matters of its internal rules and submitted the Bundestag to a too far-reaching internal control via the Federal Constitutional Court.”]

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The Official Propaganda Case serves as yet another example of the limits the Federal Constitutional Court has imposed on the authority of the governing majority. As it had to a qualified degree in the other cases, the Court also invoked representational principles in limiting the authority of the parliamentary majority. 5.4 Official Propaganda Case (1977) 44 BVerfGE 125 [During the federal election campaign of 1976, the German Press and Information Office and the publications divisions of several federal ministries distributed millions of leaflets, pamphlets, and brochures disclosing the records of

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and benefits conferred by various governmental agencies. Although some of these publications were informational (e.g., ser vice publications and the text of laws and treaties), many promoted the interests of the spd/fdp coalition government. In addition, funds allocated to the publication departments of various agencies were used to take out advertisements in prominent magazines and newspapers, listing the accomplishments of the incumbent government. For example, between 24 May and 26 July 1976, the news magazine Der Spiegel carried a government-sponsored advertisement, three to five pages in length, under the caption, “All in all, this government has brought you more freedom.” The general secretary and Executive Council of the cdu challenged the validity of these expenditures in an Organstreit proceeding before the Federal Constitutional Court. The following extract focuses on the Court’s discussion of parliamentary democracy in its ruling fi nding the public relations measures taken by the government during the 1976 federal election campaign to be unconstitutional. The expenditures were invalidated on three principal grounds: 1) they offended the idea of democracy within the meaning of Article 20, 2) they violated the principle of equality among political parties under Article 21, and 3) they offended the principle of free and equal elections under Article 38.]

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Judgment of the Second Senate. . . . C. I. Our consideration of Article 20 (1) and (2), taken together with Article 2 (2) guaranteeing liberty rights, leads to these conclusions: 1. In the kind of free democracy designed by the Basic Law for the Federal Republic of Germany all public authority emanates from the people by means of elections and voting and is exercised by specific organs of legislation as well as by executive and judicial authorities (Article 20 (1–2)). . . . 2. Elections can confer democratic legitimation in the sense of Article 20 (2) only if they are free. Not only must the actual act of casting the ballot remain free of coercion and undue pressure as stipulated by Article 38 (1) of the Basic Law, but the voters must be able to form and utter their opinions freely and openly. The democratic basic order established by the Basic Law lays down the constitutional conditions for a free and open process of forming the popu lar will. Th is is accomplished especially through numerous constitutional guarantees of freedom and equality as well as through institutional and procedural mechanisms such as the fundamentally public nature of Bundestag and Bundesrat meetings (Articles 42 (1) and 52 (3) of the Basic Law) or the promulgation of enacted laws (Articles 76, 77, and 82 (2)). . . . 4. The integrity of the fundamental act of democratic legitimation—that is, the election of parliamentary representatives—must be ensured. Th rough the act of voting in the sense intended by Article 20 (2) the formation of the popu lar will takes place, rising from the people to the constitutional organs, and not the other way around. Admittedly, the conduct of these constitutional organs has a rather strong

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effect on the formation of the will and opinion of the voters—conduct that is itself instrumental to the voters’ decision. Yet the constitutional organs may not in their official capacity try to influence the formation of the popu lar will by employing additional special measures during elections in order to gain control over these organs. They are constitutionally barred from identifying themselves, as constitutional organs, with political parties during election campaigns and from supporting or opposing political parties with public funds. They are particularly forbidden from influencing the decision of voters through advertising. In addition, the constitutional principle that limits the tenure of the Bundestag and the federal government does not permit the current federal government in its capacity as a constitutional organ to seek reelection, as it were, and to promote itself as the “future government.” Of course, this does not prevent a member of the federal government from entering the election campaign on behalf of a political party in a nonofficial capacity. 5. The Basic Law as a democratic governmental structure provides that basic political decisions be reached by majority rule (citing Articles 42 (2), 63 (2–4), 67 (1), 52 (3), and 54 (6)). . . . Only if the majority emerges in the free and open process of forming the popular will and public opinion—a process that requires constant renewal and in which all citizens of voting age share equally—does the decision of the majority . . . constitute the will of all. Only then does the decision generate a binding commitment for all in accordance with the idea of free self-determination for all citizens. The majority must keep the common good in mind during the decision-making process, particularly the rights and interests of the minority, whose chances of becoming a majority must neither be taken away nor curtailed. . . . Basically, all citizens, regardless of their political convictions or affi liations, bear the burden of fi nancially supporting the state. These fi nancial resources are also entrusted to the state for use on behalf of the common good. As a social, constitutional state the Federal Republic serves this purpose in many different ways, especially by supporting parts and groups in the population of a pluralistic society and its most diverse interests. . . . But this commitment to serve diverse groups does not extend to a politically vital situation, such as a parliamentary election, if the funds and potential supplied and generated by the general public are used to favor or disfavor one political party or candidate over others. The Basic Law tolerates extralegal inequalities of citizens and their political groups in the process of forming popu lar political opinion and the people’s will that culminates in the act of voting. Yet, it bars the state from taking sides during an election campaign in order to influence the competitive relations among the political powers. Organs of the state must serve everyone and remain neutral during an election campaign. . . . Justice Rottmann, dissenting. I dissent from the limitations imposed on federal government activities during the parliamentary election campaign that the majority derives from the principle of democracy and the constitutional principle of equal opportunity for political parties. . . .

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I. The senate bases its ruling on an ideal of parliamentary democracy that fails to do justice to the structure of the political party system in the Federal Republic. Furthermore, it does not sufficiently take into consideration constitutional reality since the founding of the Federal Republic. Democracy as outlined by the Basic Law is a party democracy. Political parties enjoy a legally privileged position under Article 21 (1) of the Basic Law. Article 21 (1) raises them to the level of constitutional institutions and recognizes them as active political units that our modern democracy needs to unite voters in politically active and operational groups, thus giving citizens the possibility of influencing political events. Consequently, political parties constitute a factual monopoly in the creation of constitutional organs at the federal and state levels. Without them . . . the “creative organs” of the Federal Republic cannot function, and political offices in a modern mass democracy cannot be fi lled. [Justice Rottmann went on to describe the party state under the Basic Law as having the following characteristics: 1) Political parties nominate candidates to Parliament and effectively elect the chancellor. 2) The chancellor and his or her cabinet are, respectively, the party chair and either top party functionaries or members of parliament. According to Justice Rottmann, the consequence of these two attributes of the party state is that the federal government functions as the executive committee of the ruling coalition of parties. 3) While the government has an obligation to the entire state, Rottmann argued, it actually seeks to implement its party platform. In so doing, the majority party or coalition uses its platform as one of several concepts of the common good that the people have already approved through national elections. Thus, the will of the people authorizes the ruling coalition to implement and defend its platform against the contrary efforts of the minority parties. The second prong of the dissent focused on the federal government’s past practice of using official resources during election campaigns. Rottmann traced the history of election campaigns since the founding of the Federal Republic. He then noted that the chancellor and most cabinet ministers have campaigned not only as party members but also in their official capacities, using resources of their office to do so. Hence, the idea that the federal government remains neutral during a campaign is a novel idea. Rottmann viewed the practice of using government resources to achieve reelection as an essential and characteristic part of political life as it has developed under the Basic Law.] i. . . . The Federal Constitutional Court cannot simply change past practice without prior announcement of guidelines. It cannot make changes by deriving standards from the Basic Law and calling them constitutional principles that have supposedly always restricted the actions of the federal government. Constitutional reality contradicts this. In truth, in the almost thirty-year history of the Federal Republic, po-

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litically active persons have not gleaned these constitutional restrictions on the federal government from the Basic Law. In the fi nal analysis, nobody had any knowledge of these restrictions, with the result that no federal chancellor, no federal government, no Bundestag, no political party could be familiar with these limitations, which are supposedly required by the constitution.

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Parliamentary Ossification. The Federal Republic’s parliamentary system has been subject to criticism on and off the bench. Recall Justice Böckenförde’s reference to the “oligarchical” tendency that he observed in the established parties,30 a tendency that a former president of the Federal Constitutional Court believed the Second Senate had reinforced in the Legislative Pay Case (1975).31 In 1992, Federal President Richard von Weizsäcker mounted a slashing attack on Germany’s established parties, faulting them for their ossification and lack of creativity.32 Another leading public official spoke of the “representational deficit” affl icting the German Bundestag and advocated more participatory democracy including institutional reforms such as the ballot initiative and referenda.33 Indeed, the Green Party owes much of its early success, particularly among the young, to the grassroots character of its movement as well as to its support of such reforms and other citizens’ initiatives (Bürgerinitiativen). As interpreted by the Federal Constitutional Court, however, the principle of representative, or indirect, democracy embodied in Article 20 (2) would seem to exclude any institutional reform at the national level that would interfere with Parliament’s exclusive control over legislation.34 The language of Article 20 (2) provides for the exercise of state authority “by the people through elections and other votes and through specific legislative, executive, and judicial organs.” Some constitutional scholars suggest that a liberal interpretation of the term “voting” in this provision would permit some forms of direct democracy.35 They believe that referenda on fundamental political issues and even the popu lar ratification of constitutional amendments would be good political therapy for a body politic not altogether satisfied with a sometimes stumbling and indecisive Parliament.36 The prevailing view, however, is that the adoption of plebiscitary devices at the national level would require an amendment to the Basic Law. The Joint Committee of the Bundestag and Bundesrat, a standing body of representatives from both legislative chambers that was added to the Basic Law in an amendment from 1968, seriously considered changing the constitution to permit some forms of direct democracy at the federal level.37 But the reform lacked the two-thirds vote required to amend the Basic Law. German democracy remains a representative, and primarily parliamentary, system. It is, however, a parliamentary system colored by two distinct factors. On the one hand, political parties play a significant role. Th is will be considered in more detail in a subsequent section. On the other hand, the preceding cases establish that it is not a blunt system for realizing the preferences of the parliamentary majority. Instead, the Basic Law makes important concessions to the role of minority parties and independents.

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elections and voting The major principles governing the German electoral process are set forth in the Basic Law. As with the principles of parliamentary democracy, Articles 20 and 38 are the core of the constitution’s electoral regime. Article 20 (2) provides that “the people [shall exercise all state authority] by means of elections and voting.” Article 38 (1) states that parliamentary representatives “shall be elected in general, direct, free, equal, and secret elections,” principles that also bind the states under the terms of Article 28. Article 38 (2) confers the right to vote on all citizens who have attained the age of eighteen years. Article 39 (1), fi nally, provides for legislative terms of four years. The Maastricht Treaty Case (1993; no. 5.5) bridges nearly all the concerns of this chapter. It is a comprehensive declaration of the meaning of German parliamentary democracy. As noted in Chapter 6, pursuant to the Maastricht Treaty member states were able to transfer their sovereign powers to the newly-created European Union (eu). The assignment of such powers to the eu, however, implicates certain inviolable principles of democracy secured by the Basic Law. In its Maastricht Treaty decision the Court held that principles of democracy and free elections do not bar German membership in a supranational interstate community in which decisions are made at a level removed from the national German electorate. Nevertheless, the transfer of such powers must not detract from the right of German citizens to participate in the national lawmaking process in the most prominent way provided by the Basic Law, namely, by voting. 5.5 Maastricht Treaty Case (1993) 89 BVerfGE 155 [The constitutional complaint asserted a violation of Article 38 of the Basic Law, which confers on German citizens an equal right to vote for their parliamentary representatives. Consistent with the core principle of democracy, citizen-voters participate in the exercise of state authority through their parliamentary deputies (Article 20 (2)). It was argued that, to the extent that this authority has been transferred to a supranational institution beyond the control of German legislators, citizen-voters have lost their right to participate in the national legislative process. In short, citizens’ ability to influence national policy by way of voting has been circumvented. Additionally, it was argued that the eu itself suffers from a democratic deficit, for the European Parliament lacks authentic lawmaking power and Germany’s deputies play no significant role in lawmaking at the European level. The Court rejected the complaint but set out strict limits for further European integration in order to preserve the Basic Law’s fundamental democratic commitment.]

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Judgment of the Second Senate. . . . III. B. 1. The fi rst complainant has shown that the Act of Accession may violate his equal right to vote as guaranteed by Article 38 (1) of the constitution. a. Article 38 (1) and (2) guarantee to all Germans entitled to vote the subjective right to participate in electing Bundestag representatives. The power of the state emanates from the people through the voting process. The Bundestag then exercises that power as a legislative body, choosing the federal chancellor and controlling the government. Article 38 does more than ensure that citizens have the right to elect the Bundestag and that constitutional principles will be protected in the election process. It also extends this safeguard to the fundamental democratic content of that right: the fact that any German citizen who is entitled to vote has the right to participate in the election of representatives to the Bundestag also means that he or she has the right to participate in the legitimation of state power and to influence its exercise. . . . If the Bundestag relinquishes its duties and responsibilities, especially as to legislation or the election and control of others who exercise state power, then this affects matters within the scope of Article 38 and its democratic content. Article 23 (1) of the Basic Law enables the federal legislature (under specified conditions) to grant the European Union the right to independent exercise of sovereign powers, up to the limits imposed by Article 79 (3) (see Article 23 (1) [3]). The legislature created this constitutional provision by amendment to the constitution specifically for the purposes of European integration and its progress. In doing so, it also defi ned the substance of the right guaranteed by Article 38. Where Article 23 applies, Article 38 forbids the weakening of the legitimate state power gained through an election; it also forbids any weakening of the voters’ influence on the exercise of such power by a transfer of power so extensive that it breaches the democratic principle declared inviolable by Article 79 (3) in conjunction with Article 20 (1) and (2). The complainant’s right arising from Article 38 . . . , therefore, can be infringed if the exercise of the responsibilities of the Bundestag is transferred to an institution of the European Union or European Communities so extensively that the minimum requirement of Article 20 (1) and (2) (in conjunction with Article 79 (3)) is violated, and the requirements of legitimation of the sovereign power are not met. . . . C. To the extent that the constitutional complaint fi led by the fi rst complainant is admissible, it is unfounded. In this case, when examining the grant of sovereign powers to the European Union and the communities within it, the Federal Constitutional Court can apply only the criterion of the guarantees within Article 38 of the Basic Law. Those guarantees are not violated by the Act of Accession. . . . The functions of the European Union and the powers granted to implement these functions are regulated in a sufficiently foreseeable manner; because the treaty reflects the principle of limited individual powers, the European Union does not have the power to extend its own authority, and the claiming of additional functions and powers depends on supplementing or amending the treaty; thus it is subject to the consent of the national parliaments. . . .

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I. 1. The right granted to eligible voters by Article 38 of the Basic Law to participate in the legitimation of state power and to influence its exercise by voting precludes the possibility, within the scope of Article 23, of the right being weakened through transferring functions and powers of the Bundestag in such a way as to violate the democratic principle. . . . 2. Part of the inviolable content of the democratic principle under Article 79 (3) of the Basic Law is that the exercise of state functions and powers is derived from the people, and those who exercise state power are fundamentally responsible to the people. Th is relationship of responsibility is established in varied ways, not just one form. The decisive factor is that a sufficiently effective proportion or level of legitimation be achieved. a. If the Federal Republic of Germany becomes a member of a community of states entitled to act on its own in sovereign matters, and if that community is given the right to exercise independent, sovereign powers (both of which are expressly allowed by the constitution, for the purpose of creating a unified Europe), then democratic legitimation for these purposes cannot be produced in the same way that it is for a national order, governed uniformly and conclusively by a state constitution. If sovereign rights are granted to international institutions, then the representative body elected by the people (the Bundestag) and the voting populace necessarily lose some influence over the process of forming the political will and making political decisions. Any entry into an international community results in the members of the community being bound to adhere to community decisions. [In the following passages the Court examined the Maastricht Treaty in the light of the Basic Law’s new Article 23. The Court found that the Bundestag has not been frozen out of the eu’s process of making policy. It held that since the eu is an organization of states rather than a federal state, the Bundestag retained sufficient control over its functions and powers to satisfy the constitutional commitment to the principle of democracy. In the end, the Court suggested that the legitimacy of eu policy will depend on maintaining a link between German voters, the Bundestag, and the European Parliament.] b. Thus, the democratic principle does not prevent the Federal Republic of Germany from becoming a member of a community of states organized on a supranational basis. Nevertheless, it is a precondition for membership that the legitimation derived from the people be preserved within the alliance of states. 1. According to its self-defi nition as a union of the peoples of Europe, the European Union is a federation of states seeking dynamic development. If it is to carry out sovereign tasks and exercise sovereign powers toward that aim, the national peoples of the member states must fi rst, through their own national parliaments, provide the democratic legitimation for such action. At the same time, as the functions and powers of the European Union grow, it is increasingly necessary for the people of individual states to be represented within a European Parliament that supplements the democratic legitimation and influence

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gained through the national parliaments. Th is will form the basis of democratic support for the policies of the European Union. The establishment of Union citizenship by the Maastricht Treaty has formed a legal bond between the nationals of the individual member states. Th is bond is intended to be lasting and, though it does not have the strength of common nationality that unites a single state, it provides the legally binding expression of an existing, de facto community. The influence flowing from the citizens of the Union can eventually provide the democratic legitimation of European institutions to the extent that the following conditions are met on the part of the peoples of the European Union. If democracy is to be more than merely a formal principle of accountability, it depends on the presence of certain pre-legal conditions, such as continuous free debate between opposing social forces, interests, and ideas. In the course of such debate political goals are clarified and changed, and public opinion emerges as a precursor to the forming of the political will. For this to happen, it is essential that the institutions that exercise sovereign power and implement political objectives engage in a decisionmaking process that is clear and comprehensible, and that citizens entitled to vote can communicate in their own language with the sovereign authority to which they are subject. . . . 2. Within the federation of states that constitute the European Union, democratic legitimation necessarily emerges as information about the activities of the European institutions flows back through the parliaments of the individual member states. Democratic legitimation within the structure of the Union is also provided through the election of a European Parliament, chosen by the citizens of the member states, increasing as the European nations grow closer together. Already, the legitimation provided by the European Parliament has a supporting effect. Th is effect could become stronger if the European Parliament were elected by electoral rules consistent in all member states, in accordance with Article 138 (3) of the ec Treaty, and if the Parliament’s influence on the policies and legislation of the European Union were to increase. The important factor is that the democratic bases of the European Union continue to grow in step with integration, and that as integration proceeds, a democracy thrives in the member states. . . . If the peoples of the individual states continue to provide democratic legitimation through their national parliaments, then the principle of democracy limits the extension of the European Community’s powers and functions. The origin of state power in each member state is the people of that state. It follows, then, that the Bundestag must retain functions and powers of substantial importance. . . . 3. Since . . . enfranchised Germans exercise . . . their right to participate in the democratic legitimation of institutions and agencies entrusted with power by voting in elections for the Bundestag, then the Bundestag must make decisions about German membership in the European Union, and on its continuation and development. Accordingly, Article 38 of the Basic Law is breached if an act opens up the German legal system to the application of the law of the supranational European Communities

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if that act does not establish with sufficient certainty what powers are transferred and how they will be integrated. If it is not clear to what extent and degree the German legislature has assented to the transfer of the exercise of sovereign powers, then it will be possible for the European Community to claim functions and powers that were not specifically mentioned. That would be a general authorization and therefore a surrender of powers, something against which Article 38 protects.

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Rules Governing Elections. Germany’s original electoral laws sought to achieve political stability and fair representation. To this end, German lawmakers adopted a mixed system of political representation. They also sought to prevent the rise of splinter parties by requiring a political party to meet, as a condition for entering the legislature, a 5 percent threshold of electoral success. In addition, before gaining access to the ballot, new parties had to produce evidence of electoral support, usually by collecting the signatures of a certain percentage of eligible voters. The Federal Constitutional Court, in several early cases, struck down a number of these restrictions.38 The Federal Election Act, fi rst enacted in 1956 and last revised in 2011, superseded major election statutes passed in 1949 and 1953 and governed the conduct of national elections. It incorporated the rulings of several constitutional cases while retaining the major features of the earlier statutes. The most prominent of these features was a mixed electoral system that provides for the election of half of the current 598 members of the Bundestag by a direct vote in single-member constituencies, and half on the basis of proportional representation from party lists put forward by state party organizations. Under this system each voter casts two ballots, the fi rst for a particular constituency candidate and the second for a specific party list. A federal election committee then distributes the seats among the parties in proportion to the total number of second (party-list) ballots they win throughout the country. Any party surpassing the minimum threshold of electoral success (at least 5 percent of all second-ballot votes or at least three constituency seats) qualifies for parliamentary representation. Other provisions of the election act specify the conditions for voter eligibility, regulate the process of selecting candidates, and establish rules for casting ballots, challenging election results, and fi lling vacant seats during a parliamentary term.39 The Basic Law does not prescribe any of this. The framers left the details of the electoral process to Parliament’s discretion. Germans often have debated whether to modify their system in imitation of the British–American model of single-member, winner-take-all constituencies.40 In the late 1960s, the grand coalition parties even toyed with the idea of adopting such a system with an eye to eliminating the minor parties whose entry into the Bundestag was made possible by proportional representation.41 The popu lar reaction to any manipulation of the electoral process for partisan political purposes was so hostile that the issue was dropped. Indeed, it was thought that the mixed system of constituency and proportional representation (sometimes referred to as a “mixed member-proportional” system) had assumed quasi-constitutional status.42

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But constitutional suspicions have continued to shadow the mixed memberproportional system, particularly the question whether it violates the constitutional mandate for equal suffrage. The question is legitimate because of the way proportional representation works in Germany. If a party wins 55 percent of the second (list) ballot votes (and satisfies the minimum electoral success threshold), it receives 55 percent of the seats in Parliament. The system calls for adding list candidates, in the order of their appearance on a state’s second ballot, to those who win constituency seats until the 55 percent figure is reached.43 Critics have complained that this method of counting creates a variety of potential electoral inequalities, chief among them being the phenomenon known as “overhang mandates.” In one scenario, the share of parliamentary seats won by a party that is excluded from the Bundestag for failing to satisfy the minimum electoral success threshold is divided among the surviving parties. In essence, these parties receive a windfall that makes the votes of their supporters “worth” more than the votes of the supporters of the excluded party. In another scenario, a party may win more constituency seats than it is entitled to under the parliamentary proportions determined by the second-ballot votes. In such cases, the Federal Election Act requires the expansion of the total number of Bundestag deputies (above the preordained 598 seats) to accommodate every successful constituency candidate. Again, votes for a party credited with these overhang mandates appear to be “worth” more than votes cast for a party that does not receive these additional seats. In neither scenario is the strength of a party’s representation in the Bundestag reflective of its actual strength at the ballot box. The Federal Constitutional Court had repeatedly upheld the complicated electoral system that makes these overhang mandates possible.44 But the Court left open as many questions as it resolved. In 1997 the Second Senate split evenly in the Overhang Mandates II Case and thus just barely allowed the challenged provisions of the Federal Election Act to stand.45 5.6 Overhang Mandates II Case (1997) 95 BVerfGE 335 [Following the 1994 federal election the center-right cdu won twelve more constituency seats than it was entitled to under the allocation of Bundestag seats as determined by its proportional success in the second-ballot votes. The center-left spd similarly won four additional seats. Pursuant to Articles 6 (5) and 7 (3) of the Federal Election Act, “the total number of seats . . . [in the Bundestag was] increased” by sixteen. The cdu’s twelve overhang mandates made a secure majority for the governing coalition out of what otherwise had been a narrow victory. The spd-led government in the Land Lower Saxony challenged this result in an abstract judicial review proceeding, complaining that the overhang mandates constituted a violation of the guarantee of equal suff rage provided by Article 38 (1) [1] of the Basic Law.]

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Judgment of the Second Senate. . . . I. . . . 3. For the election law, it follows from the principle of equal suff rage (Article 38 (1) of the Basic Law) that each vote must have the same value for counting purposes and the same legal chance of success. An ex ante approach is applicable in this regard. Th is requirement of equality is historically opposed to any variable weighting of votes according to the person of the voter, his or her membership of a class or his or her fi nancial circumstances; today it protects an equality of opportunities in the strict and formal sense. . . . III. The provisions in §§ 6 (5) and 7 (3) [2] of the Federal Election Law, according to which a party retains the seats won in the constituencies even when they exceed the number of its Land list mandates, without other parties receiving compensating mandates, satisfies the requirements of electoral equality under Article 38 (1) [1] of the Basic Law and preserves the equality of opportunities of the parties. 1. a. The Federal Constitutional Court has held that the election of the Bundestag—as a result of the proportional equalization to be carried out at the second stage of the election and regulated in § 6 (4) of the Federal Election Act and without prejudice to the prior direct election of the constituency candidates according to the principles of the plurality system—bears the fundamental characteristics of an election by proportional representation. Overhang mandates differentiate—in varying degrees depending on the number of overhang mandates—the success value of the votes as understood under the rules of proportional representation. Such a differentiation, however, may be compatible with electoral equality under Article 38 (1) [1] of the Basic Law as the necessary consequence of the par ticu lar character of mixed member-proportional representation, as long as the constituencies are, within the bounds of possibility, of approximately equal size. Thus, the Federal Constitutional Court has constitutionally approved of the overhang mandate, even if a majority in the Bundestag and the election of a federal government were to result exclusively from overhang mandates. In conclusion, therefore, that case law must be adhered to. . . . b. . . . It is true that the Federal Constitutional Court assumes in previous decisions that the differentiation in the proportional representation of the parties resulting from the accrual of overhang mandates, in view of the formalization of electoral equality in the system of personalized proportional representation, is not unlimited and is only permissible within narrow limits. But there is no evidence to suggest that the Court thereby intended to exclude all differentiation that goes beyond the unavoidable inequalities in the process of allocating seats according to the proportional strength of the parties. In its previous decisions the Court had no reason whatsoever to defi ne more precise limits for the permissibility of overhang mandates. At most, it can be inferred from the decisions that the number of overhang mandates must remain within limits that do not nullify the fundamental character of the election of the Bundestag as an election by proportional representation that is orientated toward the result of the votes cast for the parties. . . .

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2. Nor, as such, does the combination of proportional representation with elements of the plurality system infringe the general principle of electoral equality, pursuant to which all votes are to be given an equal chance of success. The current Federal Election Act guarantees that every voter has an equal legal opportunity with his or her fi rst and second votes, and by their combined action, to exert an influence on the result of the election. Even the possibility of overhang mandates does not lead to individual voters being presented with a chance, calculable in advance, of securing by their votes a “double” success as regards the composition of the Bundestag, which favors them unequally over other voters. a. The right to vote offers every voter the same opportunity to exert an influence on the allocation of seats and thereby on the person of the respective elected representative as well as on the proportional strengths of the political parties in Parliament. Securing overhang mandates is not the object of that electoral decision, nor a consequence of variable weighting of votes, but only the result of the electoral behavior of all those entitled to vote in the Land in question. Those voters who split their vote contribute to the emergence of direct mandates (that must be fi lled by the victorious candidates regardless of a respective party’s proportional success) just as much as those who cast their vote uniformly for the winning direct candidate in a constituency and his or her corresponding party list. . . . . IV. 1. The fundamental character of the election as proportionally representative does not allow for unlimited differentiation in the weight votes receive. It is likewise in keeping with the total number of deputies in the Bundestag, fi xed by statute for the normal case (§ 1 (1) [1] of the Federal Election Act), and with the statutory requirement that one-half of the legitimating process for that normal case is to take place in relation to individual candidates and the other half in relation to parties (§ 1 (2) of the Federal Election Act), that the number of overhang mandates should remain within limits. If those limits are exceeded, because circumstances arise in which overhang mandates occur in ever greater number from election to election, the electoral process departs from the fundamental decisions embodied in the law. Both a limitation on the discretion of the legislature, on the one hand, and a mandate to act because of the change in the actual circumstances, on the other hand, may result from these demands on the electoral process. 2. The judgment as to whether there is cause for an amendment of election law is fi rst and foremost a matter for the legislature in accordance with the legislative mandate conferred on it by Article 38 (3) of the Basic Law. Parliament must determine to what degree an increase in the number of seats is acceptable in conformity with the rule laid down in § 6 (5) of the Federal Election Act. In reaching its conclusions on this question the Parliament might refer to the numerical value that it uses to reconcile the principle of proportional representation with other constitutionally legitimate but confl icting principles. That effort has led the Parliament to give the success value of votes variable weight. For example, the principle peculiar to the system of proportional representation—namely, that the political will of the electorate for the choice of certain parties should be reflected as realistically as possible

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in the Bundestag—may be broken by a minimum percentage clause (§ 6 (6) [1] of the Federal Election Act) in order to ensure the capacity of Parliament to act and make decisions. The 5 percent minimum threshold for success, in that context, provides the legal framework for a careful balance between party electoral equality and the capacity of Parliament to function. The threshold, in relation to the normal total number of parliamentary seats, might serve here as a criterion for limiting any deviation from other principles, including that half the Bundestag should be composed of constituency seats and the other half of list seats; and that the seats should be distributed proportionally according to the result of the (second) votes cast for the parties. 3. a. According to the 5 percent minimum threshold for success, there can be no objection on constitutional grounds that the Parliament, in recognition of the present trend, has not seen any reason to depart from the current election system. The current system, in the fi rst instance, fi lls the seats awarded to a party on the basis of its success on the second ballot with direct mandates and increases the number of seats to which a party is entitled if it won more direct mandates than the total number of seats awarded to it on the basis of the second-ballot votes. The present increase in the number of seats is constitutionally acceptable;. . . . Nor is it foreseeable that the number of parliamentary seats will further increase substantially in future elections in accordance with § 6 (5) of the Federal Election Act. The factors that favor the formation of overhang mandates, but may also counteract it, are many and diverse in nature. They include an above-average share of unenfranchised persons in the constituency, a low turnout, a high number of invalid second votes, a greater number of successful parties, as well as—a factor which the legislature can influence—the unequal division into constituencies in conjunction with the distribution of the latter among the Länder, voting according to Land lists, and the allocation of two votes that are to be cast independently of one another (one for a constituency candidate and one for a list). b. Provisions of electoral law by which constitutionally permitted aims are pursued are not constitutionally objectionable simply because they also favor the formation of overhang mandates. Thus, the distribution of the seats in the Bundestag according to Land lists is rendered legitimate from the outset by the constituent-state structure of the Federal Republic. The fact that vote-splitting is allowed by statute is justified by the notion of representation rooted in the principle of democracy. As for the varying size of constituencies, which is contrary to equal suff rage, and their unequal distribution among the Länder, which also favors the formation of overhang mandates, the Bundestag has recognized a need for revision and has provided that, as part of the reduction in the number of deputies already decided upon for the coming Bundestag elections, the constituency boundaries will be redrawn. Th at revision deadline is constitutionally acceptable on the basis of unambiguously declared legislative intent. [The four opposing justices sought to distinguish the present circumstances from the Court’s earlier decisions upholding the overhang mandates. Specifi-

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cally, the opposing justices argued that changes in the electorate following reunification greatly increased the likelihood of overhang mandates. For this reason, the Court’s previous consideration of the issue had been marked by the relative rarity of overhang mandates. The increasing frequency and number of overhang mandates, however, meant the issue could no longer be ignored. The four opposing justices concluded that Germany’s election system, despite the personalized constituency facet, was primarily a purely proportional system. While they considered approaches that might nonetheless permit the personalization of a purely proportional system, the opposing four justices maintained that Bundestag seats must be distributed exclusively in accordance with the proportional strength of the parties in the second-ballot votes. Only in this way, the four opposing justices explained, can the guarantee of equal suffrage be satisfied. The constitutional solution in a purely proportional system, the four opposing justices reasoned, would be to reduce a party’s total number of constituency mandates to conform with the party’s allotment of seats based on its proportional strength.]

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Michael Brenner has explained that “[t]he principle of equality of elections . . . means not only that each vote has the same value but more importantly that each vote also has the same ‘effect’ in determining the outcome of the election.”46 With their decision in Overhang Mandates II, the four prevailing justices concluded that the Court’s review of the election system should be restrained by the legislature’s discretion over the matter. In light of this deference, the four prevailing justices could not see fit to discredit the Bundestag’s decision to emphasize the constituency votes in the overhang mandates context. Unlike the four opposing justices who found a constitutional priority for the proportional element of Germany’s elections, the four prevailing justices were of the opinion “that proportional and majority voting extended democratic legitimation to the representatives and, thus, the Parliament, each in its own, totally distinctive manner, ‘without being able to say that one or the other voting system was more advantageous from the viewpoint of representative democracy.’ ”47 Overhang Mandates II is a fragile and equivocal constitutional endorsement of Germany’s mixed member-proportional system, a system that permits a “differentiation” in the value or weight of votes as a result of the possibility of overhang mandates. The overhang mandates phenomenon is not merely a theoretical concern. In each of the last five federal elections overhang mandates have contributed to the outcome of the parliamentary vote and to the eventual establishment of governing coalitions. The governing coalition that emerged from the 2009 federal election (including the center-right cdu and csu parties, and the liberal fdp party) benefited from twenty-four overhang mandates, which boosted their slender parliamentary majority. Th is was the largest number of overhang mandates in the Federal Republic’s history. The total number of Bundestag mandates was expanded

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from its statutorily anticipated 598 seats to 622 seats to accommodate the twentyfour overhang mandates. In this constellation 312 seats were necessary for a parliamentary majority and, counting the twenty-four overhang mandates, the coalition held 332 seats.48 The Flawed 2005 Federal Election. The Court’s acceptance of the electoral inequalities that can result from overhang mandates has its limits. In Overhang Mandates II the prevailing four justices remarked that “the fundamental character of the election as proportionally representative does not allow for unlimited differentiation in the weight votes receive.” One limitation on electoral inequal ity was announced by the Second Senate in cases arising out of the 2005 federal election. In the State Lists Case (2008) the Court ruled that portions of the Federal Election Act were unconstitutional.49 The Court objected to the phenomenon known as “inverse electoral effect,” which refers to the possibility that a party could lose seats if it received more secondballot votes or, conversely, could gain seats if it received fewer second-ballot votes. Th is illogical result was made possible by the confounding machinations of the election system’s accounting for the parties’ proportional strength, the allocation of each party’s seats to the respective Länder, and the priority given to direct constituency mandates in the assignment of seats (sometimes leading to overhang mandates). Of the many examples of the phenomenon that were presented to the Court in these election review proceedings, perhaps just one will suffice to illustrate an inverse electoral effect. The complainants noted that, in the 2005 federal election, the cdu would have lost a seat in its overall tally of parliamentary mandates if it had received just 3,387 more second-ballot votes in the state of Saxony. The election in Saxony was especially relevant to the complaints because a runoff election in one district, held after the results of the general federal election were clear, saw the parties calculating and then strategically campaigning on the basis of the inverse electoral effect. In that specific scenario the cdu urged its voters to abandon the party in their second ballots because a strong proportional per for mance would cause it to lose one overhang mandate. The counterintuitive and incongruent possibilities associated with inverse electoral effect led the Court to fi nd that the responsible provisions of the Federal Election Act violated the constitutional principles of equality and directness of elections. The Court explained that the guarantee of equality of chances for electoral success, which it had derived from Article 38 (1) of the Basic Law in earlier decisions, is violated if the intended positive effect of one’s vote is turned on its head and winds up having an inverse effect. The Court emphasized that here, as in Overhang Mandates II, it was exercising the judicial restraint necessitated by the discretion Parliament enjoys as a result of the Basic Law’s assignment of the details of election matters to the Bundestag. But the Court simply could not agree that the provisions of the Federal Election Act that raised the specter of inverse electoral effect were justified by an “imperative reason.” Nevertheless, in a remarkable sign of the deference the Court feels it owes to the Bundestag in election matters, and out of concern for the practical

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and partisan risks inherent in negotiating and enacting a new election regime, the Court exercised its authority to declare the relevant provisions incompatible with the Basic Law but not void. The Court ordered new provisions, consistent with its constitutional fi ndings in the case, no later than 30 June 2011. Th is had the controversial effect of allowing the 2009 federal election to go ahead on the basis of an unconstitutional election scheme. The Second Senate noted another constitutional infi rmity in the 2005 federal election in the Voting Computers Case (2009).50 The Second Senate ruled that the use of voting computers in the 2005 election had violated the principle of the public nature of elections that is based on Article 38 (1) in conjunction with Article 20 (1) and (2). Th is principle, said the Court, requires that “all essential steps of an election are subject to the possibility of public scrutiny.” With a tone of skepticism that could have been inspired by the butterfly ballots and hanging chads that plagued the Florida recount in the disputed 2000 U.S. presidential election, the Court concluded that computer voting, shrouded as it is in dark technological arts, placed the electoral act at the mercy of possible “programming errors” or fraudulent “soft ware manipulation.” The Court found that voters must be able to determine that their votes have been cast and recorded in an unadulterated manner without the benefit of special knowledge about computer technology. Th is would be achievable, the Court suggested, if electronic votes were recorded and preserved in a parallel, manual system that is maintained and made available for the voters’ inspection. With the same modesty it displayed in the State Lists Case, however, the Court did not invalidate the results of the 2005 election on the basis of this constitutional violation. The Court concluded that the impact of computer voting in the 2005 election was marginal, especially when balanced against the constitutional interest in the continuing existence of a stable, functioning democracy. Districting. The prevailing justices in Overhang Mandates II rejected the view that the second-ballot proportional vote was the singular constitutional mechanism for allocating seats in the Bundestag. Validating the Parliament’s discretion to give the first-ballot constituency votes an equal role in shaping the Bundestag (and with overhang mandates, perhaps a disproportionate role), the four prevailing justices recognized that the principle of equal suff rage requires that the constituency districts be of equal size. They found that, at the time of the 1994 election, the districts did not fulfi ll this mandate. The prevailing justices were willing to accept the districts as they existed at that time because a debate over broader election reform already under way in the Bundestag promised redistricting in the coming years. Effective for the elections that were held in 2002, the Thirteenth Law to Amend the Federal Election Act (1996) reduced the total number of Bundestag seats from 656 to 598. This had the result of reducing the number of districts subject to the first-ballot constituency votes from 328 to 299. The redistricting necessitated by this reform also sought to resolve the concern of the four prevailing justices in Overhang Mandates II regarding the equality of the districts. The law now requires 1) that the number of constituencies in each state will correspond to the state’s

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share of the total population and 2) that the population of a constituency may not deviate from the average population of the constituencies by more than 15 percent. The question of districting was at the center of the Electoral District II Case, in which the Court articulated many basic principles regarding equal suff rage upon which the four prevailing justices in Overhang Mandates II relied. The Court held that Germany’s electoral districts must be relatively equal in population. In this respect, the oneperson, one-vote principle is as embedded in the Constitutional Court’s jurisprudence as it is in that of the U.S. Supreme Court. But, as the 15 percent margin of deviation permitted by the districting reform pursued in the late 1990s suggests, the Constitutional Court has not insisted on strict mathematical equality among districts. In the Electoral District I Case (1961) the Court announced that significant differences in population among districts returning single deputies by simple majority vote would constitute a violation of the principle of equal suff rage.51 The significance of the nexus between the constitutional acceptability of the constituency facet of German elections and districting was thoroughly considered in Electoral District II. 5.7 Electoral District II Case (1963) 16 BVerfGE 130 [Relying on the Court’s election review jurisdiction, the petitioner challenged the validity of the 1961 federal election. He alleged that Schleswig-Holstein had been divided into too many election districts relative to its population, and the result had been three additional direct seats for the cdu. He claimed that no Land was entitled to more representatives than warranted by its population. The case offered the Constitutional Court an opportunity to consider the electoral system in general and the principles under the Basic Law on which it must be grounded. It set down new parameters for districting but refused to uphold the complaint in the present case.]

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Judgment of the Second Senate. . . . B. I. 3. c. The principle of equal suff rage means that everyone should be able to exercise his or her right to vote in as formally an equal way as possible. . . . In a pure majority voting system consisting of electoral districts of equal size, the weight of each individual vote is equal when all ballots have the same value; electoral equality in a system of proportional representation requires a similar weighting of votes. . . . For this reason districts with approximately equal population figures must be created when it is technically possible so that no state ends up with more districts than its . . . share of the total population in the federal territory warrants. If all districts are of approximately the same size, then their appropriate distribution among the states will be guaranteed, thus keeping the number of excessive mandates at a constitutionally permissible minimum.

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. . . Yet, every district must be a balanced and coherent entity under the terms of the Federal Election Act. Historically rooted administrative boundaries ought also to coincide as much as possible with district boundaries. Demographic figures, of course, do not remain constant. . . . Consequently, the constitutional requirement that district boundaries be adjusted to demographic change in the interest of equality cannot be met completely. Federal legislation has taken these inherent difficulties into account; for example, § 3 (3) of the FEA limits the extremes of permissible deviation from the average population of the constituencies to 33.3 percent. . . . 4. The fact that during the last parliamentary election the districts no longer completely satisfied the required equality of the right to vote does not mean that the division of districts was unconstitutional at that time. a. According to the 4 September 1962 report of the Election District Commission, thirty-seven districts as of 1 January 1963 exceeded the limits set forth in § 3 (3) of the Federal Election Act. . . . At the same time Schleswig-Holstein had three districts too many while Lower Saxony and Bavaria had a surplus of four; North Rhine– Westphalia, Rhineland-Palatinate, and Baden-Württemberg, on the other hand, were short seven, one, and three seats, respectively. Because these inequalities spilled over to influence the differential weight of votes in Schleswig-Holstein, the current apportionment statute may not constitutionally be applied to the next federal parliamentary election. The existing legislative districting has become unconstitutional because it . . . no longer corresponds to up-to-date demographic figures and because we can no longer expect an automatic readjustment of the current discrepancies. The federal legislature is therefore obliged, during the current legislative period, to reorganize the districts by reducing to a permissible level the deviations in their population from the national average and by adjusting constituency lines to each state’s share in the total population. b. But the unconstitutionality of the apportionment of districts was not so clearly evident on 17 September 1961 as to invalidate the apportionment from that date. The current apportionment dates from 1949. . . . Since 1949 the population figures of the states have shifted in absolute and relative terms. The greatest differences took place in states particularly affected by the resettlement of refugees and in those affected by internal migration owing to economic developments. . . . The difficulty in determining the exact point when original constitutional districting becomes unconstitutional stems from changes and trends that are at once continuous and unpredictable. These circumstances . . . rendered it impossible, on the basis of the evidence available, to fi nd any violation against the equality of the right to vote at that time. To be sure, a 20 June 1958 report by the Election District Commission clearly showed that, even then, districting no longer conformed to the guidelines of § 3 (3) of the Federal Election Act—although only to a modest extent. In addition, during the parliamentary elections of 15 September 1957, there were three excessive mandates that could have been avoided had the districting been adjusted to account for population shifts. Yet these excessive mandates resulted from two coincidental factors: the relatively small size of the districts in Schleswig-Holstein, and the relative

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majority of fi rst votes for only one party in all districts—events not likely to have been anticipated to recur again in the 1961 parliamentary elections. . . . 5. Because the apportionment did not violate the principle of equal suff rage on 17 September 1961 to a degree that would have appeared to jeopardize its constitutionality, one cannot speak of a flaw in the election that would have influenced the 1961 elections in a constitutionally objectionable fashion. Consequently, the Bundestag rightfully rejected the challenge to the validity of the fourth parliamentary election on the ground that the districting system was unconstitutional.

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The principle of equal suff rage (Grundsatz der Wahlrechtsgelichheit) upon which the Court relied in Electoral District II requires that Bundestag constituencies have relatively equal populations. But what population should count in this calculation? Th is was the question raised in an election review proceeding that challenged the results of the 2009 Bundestag election. The complainant noted that constituencies were based on the general population resident in the district. Th is was in keeping with § 3 of the Federal Election Act, which refers to “share of the population” (Bevölkerungsanteil) as the relevant standard. But this might lead to unequal voting strength in scenarios in which, on the one hand, some districts consist of populations with a small number of voters and a large number of nonvoters (in par tic u lar, minors), while, on the other hand, some districts’ populations consist of a large number of voters. Voters residing in the former, the complainant alleged, would have disproportionate electoral strength. The concern raised by the complainant was more than an interesting hypothetical. In the two decades since reunification the population in the new federal states that acceded to the Federal Republic after the dissolution of East Germany has declined by almost 2 million residents. Th is decline especially reflects the migration of many young people westward to the old Länder where economic conditions are often better. There has been a concomitant “graying” in the new states. In the Minors and Districting Case (2012) the Court dismissed the election challenge, concluding that the Federal Election Act’s failure to require that constituencies consist of relatively equal populations of voters was not—yet—a violation of the principle of equal suff rage. But the Court credited the complainant’s concerns by admonishing future districting commissions to pay close attention to this phenomenon when revising and reallocating the Bundestag’s constituencies.52 The Meaning of Direct Election. Several early constitutional cases challenged features of the second-ballot system that the opposing justices in Overhang Mandates II found so important. Proportional representation itself was said to offend the concept of “direct” elections. In the State Lists Case the full senate found that the provisions of the Federal Election Act that facilitated negative vote weights offended the Basic Law’s guarantee of direct elections. These decisions draw on the Supplemental Candidates Case (1953), in which the Court held that an electoral law would violate the

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principle of direct suff rage, as secured by Article 38, if it permitted a political party to add candidates to its second-ballot list after the election, even if additions were necessary to fi ll vacancies.53 The Court acknowledged the crucial role of political parties in the electoral process but concluded that the fi nal selection of candidates may validly rest only on the “will of the electors.” A “direct” election within the meaning of Article 38, declared the Court, means “the direct election of representatives, and not merely of their political parties.”54 In short, the voter must know precisely for whom he or she is voting, even if this involves something as abstract as the party’s secondballot list of candidates. Can a statute authorize political parties to change the order of precedence on a party list once an election has taken place? In the Fixed Order of List Candidates Case (1957) the Court declared that this, too, would violate the direct suff rage clause of Article 38.55 In still other cases the “fi xed” or unalterable second-ballot list, 56 like proportional representation itself, 57 has been unambiguously sustained by the Court.58 In upholding overhang mandates the prevailing justices in Overhang Mandates II recognized the unique democratic value that the constituency votes contribute to the representativeness of Germany’s democratic system. Th is value derives from the direct relationship forged between a constituency deputy and the constituents that elected him or her. In the Deceased Overhang Mandate Case (1998) the Court clarified the principle of direct representation in relation to the constituency votes.59 The Court invalidated the Bundestag’s procedure for replacing a deceased deputy who had been serving as a constituency representative with an overhang mandate. As outlined in Article 48 of the Federal Election Act, the Bundestag drew the replacement deputy from the second-ballot list of the deceased’s party. The Court found this process acceptable for the replacement of all deputies except those representing overhang mandates. The Court reiterated that Germany’s elections are fundamentally characterized by the second-ballot proportional votes. Even constituency representatives draw their mandates from the second-ballot votes, the Court explained, because a party’s success on the second ballot determines the number of constituency seats to which it is entitled. Thus, in spite of the view that there is a direct political relationship between a constituency representative and his or her constituents, the Court found the principle of direct elections satisfied primarily via the second-ballot proportional votes. For this reason, the Court concluded, the principle of direct elections is not compromised by drawing from the second-ballot list to replace a vacated constituency seat. Th is logic, however, does not hold for constituency representatives holding overhang mandates because the overhang mandates are awarded to a party above and beyond their success in the second-ballot proportional vote. Unmoored as they are from this fundamental source of legitimacy in the German electoral system, overhang mandates represent the rare instance of a direct, individual electoral connection between a deputy and his or her constituents; a constituency deputy representing an overhang mandate takes his or her seat in the Bundestag by virtue of a majority of the fi rst-ballot constituency votes. The Court

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concluded that this direct nexus is not replicated by resorting to the second-ballot list to replace an overhang constituency mandate. The Court found that in these circumstances the vacated seat would have to remain unfi lled. Minimum Th reshold of Electoral Success. The rule that political parties must achieve a minimum threshold of electoral success in the national vote to get into Parliament has been a major feature of the electoral system since 1949. Some of the framers wanted to provide for a 5 percent threshold in the Basic Law itself,60 but most felt that the matter should be left to legislation. By 1952 a 5 percent minimum threshold rule had been adopted at nearly every level of government. The Second Senate took note of this development in the Schleswig-Holstein Voters’ Association Case (1952),61 which invalidated Schleswig-Holstein’s imposition of a 7 percent rule, a hurdle that, in the Court’s view, offended the principle of equality as applied to political parties. A very compelling or special reason, said the Second Senate, would have to justify a rule “exceeding the common German value of 5 percent.” The 5 percent minimum threshold rule was challenged in the Bavarian Party Case (1957).62 Strongly represented in Bavaria, the Bavarian Party sent several representatives to the Bundestag in 1949. In 1953, however, although it had won 20.9 percent of the vote in Bavaria, the party could garner only 4.2 percent of the national vote and it was excluded from sharing in the distribution of Bundestag seats according to the results of the second ballot. The party claimed that the 5 percent minimum threshold violated the Basic Law’s provisions on equality (Article 3 (1)), direct elections (Article 38 (1)), and political parties (Article 21 (1)). The Court rejected each of the claims. While affi rming the equality of all voters in exercising their constitutional right to participate in elections, the Court reminded Germans that “the goal of elections is not only to assert the political will of voters as individuals . . . [but] also to create a Parliament that is an effective political body.” 63 The Court added that “if the principle of exact proportional [representation] as the reflection of [all] popu lar political views were carried to its logical extreme, Parliament might be split into many small groups, which would make it more difficult or even impossible to form a majority.” 64 Parliament’s constitutional tasks require parties that are dedicated to the common good and possess popu lar mandates large enough to allow them to act. Splinter parties, often extreme in their views and too small to effectively produce legislation, cannot meet this test. The 5 percent clause was vindicated as a reasonable and fair way to establish the ability of parties to act responsibly in the legislature. The Court, in Bavarian Party, approved the 5 percent clause as applied to federal elections. In the Danish Minority Case,65 decided in 1954, the Court upheld SchleswigHolstein’s application of the rule to the state’s Danish minority. The Court went on to say, however, that the state parliament could, if it wished, exempt a national minority from the 5 percent minimum threshold, although, in its view, the Basic Law does not require such special treatment. Schleswig-Holstein took the cue and, soon thereafter, amended its electoral code to exempt the Danish Minority Party from the state-based

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5 percent minimum threshold rule. Schleswig-Holstein’s Danish Minority Party, unimpeded by a minimum threshold of electoral success, secured two seats in the state parliamentary elections in 2005. They were briefly able to buoy Chancellor Gerhard Schröder’s flagging national prospects by throwing those two seats behind the state’s spd/Green coalition, creating an impossibly thin one-vote majority over the opposition, and thereby stemming the chancellor’s loss of support in the Bundesrat. The 5 percent threshold rule was successfully challenged, for the fi rst time, in the National Unity Election Case. The objection, as noted in the statement of facts, was not to the 5 percent clause itself but to its application to Germany as a whole in the fi rst all- German election, held in December 1990. The challenge was brought by the minor parties competing for parliamentary representation. In contrast to their success at the end of the 1990s, at the beginning of the decade the western Green Party was suffering poor showings at the ballot box. It sought to build inroads into the new eastern states after reunification and broaden its base by merging with eastern Germany’s Alliance 90, a federation of several reform groups in the old German Democratic Republic. Th is association continues to operate today under the formal name, the Alliance 90/The Greens. Further to the left of the Green Party, the Party of Democratic Socialism (pds) also joined the challenge to the 5 percent minimum threshold of electoral success in National Unity Election. The pds was the surviving remnant of East Germany’s Socialist Unity Party (sed).66 Widely shunned by Germany’s mainstream political elites in the fi rst decade after reunification, the pds nonetheless enjoyed not insignificant support in the new eastern Länder. The Green Party and the pds were joined in the challenge by the radical-right Republicans. Besides serving as a thoroughgoing consideration of the 5 percent minimum threshold of electoral success, National Unity Election also is one of the most important cases involving the rights of minority parties in reunified Germany. 5.8 National Unity Election Case (1990) 82 BVerfGE 322 [Considerable controversy greeted the effort to structure the fi rst all-German election on 2 December 1990, following German reunification. The dispute stemmed from the different electoral systems of the two German states. In the former East Germany each voter had only one vote in a system of purely proportional representation and there was no significant threshold requirement for entry into the legislature. Th is contrasted with West Germany’s two-ballot system that featured the 5 percent minimum threshold requirement. East German leaders objected to the 5 percent rule because the political reform groups that had played so critical a role in East Germany’s peaceful revolution would be unlikely to win 5 percent of the national vote. In the end, they relented on the 5 percent rule and the two sides worked out a “piggyback” arrangement that would permit smaller parties or groups in the new eastern states to field

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candidates in alliance with other, larger parties that were based in the old western states. Th is plan, however, favored some small parties at the expense of others. For example, the strength of Bavaria’s csu would carry its sister party, the eastern German Social Union (dsu) into the Bundestag, whereas the old Communist Party from the east—known as the Socialist Unity Part of Germany and now repackaged as the pds—was unlikely to fi nd a willing partner in the older western states to help it win 5 percent of the national vote. The Court upheld the challenge.]

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Judgment of the Second Senate. . . . C. The petition and constitutional challenge are well-founded. I. According to the continuing jurisprudence of the Constitutional Court the principle of equal suff rage in the election of the Parliament must be understood as a guarantee of strict and formal equality. . . . The democratic order established by the Basic Law equalizes the voices of all citizens . . . and, thus, it is impossible to give different weights to different votes. Parties are charged with the primary responsibility of organizing citizens into political groups for electoral purposes. In the field of elections and voting, formal equality includes the principle of formal equal opportunity, namely, the opportunity of political parties and voter organizations to compete for electoral support. Th is right of equal opportunity derives from the constitutional status of political parties, the freedom to form political parties, and the principle of a multiparty system that is associated with the concept of a free democracy. The principle of equal opportunity governs the election proper as well as the campaign. Democracy cannot function—as a matter of principle—if the parties are unable to enter an election campaign under the same legal circumstances. In regulating the process of forming the political will of the people the legislature operates under strict limits. It may not undermine the equal opportunity of parties or voter associations. Differential treatment of parties and voter associations is constitutionally prohibited. Parliament’s discretion is severely limited when legislating on the right to elect representatives to legislative bodies; this limitation follows from the principles of formal voter equality and equal opportunity of parties. Any deviation from a system of equal suff rage must be justified by compelling reasons. One reason sufficiently compelling to justify distinctions between votes in a system of proportional representation—one that this Court has repeatedly emphasized—is to ensure the proper functioning of Parliament. The very purpose of proportional representation is to have government realistically reflect the political will of the electorate. Such a system may result in splintering the electorate, making it difficult or impossible to form a stable parliamentary majority. Accordingly, the legislature may treat votes differentially in a system of proportional representation if such treatment is required to ensure Parliament’s ability to act and make decisions.

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In principle, the legislature is empowered to ensure the proper functioning of Parliament by means of a “minimum threshold.” (If a party does not receive at least 5 percent of the popular vote, it is excluded from being represented in Parliament.) As a rule, a threshold of 5 percent is constitutionally unobjectionable. The Court emphasized early on that the compatibility of a minimum threshold with the principle of equal suffrage is something that cannot be determined in an abstract manner. Regulations concerning voting rights may be justified in one state at a given time but not in another state at another time; the circumstances of the state must be taken into account. One thing is certain: a deviation from the customary 5 percent rule—even if only a temporary deviation—may be necessary if the circumstances internal to the state have essentially changed; for instance, if shortly before an election the electoral territory is expanded to include territories that have had a different political structure. The legislature is obligated to take such circumstances into account. In principle, it may disregard the 5 percent clause, lower it, or resort to other suitable measures. If the legislature fi nds it advisable to maintain the 5 percent threshold but to mitigate its effects, then the means of mitigation must be constitutional. In par ticu lar, the means must respect the principles of equal suff rage and equality of opportunity for parties. Mitigating the effects of the minimum threshold requirement cannot be justified merely because it offers a “special allowance” as compared to its unrestricted application. On the contrary, a regulation has greater constitutional validity if its effects are evenhanded and neutral. . . . II. The legislative measures objected to in this case [i.e., the unrestricted application of the 5 percent minimum threshold and the “piggyback” system] relate to the fi rst all-German parliamentary election. Th is election is taking place under special, unique circumstances that the Parliament must take into account when considering the 5 percent clause. Th is election is different from other elections because the political parties and electoral organizations have had such a short time to adapt their strategies to a much larger electoral area, and because some of the newer parties and organizations in eastern Germany have had but a few short months to organize and become politically active. 1. Extending the Federal Election Act and its 5 percent minimum threshold to the former German Democratic Republic makes it part of the current “electoral territory.” The fi rst unified German election is taking place one year after the peaceful revolution in East Germany. The day that witnessed the unification of the two territories that had been divided for forty years precedes the election day for the unified territory by only three months. Th is short period of time fails to give some parties an equal opportunity to become active and to compete equally for votes in the new territories. Prior to the national parliamentary election, the parties have had only limited opportunities to participate in the communal or Land parliamentary elections and to publicize their platforms and candidates. a. In view of these circumstances, the application of the 5 percent minimum threshold to all of unified Germany has implications far more severe for those parties that were active only within East Germany than for the parties that were active only

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within West Germany. According to the fi ndings of the Parliamentary Committee on German Unity, maintaining the blocking clause for all of unified Germany would mean that former East German parties would have to poll 23.75 percent of secondballot votes (in their former electoral territory only) in order to clear the 5 percent minimum threshold to be represented in the Bundestag. In contrast, the West German parties would have to receive only 6 percent of second-ballot votes in their former electoral territory to gain parliamentary representation. An additional circumstance that must be taken into account by the legislature is that political parties and organizations have been able to organize and become active outside their national boundaries only since the revolution in East Germany. Their organizational, personnel, and fi nancial bases have not yet developed sufficiently to cope with this change; they have had only a short time to develop their platforms and cooperate with other political groups. [The Court found that the 5 percent clause as applied to all of Germany in this fi rst all-German election would result in considerable inequality among the parties, particularly those competing for votes in the new eastern states, thus requiring a one-time adjustment or change in the statute to secure a greater measure of equality for these parties.] III. 1. Th is matter does not end with our determination that the 5 percent clause may not constitutionally be applied to the whole electoral territory in this fi rst unified German election. The legislature has weakened the effect of the 5 percent minimum threshold through § 53 (2) of the Federal Election Act. The legislature intended to assist “parties based in the new eastern states that were ill-prepared to organize for an all-German election” by allowing them to form a coalition with a party based in the old western states and to present a combined list for the purpose of maximizing their second-ballot votes. Keeping this in mind, the regulation in question must be examined to determine whether it in fact removes the par ticu lar burden on parties and voter organizations that arises from the expansion of the electoral territory and the application of the 5 percent clause in a manner that is constitutional. 2. Th is question must be answered in the negative. a. Combining lists is restricted by the “competition clause” in § 53 (2) of the Federal Election Act. Th is clause permits combined lists only for those parties that do not submit joint lists in any one Land (except Berlin), with the consequence that more weight is given to votes for a list that has not received 5 percent of the vote. This measure fails to satisfy the requirements of formal equality because it does not benefit all parties in the same way. [The Court then considered whether combined lists were constitutionally permissible and found that they were not. After noting that the actual possibilities for combining lists were extremely limited for most parties, the Court concluded that combined lists violate the principle of equal opportunity by giving

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more weight to the votes of some parties than others. Similarly, while individual voters may vote for one party on a joint list, both parties may wind up represented in Parliament. Next the Court considered other alternatives, including lowering the 5 percent threshold and installing a regional minimum threshold by which the 5 percent rule would be applied separately in the old western states and the new eastern states. Combining a regional 5 percent rule with the ability of parties to combine their lists for purposes of second-ballot voting, said the Court, would not satisfy all the requirements of formal equality but it would be constitutionally acceptable. Parliament proceeded forthwith to amend the electoral law accordingly. In a one-time exception to a uniform, national minimum threshold, Parliament applied the 5 percent rule separately in the new eastern states and the old western states and allowed small groups in the new eastern states to form joint tickets to help them over the 5 percent minimum threshold. The amended statute had the intended effect; some groups based in the new eastern states managed to win seats in the Twelfth Bundestag.]

∂

Since the fi rst election after the war the Federal Election Act provided a mechanism to overcome the 5 percent minimum threshold to participating in the distribution of Bundestag seats on the basis of proportional strength on the second ballot. The Th ree Direct Constituencies Clause (Grundmandatsklausel) (Article 6 (1) [1] of the Federal Election Act) permits parties to claim their second-ballot (list vote) proportion of seats in the Bundestag, even if they fail to surpass the 5 percent minimum threshold, so long as they win at least three constituencies on the fi rst ballot (direct vote). In the fi rst postwar elections this escape clause was set as low as one fi rst-ballot constituency victory. In the 1994 Bundestag election the pds failed to surpass the 5 percent minimum threshold, polling only 4.4 percent on the second-ballot (list vote) nationwide. Pursuant to the Grundmandatsklausel, it was nonetheless included in the proportional distribution of Bundestag seats because its candidates had won four constituencies on the fi rst ballot (direct vote). The pds’s 4.4 percent share of the proportional second-ballot votes entitled it to thirty seats on the Bundestag, four occupied by its successful constituency candidates and the remaining twenty-six drawn from the party list presented for the second ballot. The constitutionality of awarding twenty-six second-ballot seats to the pds, via the Grundmandatsklausel, was challenged. 5.9 Grundmandatsklausel Case (1997) 95 BVerfGE 408 [The election review complaint alleged that, in light of the new, diverse postreunification political landscape, the long-dormant Grundmandatsklausel threatened to play an increasingly central role in shaping the partisan profi le of

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the Bundestag. The challenge asserted that the goals of the 5 percent minimum threshold of electoral success would be undermined. Included among these goals was the desire to avoid single-issue splinter parties from disrupting the Bundestag’s ability to enact legislation and form a majority government. It was urged that, at the very least, the Grundmandatsklausel should be amended to require that, in order to evade the 5 percent hurdle, the three constituencies won on the fi rst ballot (direct vote) be geographically distributed throughout the Federal Republic and not concentrated in a single region. Awarding the pds its twenty-six second-ballot (list vote) seats, it was argued, greatly exaggerated the weight of its voters’ influence relative to the weight accorded to votes cast for parties excluded from the Bundestag and not benefiting from the Grundmandatsklausel. Th is compromised the guarantee of equal suff rage. The Court rejected the challenge, in part out of respect for Parliament’s discretion over the electoral system.]

∂

Judgment of the Second Senate. . . . The Grundmandatsklausel serves the purpose, rendered legitimate by the constitution, of reconciling partly opposing objectives, namely, to create a parliament capable of functioning and to achieve an effective integration of the body politic. To that end, the rule takes as its basis appropriate and constitutionally unobjectionable criteria and ensures that the extent of the differentiation remains within the limits of the legislature’s intent. a. With the 5 percent minimum threshold clause the legislature ensures both Parliament’s capacity to function and the integrative character of the election. In that context, the extent to which limited differentiations are permissible is governed by the purposes for which a parliament is elected. In the case of the Bundestag those functions are the enactment of legislation and the formation of the government. On the one hand, the legislature assumes in the case of the rule in § 6 (6) of the Federal Election Act that parties with a minimum of 5 percent on the second ballot (list votes) in the whole of the electoral territory represent a stratification of political opinion in the electorate that is significant for those parliamentary functions and, on the other hand, that those parties will properly share in the tasks of the Bundestag with their central elements being the enactment of legislation and the formation of a government. The fundamental restriction of the minimum threshold up to 5 percent of the second ballot (list vote) limits the intensity of the interference with the— equal—franchise and serves the purpose of the election, which is to enable the parliamentary representation of those political trends within the nation that are significant following the popu lar vote. b. In laying down a criterion that allows inferences to be drawn as to the integrating power of political parties, the legislature is not limited to taking account of the success of a party in the second-ballot (list vote) proportional representation, which

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can be measured by its results in terms of votes in the electoral territory as a whole—or even in parts of it. Rather, as it did by enacting the Grundmandatsklausel, the legislature also can derive a party’s par ticu lar political strength from the extent of its success in the fi rst ballot (direct vote), which, under the system of personalized proportional representation, precedes the proportional distribution of seats. aa. When a deputy belonging to a political party wins a direct mandate, the election of that candidate also is generally an expression of the extent of the approval of the political aims of the party that nominated him or her. If a party’s constituency candidate gains the confidence of the majority of the voters in the constituency, the legislature may assume that this also implies a special degree of approval toward the party behind the candidate. If, in rare and exceptional cases, a party manages to win several constituency seats with its candidates, but without overcoming the 5 percent minimum threshold on the second ballot, then the legislature is entitled to see in that success, which is already reflected in parliamentary seats, an indication that the party has taken up par ticu lar issues of concern that justify representation in Parliament. In that light, the legislature is entitled to view the direct constituency (Grundmandat) party as politically significant. Th is strikes an acceptable balance between two imperatives. On the one hand, it satisfies the requirement that the Parliament is capable of functioning. On the other hand, it provides voters and political parties equal opportunities by allowing parties to participate in the distribution of list seats in the Bundestag commensurate with its second-ballot (list vote) success. bb. The Federal Election Act fi nds support for the inclusion of the Grundmandatsklausel as an alternative entry hurdle on a legal practice that is confi rmed by the tradition of German electoral law, Land electoral law, and electoral laws of other countries. . . . c. The objections to the Grundmandatsklausel are not justified. aa. Contrary to the view of the complainant, the rule does not undermine the aim of the 5 percent minimum threshold rule, which seeks to ensure Parliament’s ability to function. According to experience to date, a small party winning three constituencies remains the rare exception. . . . In the view of that political reality, the legislature also does not need to take into account for future purposes the possibility that the Grundmandatsklausel may lead to a fragmentation of the forces represented in Parliament, thereby impairing the ability of the Bundestag to function. bb. The Grundmandatsklausel also is a legally appropriate reference criterion from the point of view of equal suff rage and equal electoral opportunity. It is a “numerical criterion” that fi rst fi nds concrete expression in the electoral procedure; it can be fulfi lled by any party. It is only necessary that the party has the corresponding popularity among the voters. Th is ensures that the rule operates neutrally in the election contest, unlike criteria that refer to par ticu lar characteristics of parties. d. The rule in § 6 (6) [1] {2} of the Federal Election Act also is not called into question by the objection that the Grundmandatsklausel is framed too broadly and therefore absurdly provides access to the apportionment process for parties that win three direct seats, not in one region, but “scattered” over the whole of the federal territory.

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The legislature is entitled to infer the validity of the Grundmandatsklausel from success in constituencies irrespective of regional proximity. e. No constitutional requirements arise with respect to the number of direct constituency seats. The 5 percent minimum threshold rule in § 6 (6) [1] {1} of the Federal Election Act ensures that the whole of the rule in § 6 (6) [1] does not produce, nationwide, a restrictive effect higher than a 5 percent minimum threshold. It is otherwise left to the legislature’s discretion as to how many constituency successes it identifies as being an expression of par ticu lar political importance. For that reason alone it is not constitutionally objectionable because the legislature did not increase the number of direct constituency seats after the electoral territory was expanded as a result of the reunification of Germany.

∂

The difficulty surrounding the integration of the pds into the political life of the Federal Republic now must be evaluated from the perspective of its increasing importance. In the run-up to the 2005 federal election, the pds allied itself with the disaffected left from then Chancellor Schröder’s increasingly centrist Social Democrats to form the Left Party. The newly formed party polled better than the Green Party, receiving nearly 9 percent of the national vote, in the 2005 election. With 12 percent of the vote in the 2009 federal election, the Left Party continued this successful trend. Despite these results, which might have helped the center-left spd assume leadership in state or federal governing coalitions, the spd generally continues to regard the Left Party as a pariah with which it will not collaborate. The only exception to this stance has been in the Berlin state government. For years the Constitutional Court consistently sustained the 5 percent minimum threshold rule, approving its application to local elections as well as Germany’s administration of elections to the European Parliament.67 The National Unity Election Case, reflecting the unique circumstances of Germany’s fi rst postreunification election, was the rare exception to that tradition. Recently, however, the Court’s resolve with respect to the 5 percent minimum threshold has begun to show cracks. First, acting as the Constitutional Court for the Land Schleswig-Holstein, the Court struck the rule’s application to that state’s local and regional elections. The Court found that the 5 percent minimum threshold severely infringed upon the constitutional interests of equality (Article 3 (1)) and the integrity of political parties (Article 21). Th is severe infringement, the Court concluded, was not offset by the rule’s usual justifications. First, there was no evidence that it was necessary as a check on the threat posed by enemies of the constitutional order who might seek to assume political power through democratic means in order to destroy democracy. Second, the rule was not working to hinder “splinter” parties that assume roles in public authority and policy making only to advance discrete political objectives without any regard for the greater good of society. Th ird, and most importantly, the rule did not appear to the Court to be necessary to ensure the effective functioning of local representative bodies.68

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In the European Parliament II Case (2011) the Court invalidated the rule’s application to elections to the Eu ropean Parliament. In an earlier case, European Parliament I (1979) the Court sustained the application of the rule to European Parliament elections, reasoning that the application of the 5 percent minimum threshold was justified because its main aims were as (or perhaps more) relevant for that supranational organ as they were for the Bundestag. Chief among those aims, the Court explained, is the rule’s capacity to promote an integrated and functioning legislature. In European Parliament I the Court took notice of the integrative character of the entire European project and recognized the European Parliament’s contribution to that endeavor. “In the present stage of integration,” the Court concluded, “the successful work of the European Parliament is still very much dependent on a close relationship amongst the members of the European Parliament and the domestic political forces in the member states.” 69 Th irty years later, however, the Court reversed this decision. In a judgment striking the 5 percent minimum threshold as applied to Germany’s administration of elections to the European Parliament, a bare 5–3 majority of the Second Senate emphasized the rule’s democratic costs. On the one hand, the Court conceded that the 5 percent minimum threshold helped promote political unity. To suggest otherwise would have required the Court to turn its back on a line of its jurisprudence handed down over generations, including in the European Parliament I Case. On the other hand, the Court underscored the fact that the 5 percent minimum threshold achieved that aim only by severely infringing equally important principles of democracy rooted in the Basic Law, including equal suff rage and equal electoral opportunity. At least two facts suggested to the majority that these costs were too high. First, the majority concluded that the tradition of broad partisan coalitions—creating “big tent” party blocs—in the European Parliament eliminated any risk that the body might be unable to act through a majority without the benefit of a 5 percent minimum threshold. Second, the majority noted that the European Parliament had managed to effectively fulfi ll its mandate among the organs of the European Union despite the fact that it had long been the host to scores of minor, marginal, and splinter parties. At the time of the Court’s decision, the senate noted, nearly 160 parties from the eu’s twenty-seven member states were represented in the European Parliament.70 Despite this trend, there is no reason to think that the 5 percent minimum threshold will soon disappear from Germany’s federal elections. In Schleswig-Holstein and European Parliament II the Court took pains to distinguish the circumstances at the local and supranational levels from those prevailing in Germany’s Bundestag elections. The Court seems convinced that, whatever its cost in democratic terms, the 5 percent minimum threshold is still necessary to ensure Parliament’s stability and efficacy. Contested Elections. Article 41 (1) of the Basic Law empowers the Bundestag to examine the validity of elections and to “decide whether a representative has lost his parliamentary seat.” Complaints against the decisions of the Bundestag under this

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paragraph may be lodged with the Federal Constitutional Court under Article 41 (2).71 Section 48 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz; hereafter referred to as the fcca), however, limits access in such cases to a parliamentary minority (providing the group constitutes at least one-tenth of all representatives), to a representative whose seat is being contested, and to an eligible voter whose election complaint, if denied by the Bundestag, is supported by the signatures of at least one hundred eligible voters.72 Th rough 2011 the Federal Constitutional Court had received 218 such cases and disposed of 203 (with rulings from the Court’s senates or chambers in 171 of these cases), sustaining the Bundestag’s fi rstinstance decision in almost all of them. Not surprisingly, Article 41 cases are clustered in the periods immediately following the federal elections. Th is jurisdictional authority served as the basis of most of the cases discussed in this section. They clearly demonstrate the modesty with which the Court traditionally has construed its authority in election review matters. First, the Court has shown great deference to this par ticu lar aspect of the Bundestag’s constitutional competence of self-governance. Martin Morlock explained that this approach is rooted in principles of democracy: “Election review is part of the fundamental principle of popu lar sovereignty [Article 20 of the Basic Law]. It guarantees the orderly operation of elections as the decisive means of legitimizing and correctly assembling the Bundestag, which is the central constitutional organ from which the legitimacy of all other organs of the state derives.”73 Second, the Court has excluded from its Article 41 inquiries election challenges that assert subjective rights, focusing instead on the objective right to a properly administered election. Th at is to say, the Court addresses only “the validity of the election as such.”74 Deference to parliamentary self-governance in election review cases is justifiable because the inherently antimajoritarian nature of judicial review would be exacerbated in the context of settling disputes over inherently political undertakings such as elections to the most representative of Germany’s legislative institutions. Th is logic is also recognized by the U.S. Constitution, which, in Article I, Section 5, establishes that “Each House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members. . . .” The German tradition, however, has recognized that election review still implicates potential violations of the law that require judicial authority and expertise for resolution (Article 19 (4) of the Basic Law). The Weimar Constitution of 1919 solved this tension by providing for a special Election Review Court. The majority of this tribunal’s members were parliamentarians and the minority were high-ranking judges. With this compromise it was still possible to acknowledge the parliamentary priority over and democratic significance of election review. The framers of the Basic Law were less willing to compromise. While Article 41 (1) establishes election review as a competence of the Bundestag, Article 41 (2) gives the Federal Constitutional Court jurisdiction to fi nally review the Parliament’s decisions in these matters. The extent to which this important link in the chain of popular and political legitimation has been judicialized was demonstrated by the Federal Constitutional Court’s

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decision in the Hessen Election Review Case (2001).75 The narrow margin of victory enjoyed by the center-right cdu in the 1997 Hessen state elections raised some hackles with the center-left spd, which lost by only a few hundred thousand votes. When the cdu’s party financing scandal was later revealed, the Hessen Election Review Court sua sponte took the election under review. The Hessen Election Review Court was created by Article 78 of the state constitution and § 17 of the accompanying Election Review Act. It was modeled on the Weimar-era Election Review Court in that a majority of its members were parliamentarians, supplemented by some of the state’s highranking judges. Th is combination, however, could be construed as giving the spd a majority on the Hessen Election Review Court because the judges serving on the court were affi liated with the spd. Th reatened with the possibility that a pro-spd Election Review Court might undo its electoral victory, the cdu-led Hessen government brought an abstract judicial review action against the Hessen Election Review Court’s proceedings in the Federal Constitutional Court. Specifically, the cdu-led Hessen government challenged the “mixed” political and judicial nature of the Election Review Court, arguing that, inter alia, Article 19 (4) of the Basic Law requires that such matters be resolved by the judiciary. The Federal Constitutional Court agreed, holding that the mixed judicial and political nature of the Hessen Election Review Court, resulting in an attendant lack of neutrality and judicial independence, rendered the Election Review Court as something less than a “court” in the constitutional sense. Of course, the Election Review Court was meant to be a political entity for the resolution of election disputes. It is of comparative interest to note that the Federal Constitutional Court ruled to bolster and entrench the role of the judiciary in election review disputes in Hessen Election Review at the same time that the U.S. Supreme Court intervened to resolve the disputed 2000 U.S. presidential election.76 Absentee Balloting. The Mayen Absentee Ballot Case (1981) is an example of a Bundestag electoral decision reviewed by the Federal Constitutional Court. More than 16 percent of Mayen’s voters cast absentee ballots in the federal election of 5 October 1980. In the absence of proof that officials or voters had violated the Federal Election Act, the Bundestag sustained the validity of these ballots. A Mayen voter’s constitutional complaint against the Bundestag’s decision charged that absentee voting on this scale endangered the freedom and secrecy of elections as secured by Article 38.77 In rejecting the complaint, the Court nevertheless issued a warning: Although the Bundestag acted within its constitutional authority in facilitating absentee balloting, it nevertheless has the duty to ensure that the right to vote is safeguarded. Legislators . . . are obligated continuously to review existing regulations dealing with absentee balloting so as to determine whether new situations pose an unexpected danger to the integrity of elections. If abuses are uncovered that adversely affect the freedom and secrecy of elections more than necessary, then the Parliament has the constitutional duty to amend or change the original regulations.78

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The Court concluded in the Mayen Absentee Ballot Case that the Bundestag had laid down detailed procedures designed to preserve the secrecy of the ballot and to restrict the conditions under which absentee voting would be permitted. Under these circumstances, the Court ruled, there could be no valid objection to absentee voting. German citizens denied the right to vote in federal elections because they lived outside the Federal Republic had a more compelling constitutional complaint. Sections 12 (2) and (4) of the Federal Election Act extended the right to vote only to civil servants, soldiers, and others employed in the public service who were living abroad on orders from their employers. The Second Senate sustained these provisions in the Non-Resident Voting I Case (1973) on the theory that citizens who voluntarily surrender their domicile in Germany to take up residence outside the country no longer have the interest or information necessary to vote in federal elections.79 Years later, in a case involving the denial of suff rage to German nationals working as civil servants for the eu outside Germany, the Court had second thoughts about the validity of §§ 12 (2) and (4). Following the Court’s decision in Non-Resident Voting II (1981), the Bundestag amended the electoral act, extending the franchise to German nationals resident in member states of the European Community.80 The Foreign Voters I Case represents the next major event in this account of German voting rights. 5.10 Foreign Voters I Case (1990) 83 BVerfGE 37 [Schleswig-Holstein granted its foreign resident aliens the right to vote in municipal elections if these residents were citizens of countries that extended municipal voting rights to German nationals. Thus, some seven thousand Danes, Irish, Dutch, Norwegians, Swedes, and Swiss who had resided at least five years in the Land would be eligible to vote. Christian Democratic representatives in the Bundestag brought an abstract judicial review proceeding in the Constitutional Court, claiming that the Land law “undermined the democratic right of the German people to self-determination.” The Court agreed.]

∂

Judgment of the Second Senate. . . . C. The Schleswig-Holstein government’s amendment to the Municipal and District Election Act violates Article 28 (1) of the Basic Law. Th is provision permits the people to elect representatives at communal and district levels; the concept of “the people” is employed in the same way as in Article 20 (2) of the Basic Law, which defi nes “the people” as the German people. The concept of “the people” within a community and district includes only the German people. Foreigners cannot be given the right to vote at the municipal level. I. 1. The constitutional assertion that “all state authority shall emanate from the people” (Article 20 (2) of the Basic Law) contains not just the principle of popu lar

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sovereignty (evidenced by its location and connection with other norms); it also defi nes the people who exercise state authority through elections, voting, specific legislative organs, executive power, and the judiciary: it is the body politic of the Federal Republic of Germany. Article 20 (1–3) identifies the Republic as a democratic, social, federal, and constitutional state based on the principle of separation of powers. There can be no democratic state without a body politic that is both subject to and the object of the state authority vested in it and exercised through its organs. Th is body politic consists of the people, from whom all state authority emanates. Th is does not mean that all state decisions must be approved by the people; rather, it means that the subject of state authority must be a cohesive, unified group. 2. According to the Basic Law, the people, from whom state authority emanates in the Federal Republic of Germany, comprises German citizens and all persons of similar status. Membership in this body politic is determined by citizenship. Citizenship is both the legal precondition for the equal status of individuals and the foundation for equal rights and duties; exercise of legal rights and duties legitimates democratic state authority. Other provisions of the Basic Law that relate to “the people” are unequivocal in [identifying] the body politic as the German people: The preamble declares that it is the German people who adopted the Basic Law by virtue of their constituent power; Article 33 (1) and (2) guarantee every German in every Land the same political rights and duties; Articles 56 and 64 require the federal president and members of the cabinet to swear that they will dedicate their efforts to the well-being of the German people; Article 146 grants the German people the right to adopt a constitution superseding the Basic Law. Notably, the preamble and Article 146 both declare the German people to be subject to and the object of the state established as the Federal Republic of Germany. And Article 116, which attributes the characteristic of being German to so-called “status Germans” only, derives its meaning from its own defi nition of the subject of German state authority as “all German citizens.” The drafters of the Basic Law expressly addressed this issue, even while modifying the principle somewhat in consideration of the circumstances of the postwar era. 3. If the Basic Law concludes that being German is necessary to being part of “the people” that is the subject of state authority, then it must follow that being German is a precondition of the right to vote, which is a direct exercise of the state authority possessed by the people. Th is does not mean that the legislature is unable to influence the composition of “the people” under Article 20 (2). The Basic Law empowers the legislator to set conditions for gaining or losing citizenship status (see Articles 73 (2) and 116) and thereby to establish the criteria for membership in the body politic. Th rough the Citizenship Act, the Parliament can also change residence requirements to influence political rights. It is incorrect to state that an increase in the population of foreigners within the Federal Republic of Germany changes the constitutional concept of “the people.” Underlying this misperception is the concept that democracy and the inherent concept of freedom demand complete congruence between those who hold democratic rights and those who are subject to state control. Th is is the correct starting

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point, but it cannot eliminate the relationship between being German and being a member of the body politic, and thus being vested with state authority. The Basic Law does not permit such a development. The sole permissible response is the expansion of citizenship rights to foreigners who have been in Germany for an extended time and who are legally resident and subject to state authority just like other Germans. II. Similarly the state authority granted to the Länder under Articles 20 (2) and 28 (1) can be borne only by those who are German. The territorially defi ned unity of Germans living within the area of a Land stands in place of, or beside, the body politic of the Federal Republic of Germany. III. 1. Under Article 28 (1) of the Basic Law, the outcome can be no different in the case of popu lar representation within municipalities and districts. Even the language of the norm, which disregards territorial defi nitions, uses the concept of “the people” uniformly for Länder, districts, and municipalities, pointing out that the concept applies exclusively to Germans and that Germans constitute the people and elect their representatives. 2. Th is linguistically faithful interpretation of Article 28 (1) corresponds to the Basic Law’s meaning and purpose. a. Th is norm establishes that the fundamental constitutional principles of popu lar sovereignty and democracy, as well as procedures for democratic elections, are valid not only at the federal and Land levels, but also for municipalities and community associations. It guarantees a uniform basis of democratic legitimation for all territorial divisions within the Federal Republic of Germany. . . . c. The drafters of the constitution had good reasons for locating the democratic legitimation of municipal representatives in the German residents of a community (Article 28 (1)): democratic principles (articulated in Articles 20 (2) and 28) are applied to municipalities and districts through Article 28 of the Basic Law.

∂

The Court’s strict association of the enfranchised democratic polity with German citizenship underscored a persistent problem in German political life. The fact that German citizenship law, with very limited exceptions, was based on jus sanquinis (citizenship inherited from one’s parents, or “law of blood”) meant that Germany’s large and growing population of resident foreigners were unable to attain citizenship and, thereby, were excluded from the country’s democratic processes. Th is was true despite the fact that many foreigners had been living in Germany for decades (having arrived as part of the guest-worker programs instituted to slake the labor market during the Federal Republic’s postwar economic boom) and that their children and grandchildren knew no home other than Germany. Th is discomforting gap was surely part of what motivated Schleswig-Holstein to extend the vote to the state’s long-time foreign residents. Following the antics in the Bundesrat that led the Constitutional Court to nullify immigration reform legislation in the Immigration Act Case (2002, no. 3.5), a new immigration law was enacted in 2005. The new immigration regime opened new paths

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to German citizenship and, in light of the Court’s reasoning in Foreign Voters I, to full participation in Germany’s demos. Foreign Resident Voting and the Maastricht Treaty. On the day the Court issued the Schleswig-Holstein Foreign Voters I decision, it decided a companion case arising out of the city-state of Hamburg.81 Here the Court nullified, for the same reason, an amendment to Hamburg’s constitution granting the right to vote in regional elections to all legally resident aliens, regardless of nationality, provided they had lived in the district for a period of eight years. Th is change added ninety thousand persons to Hamburg’s voting lists. The Maastricht Treaty, however, extended the franchise to all eu citizens residing in a member state. Under the provisions of the treaty, eu citizens are now able to vote and stand as candidates in local elections. Accordingly, in December 1992, the Basic Law was amended to grant the nationals of member states the right to vote in regional and municipal elections (Article 28 (1)), effectively nullifying the Schleswig-Holstein and Hamburg decisions.

party state and political spending In formally recognizing political parties, Article 21 of the Basic Law represents something of a revolution in German constitutional theory. The time-honored German view insisted on the separation between state and society. Political parties and other assorted groups represented society and its plurality of interests; society, like political parties, was a source of fragmentation and division. The state represented a higher unity with its own moral ends. Staffed by impartial public servants committed to the general interest, the state alone in traditional theory had the capacity to govern creatively in pursuit of the common good within the context of ordered liberty. Political parties, by contrast, would weaken the state if allowed to dominate the process of governance. Article 21 (1) stood this theory on its head. Under its terms political parties would now “participate in forming the political will of the people,” thus rejecting the old dualism between state and society. Paragraph 1 also declares that the “internal organization [of parties] must conform to democratic principles” just as political parties “shall publicly account for the sources and use of their funds.” To make good on this promise of internal democracy, as part of the “militant democracy” we describe later in this chapter, paragraph 2 bans as unconstitutional political parties opposed to the “free democratic basic order.”82 The “fi nancial disclosure” provision, on the other hand, seemed clearly intended to diminish the role of “big money” in elections and to enshrine the principle of transparency in party funding. The Basic Law’s framers assumed that political parties would draw their fi nancial support exclusively from private sources and they believed the public disclosure of these sources would have a cleansing effect on electoral politics. (As noted later on, however, the Bundestag waited until 1967 to pass legislation enforcing the article’s disclosure provision.)

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From the language of Article 21 (1), as we shall see, the Constitutional Court has woven a theory of the party state (Parteienstaat), representing “a unique synthesis of Western parliamentarism and the German state tradition.”83 The parliamentary tradition is embodied in the principle of popu lar sovereignty and the formal institutions of representative democracy. The state tradition, on the other hand, is manifest in the constitution’s formal recognition of political parties as agencies engaged in the process of “will formation” and in their status—one the Constitutional Court has conferred by interpretation—as “integral units of the constitutional state.”84 Yet, as the Party Finance cases featured in this section show, the Court seems not to have fully resolved the tension between the traditions of democracy and statecraft. An overlapping tension exists between Articles 21 and 38. On the one hand, the Basic Law regards political parties as important, if not necessary, agents of democratic government. They recruit leaders, crystallize issues, aggregate interests, organize governments, and make policies. In the modern nation-state, with millions of voters, political parties are, as the Constitutional Court has recognized, a rational and democratic means for carry ing out these functions: rational because they provide the electorate with alternative choices of policy; democratic because they are mechanisms of majority rule and government by consent. Article 38, however, as described earlier in this chapter, declares that members of parliament represent the “whole people and are not bound by orders and instructions but subject only to their conscience.” The Court’s jurisprudence in the field of political parties and representation can be understood as an attempt to resolve the friction between these two articles. The experience made under the Weimar Constitution of 1919 was uppermost in the minds of the framers when they crafted Article 21. The Weimar Republic was a party state in an anti-party constitutional culture. The only mention of political parties in the Weimar Constitution was the directive instructing civil servants to serve the state and not political parties.85 Under the shattering impact of the Great Depression and Hitler’s struggle for power, Weimar-era democracy degenerated into a regime of warring factions, rendering effective parliamentary government all but impossible. It was the president, directly elected by the people, who personified the state, and he ruled in its name in the face of parliamentary breakdown. The Basic Law’s framers, themselves party representatives—Christian Democrats and Social Democrats made up the large majority of the delegates to the 1948–1949 Parliamentary Council—set out to create a stable political system by shift ing power from the president to a chancellor chosen within the framework of a competitive party system.86 Germany has since developed into a durable democracy marked by high voter turnout, strong popu lar support for the established parties, and a competitive party system capable of producing relatively stable coalitions and alternating governments. For its part the Federal Constitutional Court has held fi rm to the framers’ original vision respecting the role of political parties. Parties as Constitutional Organs. Early decisions from both senates of the Constitutional Court underscored the critical role of parties in the new polity. In the Socialist

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Reich Party Case (1952; no. 5.14) the First Senate declared that Article 21 (1) “treats political parties as more than mere political-sociological organizations; instead, they hold the rank of constitutional institutions.” Earlier in the same year, in the SchleswigHolstein Voters’ Association Case (1952),87 the Second Senate emphasized the same point by observing that the “incorporation of political parties in Article 21 means that parties are not only politico-sociological entities; they are also integral parts of our constitutional structure and our constitutionally ordered political life.”88 Finally, in 1954, the plenum itself ruled that political parties in their capacity as constitutional organs may defend their institutional rights before the Federal Constitutional Court in Organstreit proceedings. “By cooperating in the process of forming the political will of the people,” declared the Court, “parties function as constitutional organs. The parties exercise this right, which is secured by Article 21, primarily through their participation in parliamentary elections. When they are active in this par tic u lar realm and fight for the rights that flow from this special function in our constitutional life, they are entitled to invoke their own rights as constitutional organs in proceedings before this Court.”89 The Plenum Party Case (1954) served notice that the Court was prepared to protect the equality of political parties as well as their prescribed institutional role in the political system. Accordingly, the decision elevated political parties to a new level of protection, regarding them as crucial vehicles in the conduct of elections and thus capable of vindicating their constitutional rights as electoral organs before the Federal Constitutional Court. At the same time, the constitutional recognition extended to political parties was accompanied by clear responsibilities and no small degree of government oversight. 5.11 Party Finance I Case (1958) 8 BVerfGE 51 [Federal laws passed in the early 1950s permitted individuals to make taxdeductible contributions of up to 5 percent of their income to political parties. Companies enjoyed the same tax privilege up to 2 percent of their corporate sales. Public disclosure of these amounts, no matter how large, was not required. The Social Democratic government of Hesse, joined later by Hamburg and North Rhine–Westphalia, challenged the constitutionality of these deductions in an abstract judicial review proceeding, claiming that they discriminated in favor of political parties backed by wealthy individuals and large corporations. The Federal Constitutional Court agreed.]

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Judgment of the Second Senate. . . . B. II. . . . By declaring donations to political parties deductible, the Parliament renounces that part of the income or corporate tax that would otherwise accrue. . . .

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Th is renunciation benefits political parties. Recognizing donations to political parties as deductible expenses means, therefore, that the government indirectly participates, by the amount of revenue it loses, in fi nancing parties. When the legislature exercises its authority it is bound by higher constitutional principles. The challenged provision would be unconstitutional if the Basic Law prohibited any direct or indirect governmental fi nancial support of political parties, as petitioner claims. But this is not the case. . . . III. The challenged provisions of the tax laws, however, violate the basic right of political parties to equal opportunity. . . . 2. The challenged provisions permit every taxpayer who pays income or corporate taxes to donate money to any political party and to enjoy the same legal consequences; namely, deductibility of the donation from taxable income. According to its wording, the regulation gives every political party the same chance to obtain donations. But even if a law avoids unequal treatment on its face . . . , it may be contrary to the principle of equality if its practical application results in an obvious inequality and if this unequal effect is directly due to the legal formulation of the statute. It is not the outward form that is decisive but rather the substantive legal content. . . . 3. If the legislature interferes with the formation of the political will by enacting a statute that could possibly have an indirect effect on the equal opportunity of political parties, then it must bear in mind that its discretion in this area is very limited. As a matter of principle, all parties formally must be treated in an equal manner. Th is principle prohibits the Parliament from treating parties differently unless such treatment is justified by an especially “compelling reason” (zwingenden Grund). Th is principle flows from the democratic-egalitarian foundation of our constitutional order. Today, all political parties are dependent on donations due to the huge fi nancial expenditures required by modern electoral campaigns; no party can meet all of its fi nancial needs . . . from member contributions. In a democratic, multiparty state, all political parties are equally called upon to take part in forming the people’s political will whether they represent the government or the opposition. It is true that the state need not pass laws to meet the fi nancial needs of the parties. But if Parliament enacts laws regulating the funding of political parties, either through the tax system or by direct contributions, then it may not favor a par ticu lar party or a group of parties over other parties. Any such law must conform to the constitution, which means that it may not violate a party’s basic right of equal opportunity. . . . Since the income tax rate increases with the size of taxable income, the possibility of deducting donations to a political party from taxable income gives mainly corporate taxpayers and those with high incomes an incentive to contribute. Pursuant to the new law, under certain circumstances these taxpayers can double their donations without paying more than before. Permitting the deductibility of contributions to a political party does not, however, produce greater incentive for taxpayers with low incomes because the donations that they can afford are usually so small as not to exceed the standard deduction.

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General experience shows that in contrast to donations made for charitable, religious, or scientific purposes, taxpayers make donations to a political party with a special interest in mind. . . . Thus, a donor will tend to contribute to the party that he or she believes will foster his or her special interests on the basis of the party’s platform and activities. . . . Th is fact can be of importance only if political parties differ so clearly from each other in their goals and the means to achieve them that the donor must choose one party (or group) over another if he or she wants to safeguard his or her interests. Such differences do in fact exist between certain parties in the Federal Republic. . . . The challenged provisions therefore favor those parties whose programs and activities appeal to the wealthy. . . . The principle of progressive taxation means that some taxpayers who make use of their democratic right to participate in forming the political will of the people enjoy a material advantage far greater than other taxpayers. Money plays a crucial role in election campaigns, and a party that has at its disposal large fi nancial resources is able to influence elections more effectively than a party with less funding. Under the system of progressive taxation, where tax-deductible contributions are based on the percentage of one’s income, wealthier donors sacrifice far less than donors in lower tax categories. A tax law that allows persons to influence the political will-formation process on the basis of their income is incompatible with the principle of formal equality that governs the exercise of political rights in a liberal democracy.

∂

Equality and Party Funding. In 1957, a year before Party Finance I was decided, the Court nullified a provision of the tax code that disallowed deductions for contributions to political parties unless such parties had elected at least one representative to the federal or a Land parliament (All- German People’s Party Case [1957]).90 In the course of its opinion in Party Finance I, the Second Senate acknowledged that these decisions were bound to exacerbate the fi nancial plight of political parties and their need for funds. Yet, adequate funding was necessary if the parties were to play the important role envisioned by the Basic Law. In Party Finance I the senate suggested that the state might constitutionally fund political parties as a means of ensuring effective competition among them and of diminishing their reliance on special interest groups.91 Funding would be appropriate because parties were now regarded as “constitutional organs” functioning as vital links between state and society. Th is did not mean, however, that parties would have to be funded equally. Public funding, said the Court, might be adjusted to the extent of each party’s popu lar support. On the other hand, such funding must not accentuate existing de facto inequalities among the parties in election campaigns. The Bundestag responded immediately—and eagerly—to the Court’s suggestion by passing the Party Finance Act of 1959. Supported by all the parties in the Parliament, the statute authorized the use of public funds in the amount of dm 5 million to fi nance their so-called political education programs.92 (Shortly thereafter state and

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local governments enacted similar statutes.) By 1964, these outlays, divided among the parties in proportion to the number of seats they occupied in the Bundestag, had reached dm 38 million, equivalent to one German Mark for each voter. A minor party denied funds under these early appropriations claimed that its exclusion from the act’s coverage violated the principle of electoral opportunity. In the All- German Block Party Case (1961)93 the Court rejected that party’s application for a temporary injunction to bar the disbursement of such funds, reiterating once again that public fi nancing of political parties is permissible in the light of the crucial representational role assigned to them under the Basic Law. Although specific formulae for the allocation of funding might raise equal protection questions, this decision, together with dicta from Party Finance I, seemed to have established the general validity of party fi nancing out of state funds. In Party Finance II, however, alarmed by the enormous annual increases in party funding, the Court backed away from the sweeping implications of its earlier cases. 5.12 Party Finance II Case (1966) 20 BVerfGE 56 [Between 1959 and 1964 the Bundestag raised the amount of direct public subsidies to the political parties. The funds were apportioned among the four parties represented in the Bundestag (cdu, csu, spd, and fdp) based on the total number of each party’s parliamentary seats, and the subsidies could be used for their general support before and after elections. The Social Democrat– controlled state of Hesse challenged the validity of the law in an abstract judicial review proceeding. Political parties that failed to win seats in Parliament, which were thereby rendered ineligible for public funding, also challenged the validity of the party fi nance law. Each of these parties—the far-right National Democratic Party, the All-German Party, and the Bavarian Party—petitioned the Federal Constitutional Court within the framework of an Organstreit proceeding. The Court accepted the petitions and, to a significant degree, credited the challenges raised.]

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Judgment of the Second Senate. . . . C. I. In its judgment of 24 June 1958 [Party Finance I], the Court noted that political parties are primarily organizations for the preparation of elections and that, for the most part, they use their own fi nancial resources to serve this purpose. The Court remarked that it would be permissible for the state to appropriate public funds not only for holding elections but also for the support of those political parties that participate in the electoral process. Such funding is warranted because holding elections is a public function and parties play a decisive role in carry ing out this function under the constitution. Federal and state legislators could have and have understood the

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Court’s explanations to mean that it is constitutionally permissible to use public funds to subsidize parties for all political purposes. Th is case, however, has convinced the Court that to grant subsidies from public funds to parties for everything they do violates Articles 21 and 20 (2). . . . Nonetheless, it is constitutional to use public funds to reimburse political parties when they are engaged in forming the people’s political will by participating in parliamentary elections, but only to the extent of defraying the costs of an appropriate election campaign. II. 1. In creating a free, democratic basic order, the framers of the Basic Law chose to advance a free and open process of forming public opinion and the will of the state. It is incompatible with this choice for the state to finance all political party activities. . . . In a democratic system the formation of the people’s will must take place in a free, open, and unregimented manner. . . . The process culminates in a parliamentary election where a distinction must be made between forming the people’s will and forming the will of the state. . . . Whereas Article 21 (1) deals with forming the people’s will, Article 20 (2) concerns the formation of the state’s will. The expression of the people’s will coincides with forming the state’s will only if the people exercise state authority through elections and voting (Article 20 (2)). . . . Forming the people’s will and forming the state’s will are intertwined in various ways. In a democracy, however, forming the popu lar will must start with the people, and not with the organs of the state. The state’s organs are created only through the process of forming the people’s political will. . . . Th is means that state organs are in principle prohibited from becoming active in forming the people’s will and opinion; this process must, as a matter of principle, remain “free of state control.” Actions of administrative or legislative organs to influence this process are incompatible with the democratic principle of the free and open formation of popu lar opinion and are legitimate only if they can be justified by a special reason. . . . The state is not obligated to satisfy the general fi nancial needs of political parties; nor is the state obliged to compensate parties, by fi nancial or other means on the basis of their different capabilities for influencing the process of forming popu lar opinion and will. . . . bb. Political parties cooperate in forming the political will of the people mainly through their participation in elections, a process that could not be realized in the absence of such parties. Parties accordingly serve as essential links between individuals and the state, for they are the instruments through which the will of the people can be put into effect even between elections. Parties in the majority establish and maintain connections between the people and the state, whereas minority parties form and facilitate effective political opposition. Parties participate as intermediaries in shaping public opinion. They take note of opinions, interests, and trends relating to political power and the exercise thereof; parties then balance these factors, mold them, and try to bring them to bear in forming the state’s will. . . . In a modern mass democracy, political parties decisively influence nominations to the highest governmental positions. . . . They influence the formation of the state’s will by working marginally in

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the state’s system of institutions and offices, in par ticular by influencing decisions and measures taken by Parliament and the government. The constitutional requirement that the formation of public opinion and the will of the state remain fundamentally free of state control insulates party activity against the overarching influence of government and prohibits the incorporation of political parties into the state’s apparatus. . . . The general consensus of the legal community is that it is incompatible with the Basic Law to use public funds to cover all or even most of the fi nancial needs of political parties. Partial state fi nancing of parties through annual or monthly payments for all political activities . . . would place political parties under the tutelage of the state. Th rough such fi nancing the state would influence the process of shaping public opinion and forming the will of the state. No special reason can be advanced to constitutionally legitimate such influence. Therefore, the fi nancing of political parties provided for in the Federal Budget Law of 1965 is unconstitutional whether seen as an infringement of the right of political parties to be free from state interference as guaranteed by Article 21 or a violation of the principle of equal opportunity for parties. 1. The appropriation of public funds to defray the costs of all of a party’s political activity cannot be justified by the fact that Article 21 recognizes parties as constitutional instruments necessary for shaping the political will of the people or the fact that they have been elevated into a constitutionally protected institution. In short, since the process of democratically forming the people’s will must remain free from state influence, the fact that the constitution recognizes the participation of parties in this process does not in and of itself justify the state’s influence over this process by the public fi nancing of political parties. 3. The fact that the members of parliament receive allowances and parliamentary groups receive contributions from state funds does not mean that it is also permissible to grant parties annual subsidies for all their political activity. . . . III. Additionally, state funds may not be allocated to parties for purposes of “political education.” Evidence in this case has confi rmed that it is impossible to draw a line between general party activity and political education. . . . IV. 1. . . . But reimbursing political parties for expenses necessary to fund an appropriate election campaign can be constitutionally justified if the principles of open participation in elections and the equal opportunity of political parties are to be observed. In this respect we affi rm the [Party Finance I Case]. . . . In a democratic system, parliamentary elections constitute a crucial act in forming the people’s political will. . . . In a modern mass democracy . . . the state could not hold elections without political parties. . . . Active citizens decide on the value of a political party’s program and on its influence in forming the state’s will primarily through elections. . . . They cannot make decisions sensibly unless the parties have fi rst set forth their platforms and goals in an electoral campaign. The campaign alone induces many voters to cast a ballot and make a decision. The Court has emphasized on several occasions that parties are principally organizations for preparing elections

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and that they take part in forming the people’s political will mainly by participating in parliamentary elections. . . . Because of the special importance of political parties for elections it is constitutionally justifiable for the state to reimburse them for necessary expenditures incurred during an appropriate election campaign. But the Court need not decide whether the legislature is obligated to reimburse parties for their campaign costs since this is a political question. . . . [As the extracts above and below suggest, Party Finance II established three points. First, state subsidies would have to be limited to expenses incurred during an election campaign. Second, political parties securing less than 5 percent on the second ballot (list vote) should be eligible for state funding. And third, there would have to be a relative upper limit on the amount of funds appropriated for the parties.] 4. a. The decision that legislatures can use federal funds to reimburse political parties for costs incurred in an electoral campaign establishes, on the one hand, that only those major parties that have taken part in an election campaign can lay claim to state subsidies. On the other hand, the principle of strict formal equality of opportunity requires that the legislature consider all parties that have participated in the campaign when distributing funds. It is inconsistent with the principle of equal opportunity for [the legislature] to provide state funds only to parties already represented in Parliament or to those that . . . win seats in Parliament. Th is principle does not preclude all differentiations; it permits parties to be treated differently if a special, compelling reason exists. . . . One can predict that reimbursement of campaign costs will encourage the establishment of new political parties. Th is would encourage a development that the 5 percent minimum threshold rule, which bars parties from entering Parliament with less than 5 percent of the total second ballot (list vote), was designed to counteract, a restriction the Federal Constitutional Court has approved. . . . The legislature can, however, guard against the formation of splinter parties. . . . It is true that reimbursement of a party’s campaign costs cannot be made contingent upon whether it has received 5 percent of the votes cast. Such a measure would double the effect of the 5 percent clause and would practically prevent a new party from being seated in Parliament. . . . Nevertheless, the legislature can . . . make reimbursement of a party’s campaign costs contingent upon its obtaining a certain minimum percentage of votes. Th is percentage must, however, be considerably lower than 5 percent.

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Competing Views of the Party State. The result in Party Finance II was a compromise between competing views of the relationship between political parties and the state. One view, as already noted, holds that parties are quasi-official agencies of the state, a character they possess owing to the critical functions they perform in modern political democracies. They are the main engines of state power and political representation; in this capacity they form the “political will of the people” on the

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basis of which laws are enacted. In the ideal Parteienstaat, the Court has suggested, parties are competitive but also unified, program-oriented organizations of active citizens capable of educating the electorate and representing their interests. Therefore, the Parteienstaat by defi nition excludes the Verbändestaat, a system in which interest groups monopolize the political process and undermine genuine majority rule. The state must liberate parties—and itself—from the domination of such interests, and one way of achieving this goal, the Constitutional Court suggested, is by financing political parties out of public funds.94 The competing view is closer to the traditional German attitude toward parties. While accepting the proposition that parties are necessary agencies of modern democracy and that Article 21 looks toward the creation of a Parteienstaat, this view does not postulate any fundamental nexus between political parties and the state. Under this interpretation, political parties are strictly voluntary associations with roots in the general social and political order; they are not part of the state. They may help to form the political will of the people, but they do not represent the will of the state. The state is an independent entity devoted to the public interest, an interest that does not depend on parties for its articulation or implementation.95 Party Finance II advances a middle view. The Court noted that parties, in their capacity as electoral organizations, shape the people’s will. In this sense, they carry out a crucial public function worthy of the state’s fi nancial support. The Court added, however, that they do not and should not monopolize this process; indeed, the state must remain open to other influences, including those of nonparty groups and related social interests. In addition, the Court duly noted the significance of Article 38, which defi nes legislators as representatives of the whole people. In a nutshell, parties serve as constitutional organs of the state only during election campaigns when they seek to organize the political will of the people. Accordingly, the Basic Law permits the public funding of political parties only for the purpose of defraying legitimate campaign costs. Funding for the general support of parties is constitutionally impermissible. Finally, the Court ruled that under the principle of equality, parties outside Parliament are also constitutionally entitled to reimbursement for their campaign expenses.96 The Federal Political Parties Act. In several judgments handed down between 1952 and 1966, the Federal Constitutional Court created an important body of law on political parties and elections. Party Finance II convinced the Bundestag and the federal government that they could no longer escape their duty, pursuant to the terms of Article 21 (1), to regulate the details of party life and orga nization, particularly with respect to the constitutional command that parties must “publicly account for the sources of their funds.” By this time, party fi nancing also had become the source of what some commentators described as blatant political corruption. Huge undisclosed and covert tax-exempt contributions to political parties on behalf of corporate interests in par tic u lar had become a way of life in West Germany.97 Having been denied a fertile source of party funding under Party Finance

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II, the major parties represented in the Bundestag—now dominated by the cdu/ csu-spd grand coalition—collaborated in the passage of the Political Parties Act of 1967.98 The Political Parties Act consisted of sections on the status and functions of political parties, internal party organization, nomination of candidates, and the disclosure and auditing of campaign contributions and expenditures, along with provisions on the public funding of political parties. In one of its most interesting parts, the Act accepted the theory of the Parteienstaat. It defi ned parties as “constitutionally integral units of a free and democratic system of government,” confi rmed their role in “forming the political will of the people,” and charged them with “ensuring continuous, vital links between the people and public authorities.” The following materials focus on the Act’s public funding section, including provisions on the disclosure of private donations and their tax treatment. Under the Act each parliamentary party would receive a specified amount of public funds on the basis of its total second-ballot vote, but only for the specific purpose of defraying the “necessary costs of an appropriate election campaign.” Th is was in keeping with the Court’s ruling in Party Finance II. These sums were to be distributed to the parties on an annual basis. As for other sources of revenue, the Political Parties Act in its original version encouraged small donations by making them tax-deductible while imposing reporting and disclosure requirements on large individual and corporate contributions. But against the backdrop of campaign fi nance scandals, the dwindling income of the established parties, and a rather loose defi nition of an “appropriate election campaign,” the public funding of political parties increased exponentially over the years.99 Under successive legislative changes, state subsidies surged from dm 5 million in 1959 to dm 38 million in 1964 and to dm 199 million by the late 1970s (subsequent to the adoption of the 1967 Political Parties Act). In addition, Parliament had established foundations to advance the respective interests of the four parties represented in the Bundestag. Heavily subsidized by federal and Land governments, the four institutions—Friedrich Ebert Foundation (spd), Friedrich Naumann Foundation (fdp), Konrad Adenauer Foundation (cdu), and Hans Seidel Foundation (csu)—were charged with fostering the “political education” of their members and the general public.100 These subsidies rose from dm 9 million in 1967 to dm 74.3 million in 1970. By 1990 the figure would skyrocket to dm 544.8 million. During the eleventh national legislative period alone (1987– 90), state subsidies in support of the parliamentary parties, party foundations, and nonparliamentary parties eligible for funding reached the astronomical sum of dm 4.2 billion. During the 1980s, state subsidies to the political parties often exceeded the income they received from private revenue sources (membership dues, individual and corporate donations, and officeholder assessments).101 Party Funding Adjudication (1968–1988). Few areas of public policy have experienced as much interplay between the Federal Constitutional Court and Parliament as the campaign fi nance provisions of the Political Parties Act. Every subsequent

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change in the Act—in par tic u lar, changes affecting the sum or distribution of state subsidies, tax-deductible donations, or reporting and disclosure requirements— triggered a corresponding constitutional challenge by parties, political associations, or independent candidates allegedly disadvantaged by the change. Overall, the Constitutional Court sustained Parliament’s general approach to campaign finance regulation. In the important Political Foundations Case (1986) the Court even endorsed the appropriation of subsidies to the four party-oriented foundations. By the 1980s these institutions had blossomed into prominent national organizations with large staff s and overseas branches and were well known for their educational and civic contributions, including their sponsorship of student research grants, fellowships, and academic conferences. (The amounts allocated to the foundations depended on the size of their memberships.) The Green Party and other critics charged that these subsidies circumvented the holding of Party Finance II and constituted a covert means of fi nancing the parties out of state funds. But after examining the nature and operation of the foundations the Court ruled that their funding was constitutionally permissible; they were seen to be legitimate civic and educational institutions legally and organ izationally independent of their affi liated parties.102 In a series of other decisions, the Constitutional Court struck down successive amendments to the Political Parties Act, fi ne-tuning its previous holdings and virtually micromanaging the party funding, taxing, and disclosure policies of both federal and Land governments, all in the interest of fair and equal electoral competition. In Party Finance III (1968), for example, the Second Senate nullified a provision of the Political Parties Act that limited funding eligibility only to parties securing at least 2.5 percent of the total list or second-ballot vote.103 The Court viewed this baseline as exceedingly high and thus ruled that it violated the general equality clause of Article 3 (1) as well as the principle of universal and equal suff rage under Article 38 (1), whereupon the Court ruled that any party receiving 0.5 percent of the vote should be eligible for public funding. Also, and unanimously, the senate declared that corporations must disclose their contributions to the parties in excess of dm 20,000 instead of the dm 200,000 provided by statute.104 Similarly, in Party Finance IV (1979), another decision of the Second Senate, the Court reaffi rmed the limits it had imposed on the tax deductibility of private donations to the parties as well as the bright line it had drawn in Party Finance II between the parties as constitutional organs for electoral purposes—their public function—and parties as voluntary associations of private citizens.105 The parties had been haggling to revise tax-deductible contributions substantially upward in light of the dwindling funds in their general trea suries, a condition that led to the scandal of Umwegfi nanzierung—that is, “going around the law” by funneling donations to dummy charitable organizations and securing tax exemptions for illegal contributions.106 Unsurprisingly, the parliamentary parties were pushing hard to increase their public subsidies. The Court pushed back in Party Finance IV. As voluntary political associations, said the Second Senate, the parties themselves were respon-

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sible for raising the funds necessary for their general support. The Second Senate also reminded the parties that the judicially prescribed tax-deductible provisions of the Parties Act were designed to stimulate and not inhibit voluntary fund-raising activities.107 An additional party funding case, decided in July 1986, emerged from another petition fi led by the Green Party. A 1983 change in the Political Parties Act defi ned parties as “charitable” organizations for tax purposes, allowing individuals to deduct donations up to 5 percent of their income and companies up to 2 mills of their total wages, salaries, and sales. Another change raised the reimbursement per eligible voter from dm 3.5 to dm 5. An “equal competition” (Chancenausgleich) scheme also was adopted pursuant to which parties receiving at least 0.5 percent of all votes in a federal election would now be entitled to additional funds based on the sum of their respective party members, membership dues, and donations. Finally, to encourage parties to become more reliant on small contributors, a tax credit of 50 percent was allowed to individuals and married couples up to dm 1,200 and dm 2,400 respectively. Party Finance V sustained each of these provisions except for the tax-deductible donation of 5 percent of a person’s annual income.108 Th is provision, said the Court, like the one struck in Party Finance I, would violate the general equality clause of Article 3 (1) by favoring parties supported by the rich. Yet the Court appeared to have given back to the parties what it had taken away by holding, over the dissent of two justices,109 that a maximum corporate tax-deductible amount of dm 100,000 would be constitutionally acceptable. Party Finance V led to revisions in the Parties Act and the Corporation Tax Code that introduced important changes. These changes, introduced in 1988, triggered yet another constitutional challenge by the Green Party. The dispute took the form of an Organstreit proceeding, an action any parliamentary party may initiate to question the validity of a law impinging on its electoral rights as a constitutional organ participating in a national or Land election. 5.13 Party Finance VI Case (1992) 85 BVerfGE 264 [One of the changes to the Political Parties Act from 1988 required the disclosure of contributions in excess of dm 40,000 and allowed generous tax deductions to individuals and married couples for donations up to dm 60,000 and 120,000 respectively. In addition, Parliament established for each party a socalled base payment (Sockelbetrag) to fi nance their continuing organ izational expenses. For parties acquiring at least 2 percent of second-ballot votes in a federal election this amounted to 6 percent of their direct subsidies or reimbursement for necessary campaign costs. In 1988 this sum was around dm 300 million. The Green Party was the spoiler, this time precipitating major judicially mandated changes in constitutional policy on party fi nancing. In its sixty-four-page judgment, the Second Senate set limits on the overall amount

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of direct subsidies that could be allocated to the parties and reversed its decisions from 1966 to 1986. These rulings permitted funding only in reimbursement for direct election expenses. Unable to distinguish precisely between general and election campaign fi nancing, the senate would now permit the general fi nancing of parties subject to restrictions keyed to the sum of private donations. The following passages include only the headnotes (Leitsätze) to the case.]

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1. The principle of political party autonomy laid down in the Basic Law necessitates not only that parties retain their independence from the state but also preserve their character as voluntary organizations rooted in the social and political spheres apart from the state. 2. Contrary to a previous decision of this senate, the state may allocate funds to political parties for the general political activities assigned to them under the Basic Law. But the principle of party autonomy is violated when state fi nancial subsidies discourage political parties from taking the steps needed to raise funds voluntarily from their own members and electoral supporters. a. The total amount of state subsidies provided to a political party must not exceed the sum it receives from its own fund-raising efforts (“relative upper limit”). b. The amount of fi nancial support provided to the political parties from public funds during the years 1989 to 1992 must be considered sufficient so long as existing conditions are not subject to substantial change. The average yearly subsidy flowing from these appropriations represents the maximum sum of government funds that may be allotted to political parties by the Federal Government and Land governments provided that circumstances remain the same (“absolute upper limit”). c. The success a political party achieves among its voters—success being measured here by the sum of its membership fees together with the total amount of voluntary contributions—is expressed proportionately by its sharing in the funds that are to be individually determined by the legislature.

3. The equal opportunity provision of § 22a (2) of the Political Parties Act is incompatible with Articles 21 (1) and 3 (1) of the Basic Law because it violates the petitioner’s right to equal opportunity in political campaigns. 4. The constitutional limit of a permissible tax benefit for contributions and donations to political parties . . . begins at the point where it has a serious effect on the prescribed competitive situation among political parties. Th is limit is not reached if the majority of those taxed is able to benefit from equitable preferential tax treatment. 5. In departing from the position taken in the [Party Finance V Case], the preferential tax treatment of corporate donations is subject to serious constitutional objec-

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tion in view of the right of citizens to equal participation in the formation of the people’s political will. 6. Elevating the so-called disclosure limit (Publizitätsgrenze) in § 25 [(2)] of the Political Parties Act to dm 40,000 violates Article 21 (1) [4].

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Party Finance VI: Commentary and Impact. By the 1990s party fi nancing appeared to have swirled out of control. After the 1990 election the parties received nearly dm 500 million in state funds, not to mention various indirect subsidies in the form of grants to party foundations, tax-deductible donations, and so-called party taxes, namely, the annual contributions legislators were expected to make to their respective party organizations out of their ever-increasing legislative salaries. Against the backdrop of the Flick scandal and rumors of other undisclosed party fi nancing,110 the Federal Constitutional Court seemed worried that the established parties were becoming too entrenched, building and reinforcing their internal bureaucracies at the state’s expense and thus widening the distance between themselves and their voters. Accordingly, in Party Finance VI, the Court sought to impose a constitutional policy that would require the parties to depend on their own resources and fund-raising capabilities to a greater extent than in the past. In its 1992 judgment the Second Senate unanimously rejected the essential core of its previous jurisprudence by ruling that it was no longer feasible to distinguish between the “necessary expenses of a reasonable election campaign” and the costs of other legitimate political party activity.111 From now on, declared the Court, state funding would not be allowed to exceed the total amount raised by the parties themselves. Funding beyond this amount would, in the Court’s view, lead to “direct dependence on the state” and thus violate the principle of party autonomy.112 “The general theme of the decision,” as Arthur Gunlicks noted, “was the idea that the parties should be free of the state (Staatsfreiheit der Parteien)” in order to deepen their roots in society.113 Additionally, the Second Senate nullified the “equal opportunity” (Chancengleichheit) and “base amount” (Sockelbetrag) provisions of the existing statute as violations of the equality clauses of Articles 3 and 38. The Court also revived the spirit of its 1958 decision by invalidating taxdeductible donations of dm 60,000 and dm 120,000 for individuals and couples respectively and by disallowing tax deductions altogether for corporate donations. As for individual tax-deductible contributions, the Court ruled that these amounts would have to be sufficiently low to invite donations from average taxpayers. Finally, the Court lowered the publicity threshold from dm 40,000 to dm 20,000. In short, the Court was calling for a major overhaul of the party fi nance system and gave the Bundestag until January 1994 to amend the Political Parties Act accordingly.114 Promulgated in January 1994, the revised statute incorporated the major policies outlined in Party Finance VI. Most importantly, it disallowed funding that exceeded a party’s independent annual income (measur ing the relative upper limit on state

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funding), regularized payments to the parties on an annual basis, and placed a cap (the absolute upper limit)—starting with dm 230 million for 1994—on the amount all parties together could receive annually. The revised statute also specified the criteria and formulae by which the relative and absolute limits on state funding would be calculated, defi ned the relevant categories of income and expenditures for which detailed reports from federal and regional party organizations would be required, and provided for various accounting and auditing procedures to ensure compliance with the new regulations. In addition, it drastically reduced the tax-deductible amounts of individual donations (up to dm 6,000 for single persons and dm 12,000 for married couples), banned tax-deductible corporate donations altogether, and required the disclosure of all donations in excess of dm 20,000. These limits and the cap placed on overall state funding were designed to encourage the parties to expand their membership dues and other private fund-raising activities. Even so, the federal president reluctantly signed the law, suggesting that some of its provisions approached the borderline of constitutionality. He was concerned about a new fi xed base amount (Sockelbetrag) that parties would receive in addition to their normal per-vote allocation. Only two minor cases challenging the provisions of the new law came before the Federal Constitutional Court between 1994 and 2006. In the fi rst case the Court dismissed a communal voters’ association complaint that it had been unfairly denied funds under the statute.115 In the second case the Court sustained a Federal Administrative Court (Bundesverwaltungsgericht) decision upholding, over the objection of the cdu, the prescribed formula by which the party was allocated funds in 1999.116 But, as noted in connection with the Minority Rights in Investigative Committees Case (2002; no. 5.1), the year 1999 witnessed another major party fi nance scandal when it was discovered that former Chancellor Helmut Kohl (cdu) had funneled millions of undeclared donations into secret party accounts. The ensuing public outcry intensified when Kohl refused to reveal the sources of these illegal funds. “Kohlgate,” as the press dubbed the affair, prompted Federal President Johannes Rau (spd) to appoint a commission to recommend further changes in party fi nancing and to close loopholes that allowed the former chancellor to circumvent the law. Months later, however, public interest in party fi nance reform had waned, just as the Bundestag had ignored most of the Rau Commission’s recommendations.117 Subsequent amendments to the Parties Act—achieved between 1997 and 2004—left the law much as it was in 1994. The amendments adhered to the general guidelines of the 1994 revisions, with the relative and absolute limits being based on the number of votes a party receives in European, Bundestag, and Land elections. The volume of state funding was also keyed to private donations and depended as well on the amounts statutorily specified for each list vote received by a party obtaining at least 0.5 percent of valid votes cast on its behalf.118

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militant democracy The fire that terrorists (supposedly) set to the German parliament building (Reichstag) during the night of 27–28 February 1933 was so symbolically potent as to offer (or was orchestrated as) a pretext for Hitler’s intensification of the “repressive measures [the Nazis] had already initiated against all forces opposed to the regime.”119 We are all too familiar with the horrors unleashed by the Nazi tyranny, which were, in part, presented as the necessary response to the threat of Bolshevik terrorism.120 Indeed, the seeds of World War II and the Holocaust were planted in the fertile, dictatorial soil cleared away by Hitler’s emergency decree issued on 28 February 1933, the day after the Reichstag fire. The decree suspended “key basic rights and all constitutional guarantees.”121 But democracy itself, enshrined and preserved in many of the rights that Hitler hastily abolished after the Reichstag fi re, was just as much an accomplice to Hitler’s rise to power as it was his victim. Certainly with no small amount of thuggery,122 but also through effective campaigning,123 the Nazis could claim that they drew their support from all sectors of German society by 1930.124 In the snap parliamentary elections held in early March 1933, the last credibly free elections of the Weimar Republic, Hitler and the Nazis fairly became the largest party in Parliament. Joseph Goebbels ridiculed the system, declaring that “[t]his will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed.”125 In response to this history the framers of the Basic Law were determined to provide security against Hitler’s state terrorism. First, they articulated an enforceable cata logue of fundamental rights in the Basic Law’s fi rst nineteen articles, beginning with a simple but profound declaration in Article 1: “Human dignity shall be inviolable. To respect it shall be the duty of all state authority.”126 Th is guarantee, along with the rights of personal integrity and freedom,127 and the right to the privacy of communication and of the home,128 are discussed fully in subsequent chapters. But the Basic Law has another, and for American observers a surprising,129 antiNazi feature. Beyond the liberal protections it secures, the Basic Law contains a number of provisions that are meant to ensure that the enemies of democracy will never again be able to exploit the freedoms inherent in democracy. For the enemies of freedom, the sentiment ran, there should be no freedom. The resulting fi nely wrought system of “undemocratic” provisions—meant to preserve and protect democracy as an institution even at the expense of individual liberty interests—has come to be known as “militant democracy.”130 To meet genuine threats to the political system, the Basic Law includes a number of provisions to safeguard democracy,131 including authority to prohibit “associations” whose aims and activities threaten the constitutional order (Article 9 (2)); authority to restrict the freedom of movement in order to avert an imminent threat (Article 11 (2)); authority to declare that an individual has forfeited his or her fundamental rights because they were being used to harm the free, democratic basic order (Article 18); and authority to ban political parties that pose a threat to the free, democratic basic order (Article 21 (2)).

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The most muscular forms of militant democracy have been rarely invoked.132 It had its most dramatic impact in the immediate postwar era when, pursuant to Article 21 (2) of the Basic Law, the Constitutional Court banned the Socialist Reich Party (srp) (the successor to Hitler’s National Socialist Party) and the Communist Party of Germany (kpd).133 As discussed in the preceding section, Article 21 (1) establishes the so-called party privilege, the principle that secures to all political parties the freedom to organize and mobilize the electorate.134 This freedom, however, is limited by the terms of paragraph 2: “Parties which, by reason of their aims or the behavior of their adherents, seek to impair or abolish the free democratic basic order or endanger the existence of the Federal Republic of Germany, shall be unconstitutional. The Federal Constitutional Court shall decide on the question of unconstitutionality.” The portentous language of paragraph 2, however, is far from clear. What is the meaning of “free democratic basic order”? How grave a threat to the democratic order is required to trigger a decision of unconstitutionality by the Federal Constitutional Court? Must the danger to the existence of the Federal Republic be clear and present, or is the mere probability of danger sufficient to warrant such a decision? Is it sufficient for a party to be merely antidemocratic in its general philosophy? When may a party reasonably be characterized as antidemocratic or anticonstitutional? When it advocates systemic changes in the existing polity? When it advocates criminal activity? When there is a plan of action, however remote, for the overthrow of democracy? These issues, and questions with broader meaning for German democracy and the Parteienstaat, were given more concrete meaning by the Court in the Socialist Reich Party Case. 5.14 Socialist Reich Party Case (1952) 2 BVerfGE 1 [The Socialist Reich Party (srp) was founded in 1949 as a successor to the rightwing German Imperial Party (Deutsche Reichspartei). Its publications, campaign appeals, and leadership convinced many people of its neo-Nazi orientation. Finding that the srp “seeks to impair the liberal democratic order,” the federal government petitioned the Federal Constitutional Court to declare the new party unconstitutional under Article 21 (2) of the Basic Law. After a hearing before the First Senate, which has original jurisdiction in party ban proceedings, the Court granted the application and banned the srp.]

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Judgment of the First Senate. . . . [Political Parties and the Free Democratic Order] E. . . . German constitutions following World War I hardly mentioned political parties, although even at that time . . . political parties to a large extent determined democratic constitutional life. The reasons for this omission are manifold, but in the fi nal analysis the cause lies in a democratic ideology that refused to recognize groups

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mediating between the free individual and the will of the entire people composed of the sum of individual wills and represented in Parliament by parliamentarians “as representatives of the entire people.” . . . The Basic Law abandoned this viewpoint and, more realistically, expressly recognizes parties as agents—even if not the sole ones—forming the political will of the people. The Basic Law’s attempt to regulate political parties encounters two problems. The fi rst relates to the principle of democracy, which permits any political orientation to manifest itself in political parties, including—to be consistent— antidemocratic orientations. The second relates to a special tension on the parliamentary level: The parliamentarian is to be a free representative of the entire people and at the same time be bound by a concrete party program. We must examine the fi rst problem in more detail. In a free democratic state, as it corresponds to German constitutional development, freedom of political opinion and freedom of association—including political association—are guaranteed to individual citizens as basic rights. But part of the nature of every democracy consists in the people exercising their supreme power in elections and voting. In the reality of the large modern democratic state this popu lar will can emerge only through parties as operating political units. Both fundamental ideas lead to the basic conclusion that the establishment and activity of political parties must not be restrained. The framers of the Basic Law had to decide whether they could fully implement this conclusion or whether, enlightened by recent experiences, they should instead draw certain limits in this area. They had to consider whether principles governing every democracy should limit the absolute freedom to establish parties on the basis of any political idea, and whether parties seeking to abolish democracy by using formal democratic means should be excluded from political life. They also had to take into account the danger that the government might be tempted to eliminate troublesome opposition parties. Article 21 of the Basic Law has tried to resolve these problems. On the one hand, it establishes the principle that formation of political parties shall be free. On the other hand, it offers a means of preventing activity by “unconstitutional” parties. To avert the danger of an abuse of this power, Article 21 authorizes the Federal Constitutional Court to decide the question of unconstitutionality and attempts to determine as far as possible the factual requirements for this declaration. At the same time, the fundamental ideas upon which this provision is based furnish important indicators for interpreting Article 21. . . . Because of the special importance of parties in a democratic state, the Court is justified in eliminating them from the political scene if, but only if, they seek to topple supreme fundamental values of the free democratic order that are embodied in the Basic Law. . . . We have thus stated the crucial determinants of the relationship between Article 21 and Article 9 (2) of the Basic Law [the latter provides freedom of association subject to certain restrictions]. Conceptually, parties are also “associations” within the

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meaning of Article 9 (2). Hence, Article 9 (2) would prohibit them under the conditions mentioned there and would subject them to the authority of the executive in general. . . . But if an association is a political party, it is also entitled to the privileges contained in Article 21 (1) because of the special status granted only to parties. . . . We derive the answer to the question of a party’s constitutionality from the consideration that a party may be eliminated from the political process only if it rejects the supreme principles of a free democracy. If a party’s internal organization does not correspond to democratic principles, one may generally conclude that the party seeks to impose upon the state the structural principles that it has implemented within its own organization. . . . Whether or not this conclusion is justified must be determined in each individual case. . . . [The Court analyzed the history of German political parties, especially the National Socialist German Workers’ Party (National-Sozialistische Deutsche Arberiterpartei, nsdap, or Nazis), then examined in detail dozens of letters between srp leaders and between party leaders and potential recruits. These documents showed that most srp leaders had been Nazis with positions in such organizations as the ss and sa and that they were actively seeking out other former Nazis.] G. II. 3. e. . . . The srp claims in its defense that other parties have also tried to enlist former National Socialists. . . . Th is objection shows that the srp misunderstands the situation. We do not reproach the srp for having tried to enlist former National Socialists, but rather for collecting the particularly hard-core individuals who have “remained true to themselves.” The srp recruited these persons not in order to gain positive forces for democracy, but to preserve and propagate National Socialist ideas. . . . f. . . . Both former and active Nazis gather in the srp in order to regain influence. . . . The srp systematically seeks them out and enlists them. . . . They form the core of the srp. . . . Former Nazis hold key positions in the party to such an extent as to determine its political and intellectual image. No decision can be made against their will. III. a. . . . The srp’s orga nization is also similar to that of the National Socialist Party. . . . Its internal structure is not in keeping with democratic principles (Article 21 (1) [3] of the Basic Law). . . . In brief, a party must be structured from the bottom up; that is, members must not be excluded from decision-making processes, and the basic equality of members as well as the freedom to join or to leave the party must be guaranteed. It would also contravene democratic principles . . . either to promise absolute obedience to party leaders or to demand such a promise. . . . [The Court then examined the srp’s bylaws and practices and found that authority flowed from the top down, not from members to leaders.] d. 2. The documents . . . show how the selection system under § 4 of the bylaws works. The srp allows only those who fight for the party to become members. The srp does not accept members of trial tribunals, political persecutees, people with

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serious criminal records, 20th of July people, etc. . . . [“20th of July people” refers to the group of army officers led by Colonel Claus Graf Schenk von Stauffenberg, who tried to assassinate Hitler on 20 July 1944, by placing a bomb in Hitler’s headquarters in East Prussia. “Political persecutees” refers to members of the Resistance and opposition parties whom the Nazis persecuted while in power.] 3. According to the bylaws, a member can be expelled only in an orderly proceeding of the Honorary Council. Numerous documents among the confiscated material prove, however, that the srp disregarded this provision, and not a single piece of evidence was found to show that the srp implemented the expulsion proceedings in accordance with the bylaws. . . . Th is practice corresponds exactly with the procedure in the National Socialist Party. . . . e. These facts demonstrate that the srp was governed in a dictatorial manner from the top down. Several published statements indicate that the srp was to be organized like a political order based upon the principle of absolute obedience. . . . In a letter of 25 December 1950, the party chairman revealed his intention to organize the party apparatus “according to principles of an officers corps” and to “make a ruthless reorganization in the sense of cadre organizations.” . . . f. The establishment of affi liated organizations like the Reichsfront, Reichsjugend, and Frauenbund also followed the example of the Nazi Party. The Reichsfront was conceived as an elite fighting group along the lines of the sa and ss and was also structured similarly. Its [organization] strongly reflected the Führer principle. The uniforms provided for the Reichsjugend were even the same as those for the Hitler Youth, the only difference being that the color of the shirt was olive green instead of brown. . . . g. The statements made . . . in connection with the srp’s clear imitation of the National Socialist Party’s organizational structure necessarily lead us to conclude that it seeks to impose its own organizational structure on the nation as soon as it has come into power, just as the National Socialist Party did. Thus, the SRP seeks to eliminate the free democratic basic order. . . . [The Court next embarked on a similarly exhaustive analysis of the srp’s program and the behavior of its leaders. The program showed that the party was committed to a revival of the mythical notions of an indestructible Reich and German racial superiority. In addition, the speeches and activities of party leaders demonstrated the party’s contempt for the officials and institutions of the Federal Republic and their acceptance of the idea of an authoritarian Führer state. Finally, the Court noted the revival of a vicious anti-Semitism in which “murderers are represented as innocent victims and surviving relatives of victims as criminals against humanity.”] H. 1. The srp is thus unconstitutional within the meaning of Article 21 (2) of the Basic Law. . . . Therefore, the party must be dissolved.

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Communist Party Case. The Socialist Reich Party Case gave the Court its fi rst opportunity to defi ne the grand purpose of the Parteienstaat. In short, Article 21 seeks to avoid any repetition of the one-party state that molded the Th ird Reich. Especially with that history in mind, the Court’s decision to declare the srp unconstitutional surely comforted the Allied powers. It occasioned few protests in Germany; the horrors of Nazism were still fresh in the memories of most people, and the new polity was struggling to establish itself in the face of doubts about Germany’s commitment to political democracy. Seen in this light, the ban on the srp appeared to be a manifestation of judicial enlightenment. In Socialist Reich Party the Court was required to make a fi rst pass at the interpretive lacunae of Article 21 (2). Above all, the Court defi ned the “free democratic basic order.” Peter Niesen explained the Court’s interpretation in these terms: “[n]egatively, the [free democratic basic order] is characterized by the absence of violent or arbitrary government. Positively, it is a basic order that satisfies the following necessary conditions: ‘Respect for human rights as laid down in the Basic Law—especially every person’s right to life and free development—respect for popu lar sovereignty, separation of powers, responsible government, an administration limited by the constitutional state principle, independent courts, multiple and equal political parties, including the constitutional right to the establishment and operation of an opposition.’ ”135 Although benefiting from the jurisprudential clarity provided by the Court’s ruling in the Socialist Reich Party Case, the Communist Party Case (1956) presented a much more difficult application of Article 21 (2).136 Chancellor Adenauer’s government initiated a party ban action against the Communist Party of Germany (kpd) in 1951, the same year it sought a declaration of unconstitutionality against the srp. Yet it took the Court another four years to decide the Communist Party Case. The delay reflected the growing feeling among some of the Court’s justices that the Adenauer government’s action against the kpd was unnecessary or, at least, premature. But in the face of rising Soviet–American tensions—tensions exacerbated by the division and rearming of Germany—the symbolic importance of the Communist Party Case was clear. Convinced that the government would not withdraw the case,137 the Court handed down an opinion on 17 August 1956 declaring the Communist Party of Germany unconstitutional. The opinion consumed 308 pages in the official reports, the longest by far of all the Court’s opinions. It was no surprise that the kpd suffered the same fate as the srp. The bulk of the opinion consisted of an exhaustive analysis of Marxism–Leninism and the history of German communism, including a survey of the kpd’s structure, leadership, campaign literature, and overall political style. The Court found, as a matter of ideology and fact, that the kpd directed all of its operations against the existing constitutional system. In interpreting Article 21 (2), the Court reiterated the definition of the free democratic basic order outlined in Socialist Reich Party. Its significant contribution to the jurisprudence consisted of the “clarification of an intensity threshold to warrant constitutional intervention against political activity

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hostile to the free democratic basic order.”138 On the one hand, the Court rejected the contention that illegal activity or some other “concrete undertaking” to abolish the constitutional order is necessary to deprive a party of its constitutional status.139 On the other hand, the Court found merely advocating the overthrow of the constitutional order to be an insufficient basis for banning a political party. What is important, said the Court, is whether a party has “a fi xed purpose constantly and resolutely to combat the free democratic basic order” and manifests this purpose “in political action according to a fi xed plan.”140 Th is purpose or plan, continued the Court, can be gleaned from a party’s program, its official declarations, statements of its leaders, and its educational materials. Peter Niesen summarized the Court’s ruling in these terms: The [Court] ruled that no actual danger to the existence of the democratic constitutional state need emanate from a party to warrant its exclusion. For a party to be banned, it need not be “probable by human standards, that there be the chance of [the party] realizing its unconstitutional goals in the foreseeable future.” The Court thus did not respond to an empirical danger emanating from a party unwilling to grant its competitors an equal chance, but to the logical possibility of a real danger, as it were: a logical danger.141

The Court’s independent examination of such records convinced it that the kpd was an unconstitutional party within the meaning of Article 21 (2). In a passage that set the jurisprudential benchmark for Germany’s militant democracy, the Court set forth the essential meaning of Article 21 (2): The Basic Law represents a conscious effort to achieve a synthesis between the principle of tolerance with respect to all political ideas and certain inalienable values of the political system. Article 21 (2) does not contradict any basic principle of the constitution; it expresses the founders’ conviction, based on their concrete historical experience, that the state could no longer afford to maintain an attitude of neutrality toward political parties. In this sense the Basic Law has created a “militant democracy,” a constitutional value decision that is binding on the Federal Constitutional Court.142

As in Socialist Reich Party the Court concluded the Communist Party decision by ordering the Party’s dissolution and the confiscation of its property. Dissolution, it reasoned, is the natural consequence of a judicial fi nding of unconstitutionality, since it authorizes federal and Land officials to implement the decree. A fi nal consequence of this decision was that the Communist Party lost its seats in both federal and Land parliaments. But this was not all the Communist Party lost. The Court’s decree dissolved not only the Party itself but all of its surrogate organizations, current and future. In 1961, for example, the newly established Communist Voters’ League ran candidates for the Bundestag in North Rhine–Westphalia. In litigation growing out of the Land’s refusal to put the league on the ballot, the Court held that the ban on the Communist

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Party of Germany extended to all organizations, including the Communist Voters’ League, that effectively succeeded the banned party.143 Militant Dormancy. As a symbolic matter, Socialist Reich Party and Communist Party announced the new Federal Republic’s general intolerance of political extremism, whether from the right or the left.144 But these cases were not essential to securing democracy in Germany. Neither the srp nor the kpd represented a significant political movement that realistically threatened to seize the democratic machinery through democratic means. For example, in the 6 May 1951 state elections in Lower Saxony, the srp’s supposed stronghold, the party drew only 11 percent of the vote and a mere four mandates, well “below what many observers feared.”145 The Communist Party of Germany also was plagued by disregard in that era. The kpd’s electoral strength dipped to 2.3 percent of the national vote in 1953. By 1956, the year the Court fi nally issued its ban, the Communist Party’s popu lar support had almost vanished. Some credit for West Germany’s political stability and security should be directed toward the country’s rapid and robust economic revival. The economic recovery (substantial in both East and West Germany146) was fundamental to peace, stability, and security because of the widespread devastation confronting the Germans. By the end of the war, Germany had been decimated.147 There was no housing.148 There was no transportation.149 There was no food.150 One commentator flatly summed up the postwar period in these terms: “Germany could not feed itself.”151 For the ordinary German, “the most pressing problem was survival itself.”152 These problems were exacerbated by the massive wave of westward migration that followed the war.153 On these facts, it is clear why economic development, and not the largely symbolic gesture of banning extremist political parties, came to be widely regarded by the Germans and the Allies alike as the best, practical means for stabilizing West Germany’s democracy. Tony Judt explained that “[t]he prospects for political stability and social reform in post–World War Two Europe all depended, in the fi rst place, on the recovery of the continent’s economy.”154 Exactly mirroring the concerns putatively addressed by the Constitutional Court’s seminal party ban cases, “the Allied authorities feared that nostalgia for the better days of Nazism, together with a reaction against denazification programmes, food shortages and endemic minor crime, could yet turn to neo-Nazi or even Soviet advantage.”155 The answer to these concerns, however, depended less on militarizing German democracy, as exemplified by the bans on the srp and kpd, and more on substantial and swift economic recovery. In the Radical Groups Case (1978)156 the Constitutional Court seems to have assimilated the general reluctance toward militant democracy’s illiberal spirit. In various election campaigns during 1975 and 1976 (both federal and at the Land level), radio and television stations in three German states denied campaign broadcasting time to three radical left-wing parties. The stations declined to carry the parties’ campaign ads because of their extreme revolutionary rhetoric, which called for the destruction of the existing political order. Administrative courts sustained the actions of the broadcasters. The affected parties—the Marxist-Leninist German Communist

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Party, the Communist Federation of West Germany, and the German Communist Party—brought constitutional complaints against these judicial decisions, alleging a denial of their rights as political parties under Articles 3, 5, and 21 of the Basic Law. The Court upheld the complaints, drawing a clear distinction between an organization’s status as a political party (and the right to enjoy the attending privileges) and its potential banishment as an unconstitutional party. The Court emphasized that “the fact that the complainants were possibly engaged in pursuing unconstitutional goals, especially the abolition of the parliamentary system, does not strip them of their character as political parties. . . . The phraseology of Article 21 (2) reveals that a political organization’s status as a political party is to be judged independently of its not-yet-determined constitutional or unconstitutional nature.” The Court wondered, wryly, why the Basic Law would provide a formal party ban process pursuant to Article 21 (2) if the consequences of a ban could be implemented before those proceedings had been conducted. In what seems like a liberal manifesto, at least compared with the Socialist Reich Party and Communist Party cases, the Court concluded that the extraordinary treatment of the radical parties threatened the equality of opportunity they were owed as parties participating in Germany’s political life. “The principle of equality of opportunity,” the Court said, “demands that every political party receive fundamentally the same opportunity during the election campaign and during the actual election process, thus maintaining an equal chance in the competition for electoral votes.” The National Democratic Party of Germany. There has been one exception to militant democracy’s general neglect. The German polity has remained persistently vigilant toward the National Democratic Party of Germany (npd). The state’s most recent moves against the npd, however, ended up raising more questions about the invasive activities of Germany’s domestic security agencies than it did about the npd’s deeply troublesome so-called neo-Nazi politics. Beginning in the 1960s the rise of the extreme right-wing npd began to stir concern in Germany. The npd, however, was not immediately declared unconstitutional. Nevertheless, in the 1970s the Interior Ministry published a report that described the npd as a “party engaged in anti-constitutional goals and activity”; as “radical right and an enemy of freedom”; and as “a danger to the free democratic basic order.” The npd challenged the Interior Ministry’s “disclosure” as a violation of the “party privilege” secured by Article 21 (1). A unanimous Court ruled that state agencies concerned with the protection of the Basic Law were constitutionally permitted, if not required, to make such fi ndings about a party engaged in anticonstitutional activities, even if the Court has not yet declared the party unconstitutional.157 A quarter century later, a startling rise of neo-Nazi and anti-Semitic incidents, many occurring in the new, economical ly depressed states of the former East Germany, led the center-left government of spd Chancellor Gerhard Schröder to organize a united effort, along with the Bundestag and the Bundesrat, to seek an Article 21 (2) ban of the npd. The general reluctance toward invoking Article 21 (2) was overcome

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in this case by a number of factors. First, there was genuine, widespread shock and revulsion in Germany at the surge in racist, xenophobic, and neo-Nazi sentiment, which unquestionably found expression in the npd’s political platform. In November 2000, more than 200,000 people joined the “Uprising of the Decent” (Aufstand der Anständingen) in the streets of Berlin to remember the victims of Nazi crimes and to show opposition to Germany’s neo-Nazi movements.158 Second, the government’s strident opposition to the npd could also be credited, in part, to personal biography. Several members of the government, including Chancellor Gerhard Schröder (spd), Interior Minister Otto Schily (spd), and Foreign Minister Joschka Fischer (Green Party), had been involved in Germany’s new left movement in the 1970s, which was in part characterized by its deeply rooted antipathy for right-wing extremism. The personal nature of the dispute was highlighted by the clash between Interior Minister Schily, the mastermind of the government’s npd party ban policy, and npd lawyer Horst Mahler. Back when both were young left ists, Schily represented and won Mahler an acquittal on criminal charges arising out of Red Army Faction (Rote-Armee-Fraktion) activities.159 In an irony of history, Mahler converted to right-wing extremism while serving a prison sentence in another criminal matter and, after his release from prison, assumed a prominent role in the npd. Schily had also seen his politics shift rightward, albeit to a more moderate degree; his tenure as interior minister was characterized by tough law-and-order policies.160 In October 2001, the Federal Constitutional Court found the three Article 21 (2) applications admissible. They had been fi led respectively by the federal government, the Bundestag, and the Bundesrat.161 But even before the Second Senate issued this historic ruling, there were signs of the procedural shortcomings on which the case would ultimately founder. In July 2001 the Court granted npd lawyer Horst Mahler’s motion to enjoin the Berlin prosecuting attorney to return computer equipment— and the data it contained, which had been seized from Mahler’s office.162 The Berlin local authorities were investigating Mahler for a violation of Germany’s hate-speech law, on the basis of Mahler’s incendiary anti-Semitic publications. Mahler’s motion to the Court was treated as part of the party ban proceedings and not as a separate matter. He alleged that the curious timing of the investigation, coinciding with his preparation of the npd’s case in the party ban proceedings, imperiled the party’s ability to defend itself and receive a fair hearing. There was certainly the risk that the party’s strategy and case preparation would be revealed to public authorities in their examination of the seized material. The Second Senate unanimously granted the temporary injunction, concluding that the investigation risked undermining the high procedural standards the Court intended to uphold in party ban proceedings. “Also in party ban proceedings,” the Court explained, “the concerned party has a right to a fair process.”163 Ultimately, the aggressive approach adopted by state agents toward the npd undermined the attempt to ban the party. In January 2002, just days before the planned hearings in the case, the Second Senate suspended the proceedings.164 Through ex parte communications, the Court learned that much of the evidence it considered in the

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admissibility phase of the case, and upon which it would be expected to rely in its substantive ruling on the ban, had come from highly placed state agents and informants working within the npd.165 These agents were paid informers guided, directed, and supervised by the state agency receiving the information.166 The danger that state agents might provide manipulated evidence or influence the party’s activities was a serious matter. In fact, the npd had planned to argue in its defense that the evidence offered against it was the product of these “secret” agents. At one hearing, it was revealed that 15 percent of the npd’s Executive Council consisted of informers who were supervised and paid by state agencies for the protection of the constitution.167 In a March 2003 ruling dismissing the party ban case against the npd, the Court focused on the procedural implications of the deep infi ltration of the party by state agents and not on the substantive question of the npd’s compatibility with the free democratic basic order. The outcome hinged on the application of the rule requiring a two-thirds majority for decisions in party ban proceedings that negatively impact the party.168 Thus, a minority of three justices prevailed in having the case dismissed, even though a majority of the Court would have allowed the proceedings to go forward. The prevailing three-justice minority concluded that the role of the state agents violated the high standard of procedural fairness required of such a radical measure of militant democracy. The decision suggests an increasingly strict jurisprudence that should make party bans even more difficult to obtain.169 Some herald this as a sign of political and democratic maturity. Germany, so the argument goes, no longer needs to resort to illiberal measures in order to preserve its liberal character. Instead, German society can now concern itself with promoting the constituent elements of the free democratic basic order for all, trusting a citizenry now steeped in a vibrant democratic culture to pursue the best interests of a liberal society through the unfettered marketplace of ideas. 5.15 NPD Party Ban Dismissal Case (2003) 107 BVerfGE 339 [The Court was unanimous in its decision that Article 15 (4) of the fcca, requiring a two-thirds majority for “disadvantageous decisions against the respondent,” applied to the procedural question whether the case should go forward in light of the revelation of the presence of state agents among the npd’s leadership. In reaching this conclusion the Court explained that a “disadvantageous decision” under Article 15 (4) is any decision that “deteriorates the legal position of the respondent or in some way might negatively influence its standing.” More significantly, as regards a trend in the Court’s militant democracy jurisprudence, the Court emphasized that the higher standard was necessitated by the distinct and special role the Basic Law accords to political parties in Article 21 (1). Echoing its decision in the Radical Groups Case (1978), the Court explained that even those parties suspected of antidemocratic tendencies enjoyed this special standing, at least until the resolution of the party ban proceedings. Having imposed

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the two-thirds majority rule, a minority of the Court was empowered to conclude that the role of state agents in the leadership of the npd presented an irreparable obstacle to the fairness required in party ban proceedings.]

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Judgment of the Second Senate. . . . B. II. 2. The Federal Constitutional Court has previously had no occasion to give its opinion in principle on the limits of permissible surveillance of political parties by state authorities using intelligence ser vice methods. Even in the context of the present decision, this question arises only with regard to a specifically defi ned aspect within a more extensive problem area. To what extent is it compatible with constitutional requirements applicable to proceedings under Article 21 (2) of the Basic Law to seek and maintain intelligence contacts at the federal and Land level between state agents and members of the executive of the party whose constitutionality is at issue? The implications of such a scenario are exacerbated if the intelligence contacts are pursued directly in connection with the fi ling of applications initiating proceedings to ban the party. Furthermore, to what extent do procedural requirements relating to the constitutional state principle allow those seeking to ban the party to base the grounds of their application partly on public statements by party members who maintain or have maintained intelligence contacts with state authorities? [The prevailing three-justice minority extrapolated from the due process limits placed on state interference in the criminal law context.] Even in Constitutional Court proceedings under Article 21 (2) of the Basic Law, the Federal Constitutional Court is assigned two responsibilities. First, it bears the sole competence for determining the unconstitutionality of a party and for pronouncing the legal consequences pursuant to § 46 (3) of the Federal Constitutional Court Act. Second, it is in the position to guarantee the observance of the constitutional requirements of the decision-making process. If, in the course of the proceedings, there are serious violations either of objective constitutional law or of the subjective rights of the respondent, the Court is required to examine whether there is an overriding state interest in the continuation of the proceedings, or whether the continuation of the proceedings would confl ict with the constitutional requirements concerning the adherence of those proceedings to the constitutional state principle and with the constitutionally necessary protection of the respondent’s rights. Acceptance of a procedural bar with the consequence of immediate discontinuation of the proceedings can admittedly be considered only as the ultima ratio of possible legal consequences for violations of the constitution and only insofar as this is compatible with the specific danger-averting purposes of proceedings under Article 21 (2) of the Basic Law. The prerequisite for discontinuing such proceedings has three parts. First, a constitutional violation of considerable gravity must exist. Second, the

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constitutional violation must cause nonremediable damage, in terms of the constitutional state principle, for the conduct of the proceedings. Th ird, the harm resulting from the constitutional violation must render the continuation of the proceedings unacceptable from the point of view of the constitutional state principle, even when weighed against the interests of the state in effective protection from the dangers posed by a party that may be acting unconstitutionally. 3. a. The surveillance of a political party by agents of state authorities acting as members of the federal executive committee or a Land executive committee immediately before and during the conduct of party ban proceedings before the Federal Constitutional Court is, as a rule, incompatible with the requirements of proceedings based on the constitutional state principle, which result from Article 21 (1) and (2) of the Basic Law in conjunction with the constitutional state principle in Article 20 (3) of the Basic Law. . . . [Having concluded that state interference with party activities compromises the fairness of the process in a party ban proceeding, the prevailing threejustice minority nonetheless cautioned that state agents are properly charged with protecting the constitutional order through such activities, even as state infi ltration leads to an unavoidable influence on the party’s will formation and activities.] cc. The senate did not have to decide in the present case whether intelligence service cooperation with members of a political party’s executive committees at Land and federal level is inherently unconstitutional. Of course, any such conclusion would have to take special situations of heightened danger into account. In any event, such an assessment under constitutional law is unavoidable when the state presence at the leadership level of the party is maintained immediately before and during the proceedings under Article 21 (2) of the Basic Law. The constitutional guarantees of the freedom to form and belong to political parties, (partly) ensured by the guarantee of freedom from state interference and selfdetermination, are supplemented and strengthened after the initiation of party ban proceedings by specific procedural safeguards that are generally described as the principles of fair process respecting the constitutional state principle. In this respect, some specific features of party ban proceedings, in contrast to, in par ticu lar, criminal proceedings, must be emphasized at the outset. Criminal proceedings are concerned with establishing culpable and punishable individual behavior and the enforcement of the state’s right to punish, and thus primarily with punitive state protection of legal rights. By contrast, constitutional court proceedings under Article 21 (2) of the Basic Law are for the preventive protection of the constitutional system of freedom and democracy, one of the main foundations of the state system. The political party as an organization appears here in the role of the potential enemy of the state and the constitution. The party is given, before the Federal Constitutional Court, the opportunity—possibly for the last time—to present, in answer to the arguments of the applicants declaring that a ban on the party is

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necessary in order to avert danger, the image of a loyal institution under constitutional law, whose further participation in the process of forming public opinion and governmental intention is necessary and legitimate in precisely the interest of a constitutional system of freedom and democracy. In that situation, the freedom to form and join a political party, in the sense of freedom from state interference and of selfdetermination, acquires special significance: members of the leadership who are confronted with confl icting claims of loyalty, emanating from the state as principal/ employer and from the party under surveillance, fundamentally weaken the position of the party as a respondent before the Federal Constitutional Court. They inevitably falsify the free and self-determined self-portrayal of the party, which is necessary from the point of view of the constitutional state principle, in constitutional court proceedings. That effect does not depend on the applicants’ having factual information about the party’s “procedural strategy” in the ban proceedings. The mere presence of “dual capacity” “intermediaries,” connected in law and in fact both with the state and with the party, is sufficient. It is also irrelevant in this context how an affected political party views its surveillance by state agencies, whether it treats it ironically, whether it feels threatened or whether it more or less uses the opportunity to expose state organs. Only the objective facts, and not the subjective point of view of a party subject to party ban proceedings, are constitutionally relevant. dd. Against that background, the requirements based on the constitutional state principle concerning ban proceedings under Article 21 (2) of the Basic Law and §§ 13 (2), 43 et seq. of the Federal Constitutional Court Act impose strict freedom from state interference in the sense of unobserved, self-determined formation of intention and self-portrayal of the party before the Federal Constitutional Court. The Constitutional Court’s banning of a political party, which is the sharpest weapon—and, moreover, a double-edged one—a democratic, constitutional state has against an orga nized enemy, needs a maximum of legal certainty, transparency, predictability, and reliability of procedure. Th is also applies to the factual material to be assessed. Only unequivocal and open attributions concerning persons, conduct, and statements, directed either toward the sphere of the applicants or toward that of the respondent, enable the Court to reach and account for a constitutionally justifiable decision on the unconstitutionality or constitutionality of the party as a result of proceedings orga nized in accordance with the constitutional state principle. b. Whether a violation of the constitutional requirements concerning the form and organization of proceedings causes irreparable damage to the conduct of the proceedings, from the point of view of the constitutional state principle, is a question that does not allow a general, abstract answer. That is so much more the case if the continuation of the proceedings is impossible, in terms of the constitutional state principle, even when weighed against the state’s interests in effective protection from the dangers posed by a party. The significance of the constitutional violations and their consequences for the proceedings can be assessed only on the basis of a com-

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prehensive appraisal of the specific procedural situation, and regard also must be had, when striking the necessary balance, to the actual dangerous situation that a possible discontinuation of the party ban proceedings might trigger. . . . 4. The nature and intensity of the surveillance of the respondent by the federal and Land constitutional security authorities immediately before and after the federal government’s application for a ban was received at the Federal Constitutional Court on 30 January 2001 violates the requirements of constitutional law. Significant reliance in the grounds of the application on statements made by members of the challenged political party who are or were confidential agents of governmental authorities also violates the requirements of constitutional law. . . . d. aa. The failure, in violation of the constitutional state principle, to comply with the imperative rule of strict freedom from state interference for the respondent in proceedings under Article 21 (2) of the Basic Law is not remediable. . . . bb. No special reasons are apparent at the present time, which, in view of the specific preventive purposes of the proceedings under Article 21 (2) of the Basic Law, could exceptionally justify the continuation of the proceedings. Th is is especially true when the state’s interest in continuing the proceedings is considered alongside the established, serious breaches of the elements of the constitutional state principle.

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The majority of the Court dissented from the position taken by the prevailing threejustice minority in NPD Party Ban Dismissal. First, the dissenters argued that less drastic remedies in the case, including the exclusion of implicated evidence, could overcome the potential taint resulting from state agents’ infi ltration of the npd. Second, the dissenters saw a strong presumption, based on the constitutional duty to provide a judicial remedy (Justizgewährungspfl icht), in favor of allowing the party ban proceeding to continue.170 More fundamentally, the dissenters argued that “the freedom of political parties guaranteed in Article 21 (1) of the Basic Law did not heighten the generally applicable constitutional standards of procedural fairness” in party ban proceedings.171 The dissenters argued that, under traditional standards of procedural fairness, a party’s political freedom would only be infringed to a degree requiring dismissal for a violation of fair process if it were proven that the state agents had exercised “control over the respondent’s decision-making process . . . [but] there was not ‘the slightest indication’ of any substantial governmental influence on the respondent’s decision-making process” in this case.172 Finally, the dissenters argued for a protective effect for Article 21 (2). The prevailing three-justice minority had, in part, characterized the question of dismissal as a function of striking a balance between, on the one hand, the npd’s guaranteed freedom and, on the other hand, the public’s interest in having legitimate party ban proceedings run their course. The dissenters argued that, in such a balancing, the public’s interest was weightier. Th is position was supported by a characterization of the party ban as more

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than a guardian against mere abstract, ideological threats to the free democratic basic order. Instead, the dissenters saw a role for Article 21 (2) in providing protection against actual and, in the case of increasing neo-Nazi violence, physical threats to human dignity, life, and physical integrity. Th is more expansive role for Article 21 (2), however, could only be realized if the party ban process were used preemptively to abolish “a party before it poses any actual or clear and present danger (konkrete Gefahr) to the basic values enshrined in the constitution. . . .”173 The dissenters believed that evidence of the npd’s threat as a konkrete Gefahr to human life and dignity could be drawn from its public activities, independent of the evidence potentially tainted by state agents. A decade after the fi rst, failed attempt to ban the npd, there was renewed talk of a challenge to the party’s constitutionality. The npd’s links to the suspects in a string of murders that had targeted foreigners justified the scrutiny. But evidence in the case of neglect—or worse, complicity—by agents and informants working on behalf of federal and state security ser vices seemed certain to complicate any new party ban application involving the npd. Whether or not a new case would materialize, references to this procedure remain a rare (a second case against the npd would be only the ninth in the history of the Federal Republic) but persistent part of postwar Germany’s political discourse. That suggests that the broadest interpretation of the prevailing justices’ opinion in NPD Party Ban Dismissal has not carried the day. By calling the party ban “the sharpest weapon . . . a democratic, constitutional state has against an organized enemy,” it is possible that the prevailing justices intended to signal the fading relevance of militant democracy for Germany’s mature, tested, and stable democracy. To the contrary, the memory of the past mingles with the spirit of contemporary crises to justify German political elites’ resort (if only rhetorical) to the principle of militant democracy.

conclusion The Federal Constitutional Court is an important custodian of political democracy. It has expanded the rights of voters and furthered equality of opportunity among competing political parties. While guarding the integrity of elections and insisting on the one-person, one-vote principle in single-member election districts, it also has defended the principle of effective representation exemplified in the mixed memberproportional system of representation. In addition, the Court has vigilantly shielded minority and unconventional parties against discriminatory legislation, particularly with regard to participation in parliamentary activities, party fi nancing, and requirements for gaining access to the ballot. At th