Bundesverfassungsgericht (Federal Constitutional Court), Second Senate, Decision of 29 September 1990, case no. 2 BvE 1/90 and others, NJW 1990, 3001
The following has been reproduced from: Raymond Youngs, Sourcebook on German Law, Cavendish 1994, with kind permission by the author.
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THE ALL GERMANY ELECTION CASE
FCC NLWJ 1990 Volume 47 p. 3001
1. Electoral law for the election for the whole of German on the 2 December 1990
BL Art. 21 I, 38 I; FEA §§ 6 VI 1, 53 II
1. It follows from the principles of formal electoral law equality and equality of chance for the parties that only a narrow measure of latitude remains for the legislator for discriminating in the regulation of election law for political bodies. Such discriminations always need a pressing ground for their justification.
2. (a) The reconcilability of a barrier clause with the principle of equality in the election cannot be assessed once and for all in abstract terms. The circumstances of the State for which it is to apply have to be considered when it is enacted.
(b) If the electoral legislator meets with special circumstances which cause a quorum of 5% to become impermissible, he must take them into account. At the same time he is, in principle, free to relinquish a barrier clause, to reduce its limit, or to use other appropriate measures. If he regards it as advisable to adhere to his barrier clause of 5%, but to mitigate its effects, the means upon which he determines in order to effect the required mitigation must be reconcilable with the Constitution and especially satisfy the principles of election law equality and equality of chances of the parties.
3. An election statute which makes it possible for parties to combine their State lists, as a mere partnership made for counting purposes, in order to overcome the 5% clause (combination of lists) – in contrast to a regime which allows the parties to make up a common list (fusion of lists) – weights the result of electors’ votes unequally without any compelling ground and therefore offends against the principle of election equality and equality of chances.
4 (a) The first election for the whole of Germany, for the German Federal Parliament, takes place under special circumstances which do not permit an unchanged preservation of the traditional barrier clause of 5% based on the electoral area.
(b) Under the special conditions of this election a barrier clause is unobjectionable in constitutional law if it is not based on the whole electoral area but allows parties to participate in the proportional settlement if they reach 5% of the votes cast for their State lists, either in the former territory of the Federal Republic of Germany inclusive of Berlin (West), or in the territory of the German Democratic Republic inclusive of Berlin (East).
(c) The differing starting conditions of the parties and political alliances entering the election in the area of the German Democratic Republic cannot be sufficiently compensated for by regionalisation of the barrier clause alone. The permitting of fusions of lists for parties and political alliances, insofar as they have their domicile in the territory of the German Democratic Republic, presents itself as providing a compensatory effect.
FCC judgment of 29 September 1990 – 2 BvE 1/90 u.a.
On the facts of the case: The applicants (the Federal party “the Republicans”, “the Greens” party and the Left List/PDS) want to participate as political parties in the first election for the whole of Germany on 2 December 1990. They proposed to establish in the public institutions action: The German Federal Parliament has violated the rights of the applicants under Art. 38 I of the BL in combination with Art. 21 of the BL by virtue of the fact that, in Art. 1 of the Statute to the Treaty of 3 August 1990 between the Federal Republic of Germany and the German Democratic Republic on the preparation and implementation of the first election for the whole of Germany for the Federal Parliament as well as to the Treaty of 20 August 1990 amending this Treaty, the Federal Parliament agreed to this Treaty as well as to the Amendment Treaty; and Art. 2 no. 2 of the above mentioned Statute with a new formulation of § 53 II of the FEA preserving the barrier clause of § 6 IV of the FEA in the formulation published on 1 September 1975 (FLG I, 2325) has provided that the State lists of various parties which do not submit election list proposals at the same time in any State – with the exception of Berlin – can be joined by a declaration made to the Federal Election Director.
Two applicants proposed additionally to establish: The Federal Council infringed the rights of the applicants under Art. 38 I of the BL in combination with Art. 21 of the BL by virtue of the fact that it agreed to Art. 1 and Art. 2 no. 2 of the Statute to the Treaty of 3 September 1990 between the Federal Republic of Germany and the German Democratic Republic on the preparation and implementation of the first election for the whole of Germany for the Federal Parliament as well as to the Amendment Treaty of 20 September 1990.
The constitutional complaints, which are combined with the public institutions action for the purpose of a joint decision, are likewise directed against the Statute on the Election Law Treaty. The complainants, members of “the Greens” party, are entitled to vote at the election for the 12th German Federal Parliament and are competing for Federal Parliament seats, the first complainant as constituency candidate; the second complainant has received a list place in the fifth place on a State list of his party. The FCC has decided:
I. In the constitutional complaint proceedings:
1. § 53 II of the FEA in the formulation of the Statute of the 29 August 1990 to the Treaty of the 3 August 1990 between the Federal Republic of Germany and the German Democratic Republic on the preparation and implementation of the first election for the whole of Germany for the Federal Parliament as well as the Amendment Treaty of 20 August 1990 (FLG II, 813) infringes the right of the complainants to equality in the election under Art. 38 I of the BL and is void.
2. § 6 VI 1 alternative 1 of the FEA in combination with Art. 1 of the statute mentioned at 1. of 29 August 1990 infringes the complainants’ right to equality in the election under Art. 38 I 1 of the BL insofar as it applies the barrier clause to the whole electoral area for the first election for the whole of Germany for the German Federal Parliament; to this extent the provision is irreconcilable with the Basic Law.
II. In the public institutions action:
The German Federal Republic has infringed the right to equality of chances, under Art. 21 I and Art. 38 I of the BL, of the applicants by passing the statute of 29 August 1990 mentioned at I 1 and the Federal Council by declaring its agreement to this statute has infringed the right to equality of chances, under those Articles, of the first and third applicants in the action to the extent evident from Number 1 of the judgment.
C. The applications and constitutional complaints are well founded.
I. The principle of election equality, guaranteed for the election to the German Federal Parliament in Art. 38 I 1 of the BL, is in accordance with the consistent case law of the FCC to be understood in the sense of a strict and formal equality because of the connection with the egalitarian democratic principle (compare especially FCCD 51, 222  = NLWJ 1979, 2463 with further references; FCCD 78, 350 [357 and onwards] = NLWJ 1989, 285). The democratic order set up by the Basic Law thus, in the realm of elections, evaluates the votes of all the citizens of the State equally without regard to the differences existing between them. Therefore differentiation of the computed value and in principle also – for an election by proportional representation – the effective value of the electors’ votes is excluded.
As it is above all the parties which unite the citizens organisationally for the elections into political operational units, it follows from the formalised equality requirement in the realm of elections that the principle of equal chances of competition for the political parties and electoral alliances is also to be understood in the same formal sense. The right of the parties to equality of chances in the elections follows from their constitutional law status described in Arts. 21 I and 38 I 1 of the BL and from the importance which belongs to the freedom of party formation guaranteed in it and the multi-party principle for free democracy (compare FCCD 73, 1 [28 and onwards] = NLWJ 1986, 2492; FCCD 73, 40 [88 and onwards] = NLWJ 1986, 2487; consistent case law). It controls the election procedure in the same way as preparation for the election. Democracy cannot function if the parties do not enter the election contest in principle under the same legal conditions (compare FCCD 44, 125  = NLWJ, 1977, 1054). When the legislator regulates the area of formation of political will in elections in a manner which can change the equality of chances of the political parties and electoral alliances, especially narrow boundaries are set for its creative latitude; in principle, any different treatment of parties or electoral groupings is, by virtue of the Constitution, denied to him (compare FCCD 51, 222  = NLWJ 1979, 2463 with further references).
It therefore follows from the principles of formal electoral law equality and equality of chances of the parties that only a narrow measure of latitude for differentiations remains for the legislator in the regulation of electoral law for political bodies. Such differentiations always need a pressing reason for their justification here. The securing of the functional capability of the representatives of the people who are to be elected has repeatedly been regarded in the case law of the FCC as a reason of sufficiently pressing character which justifies differentiations in electoral law equality in the system of proportional representation (compare FCCD 1, 208 [247 and onwards]; 4, 31  = NLWJ 1954, 1601; FCCD 6, 84 [92, 93 and onwards] = NLWJ 1957, 377; FCCD 51, 222  = NLWJ 1979, 2463). The principle peculiar to the proportional representation system, to portray the political will of the electorate as nearly as possible to reality in the body which is to be elected, can have as a result the splitting up of the elected representatives of the people into many small groups, which would impede or prevent the formation of a stable majority. Insofar as it is required for the securing of the capability of parliament to operate and decide, the legislator may for that reason weight the effective value of the votes differently in a proportional representation election.
For the sake of this objective, the legislator is permitted, in principle, to secure the functional capability of the representatives of the people who are to be elected by a barrier clause. In this connection, a quorum of 5% is as a rule not to be objected to in constitutional law. However, the FCC emphasised early on that the reconcilability of a barrier clause with the principle of equality in elections cannot be abstractly assessed once and for all. A provision of electoral law could be justified in one State at a certain point in time and not in another State at another point in time; the circumstances of the State to which it is to apply are to be considered at the time it is made (compare FCCD 1, 208 ; see also FCCD 51, 252 [236 and onwards]. In that connection it is emphasised that an assessment of the barrier clause which diverges from the traditional one can afterwards prove to be necessary – even if only temporarily – if circumstances within a State change substantially, perhaps by a substantial widening of the spatial area of validity of the electoral statute, occurring shortly before the election, by an area with another party structure.
If the electoral legislator finds special circumstances in this sense, he must take them into account. In this connection he is free in principle to forego a barrier clause, to reduce its limit or to take other appropriate measures. If he regards it as advisable to adhere to a barrier clause of 5% but to mitigate its effects, the means upon which he determines to effect the required mitigation must, for his part, be reconcilable with the Constitution and especially satisfy the principles of electoral law equality and equality of chances of the parties. A provision mitigating the effect of the barrier clause cannot therefore be justified only on the grounds that, in comparison to the unrestricted effect of such a clause, it represents a “concession”. Rather can a requirement only survive in constitutional law if it operates neutrally in respect of the election contest of the parties (compare FCCD 14, 121  = NLJW 1962, 1493). This neutrality can also require that the legislator may not, in connection with barrier clauses, ignore distortions of the election contest which are caused by law and which present themselves as special circumstances in the sense mentioned.
II. The first election for the whole of Germany for the German Federal Parliament, to which the legislative measures objected to refer, takes place under special circumstances which will not therefore recur and of which the electoral legislator must take account in connection with a barrier clause. It differs from other elections by virtue of the fact that the political parties and alliances must, in a short period, adapt themselves to a widened electoral area and additionally part of the parties and alliances participating in the election could only organise themselves and become politically active during the last few months.
1. The extension of the Federal Elections Act to the territory of the States of the German Democratic Republic has as a consequence that these States become parts of the electoral area in the sense of the requirements of the Federal Elections Act (§ 21 of the FEA). The first election for the whole of Germany takes place only a year after the peaceful revolution in the German Democratic Republic. Between the restoration of an electoral area of the whole of Germany, which unites two territories separated for 40 years and the day of the first election for the whole of Germany there will be just three months. This development leaves a number of parties no sufficient possibility to widen their effective area to the electoral area newly added at that time and to present themselves there with the prospect of success and to solicit the votes of electors. In particular the parties have only limited opportunity, until the Federal Parliament election, to participate in the municipal or State Parliament elections and thereby to make known to the voter their programme and candidates in the newly added electoral areas.
(a) From this starting point, a 5% barrier clause applied to the whole electoral area burdens the parties which until now were to some extent active only on the territory of the German Democratic Republic much more heavily at present than the parties only active until now in the Federal Republic of Germany. According to the findings of the Federal Parliament Committee on German Unity (FP-PM – 11/7652 – new, p. 5), the retention of the barrier clause leads, in relation to the parties and political alliances limited until now in their effective area to the territory of the German Democratic Republic, to their having to – based on the area of their activity until now – aim for 23.75% of the second votes in order to overcome the 5% hurdle and thereby be represented in the Federal Parliament. In comparison, the parties in the Federal Republic of Germany – based on their effective area until now – must reach something over 6% of the second votes.
A further special circumstance which must be considered by the electoral legislator arises from the fact that parties and political alliances, apart from the National Front, could only organise themselves and become active since the revolutionary change in the German Democratic Republic. In comparison to the parties which had been active over a long period, their organisational, personnel and financial fundamentals of operation are therefore not so fully developed; and only a short time is available to them for the development of their programme and their collaboration with other political groups.
(b) These differences are not the responsibility of the political parties and alliances or to be attributed to them on other grounds. They are caused by the change in the applicable law. Until the extension of the Federal Elections Act, only political parties with a domicile or business management within the area of applicability of the Act were authorised to make election proposals in the Federal Republic of Germany (§ 18 of the FEA; § 2 III no. 2 of the PA). In the elections to the Peoples Chamber of the German Democratic Republic on 18 March 1990 the right to make an election proposal only belonged to parties and political alliances with a domicile in the State territory of the German Democratic Republic (§ 81 of the Statute regarding the Election to the Peoples Chamber of the German Democratic Republic of the 18 March 1990 of 20 February 1990 [SG I, 60]; § 5 II of the Statute regarding Parties and other Political Alliances of 21 February 1990 [SG I, 66]). The Election Treaty of 29 August 1990 replaces the electoral law applying until now in the German Democratic Republic and modifies the Federal Elections Act with effect for the Federal Republic of Germany by the widening of the electoral area, and the participation of parties and political alliances with differing organisational starting conditions, and therefore in two points of significance for the equality of chances of the parties.
The difference in the organisational starting conditions is also based on legal grounds. According to the Regulation regarding the Founding and Activity of Societies of 6 November 1975 (SG I, 723) formerly applying in the German Democratic Republic, alliances needed State recognition for the exercise of their activity (§ 2 I); this would only be granted if the societies corresponded to the principles of the socialist order of society in their character and their objectives (§ 1 II). Political parties could only exist within the National Front of the German Democratic Republic (Art. 3 II of the Constitution of the German Democratic Republic of 6 April 1968 in the version of 7 October 1974 [SG I, 425]. These prohibitions on founding and activity have only recently been lifted. These differences, established by the legal order, are not differences which the electoral legislator had to accept on the basis of his duty of neutrality, but inequalities which he could not leave out of consideration in a barrier clause regime.
2. Contrary to the view advocated by the New Forum in the oral hearing, there is no special circumstance which is to be considered by the electoral legislator in the duties which are addressed in Art. 5 of the Unification Treaty. According to this the legislative bodies are “recommended” to consider the questions posed in connection with German Unification on alterations or additions to the Basic Law and especially with the question of the application of Art. 146 of the BL and of a referendum within that framework. The 12th Federal German Parliament itself does not thereby become a constitution-creating or constitution-designing assembly in the sense of an activity of constitution-creating power. It can therefore remain undecided whether such duties would exclude the application of a barrier clause.
III. 1. The matter does not however rest with the finding that special circumstances were present at the first Federal Parliament election for the whole of Germany which forbid adherence to a 5% barrier clause applied to the whole electoral area. The legislator has in fact weakened the effect of the barrier clause by § 53 II of the FEA. He intended thereby to enable “parties, which had been formed in one of the two German states and had not yet created for themselves the organisational basis for the election for the whole of Germany by merger with a party in the other State, to enter into combinations of lists and thereby to bring into effect the total amount of the second votes given for them in the election” (FP-PM 11/7624 p. 21; compare also the Report on the Deliberations of the Committee on German Unity regarding the proposal for the Statute to the Electoral Law Treaty with the reference to the fact that a large majority in the Committee had agreed with the opinions of the Federal Minister of the Interior Dr. Schäuble according to which there had been a wish “to take into account the circumstance that after 40 years of division there were groupings and parties who, until now, could only be politically active in one or the other part of Germany” FP-PM 11/7652 – new, p. 7).
Accordingly, the regime under discussion is to be examined to see whether it removes, in a way that cannot be faulted in constitutional law, the special difficulty which has arisen for political parties and alliances in the face of the widening of the electoral area and, connected with that, the increased exclusionary effect of a barrier clause of 5% related to the electoral area.
2. This question is to be answered in the negative.
(a) Entering into a combination of lists is limited by the competition clause of § 53 II of the FEA. Its effect is that only those parties are enabled to combine their lists which do not submit electoral list proposals at the same time in any State – except Berlin. It thereby has as a consequence a – contrary – differentiation of the effective value of those election votes which relate to a list with less than 5% of the votes. It must therefore be measured against the requirements of formal equality. These are – leaving out of account fundamental doubts yet to be discussed about combination of lists of different parties – not satisfied simply because it does not favour in the same manner all parties to which the basic concept of § 53 II of the FEA applies (compare FCCD 6, 84 [97, 98] = NLWJ 1957, 377).
Only some of the smaller parties receive, from the start, a chance to participate in the proportional adjustment in spite of non-attainment of the quorum. In the abstract, the possibility of combination of lists is available to all parties and political alliances. But electoral law must orientate itself not to abstractly invented cases, but to political reality (FCCD 1, 208 ). If one takes this into account, the number of possible combinations of lists is reduced drastically. By far the greater part of the parties to whom the basic concept of § 53 II of the FEA applies will find no partner for a list combination, without this being based on the programme or on other circumstances which can be influenced by the party. This is because, in contrast to the position under an unlimited possibility for combination of lists, in practice under the regime of the competition clause only two parties can ever enter into a combination of lists if they want to attain the result intended thereby – the overcoming of the barrier clause. That applies in any case if the parties – as is the rule – submit electoral list proposals at least in the territory of the German Democratic Republic of Germany or in the territory of the Federal Republic of Germany in all States.
If, according to this, one cannot combine as many lists as are desired with each other, the only combinations promising success are of those parties in which (corresponding to the piggy back picture) at least one partner has in its reference area (German Democratic Republic or Federal Republic of Germany) a sufficient potential of voters at its disposal and for this reason is in a position to make up for the weakness of the partner. Because of the different size of the two parts of Germany which are joined to form one electoral area, the only partners which come practically into consideration are those which can reckon on a significant share of votes in the Federal Republic. Of these few parties, at the point in time of the passing of the Statute on the Electoral Treaty three had already completed or announced their fusion with sister parties in the other territory. They are thereby excluded as partners under the effect of the competition clause as they will submit electoral list proposals in every State in the Federation.
Therefore from the start only a very small part of the parties to which the basic concept of § 53 II of the FEA applies has any real chance of finding a partner which could help to overcome the 5% clause. That violates the equality of chances of the parties.
(b) Independently of this, every combination of lists – whether with or without a competition clause – leads to a violation of the equality of chances because it evaluates the results of the elector’s votes unequally, without it being possible to adduce a pressing material reason for this. This arises from the following considerations:
(aa) It conforms to the system of proportional representation as provided for in the Federal
Elections Act that the election takes place in accordance with the State lists established by the parties (compare § 6 I in combination with § 34 II no. 2 of the FEA). On such a State list votes cast remain, in accordance with § 6 VI of the FEA – apart from the special rules further provided for there, but not to be discussed here – out of consideration on the distribution of seats if the party under consideration did not receive at least 5% of the votes validly cast in the electoral area. The differing weighting of the effective value of the election votes present in this affects all parties in the same way insofar as they cannot overcome the hurdle set up by this barrier clause – the appropriating of at least 5% of the votes cast in the electoral area.
This uniform effect of the barrier clause is broken again for those parties which make a declaration to the Federal Election Manager of a combination of their electoral list proposals. This declaration causes the percentage which is conclusive for the overcoming of the barrier clause to be the one which is calculated from the sum of the votes cast on the combined State lists. In this way, parties can be considered in the distribution of seats which would each for themselves have failed to attain the 5% limit in the electoral area and thereby would have remained without a mandate. If one of the parties taking part in a combination of lists overcomes the barrier clause by its own power, the second party participating in the combination of lists does not need to contribute anything more to it. Combinations of lists have developed for that reason not only as a consequence but also as an objective that they shape the effect of barrier clauses differently according to whether lists have been combined by a declaration to the Federal Elections Manager or not.
The differing effective value of electors’ votes cast falling to a combined State list as against electors’ votes cast falling to a non-combined State list is also reflected in a differing effective value of the single election vote: every voter who casts his vote for one of the combined lists can thereby contribute to the votes falling to the other list also being considered in the proportional adjustment. He thus assists the success of a list for which he has not cast his vote. A differing weighting of this kind of electors’ votes contradicts the principle of formal electoral law equality in so fundamental a manner that for that very reason no justifying ground falls to be considered for the accompanying inequality of the parties’ chances.
(bb) Over against this, such a violation of electoral equality does not attach to a fusion of lists as the electoral law of the German Democratic Republic recognises it (compare below IV 2). Whilst a combination of lists forms a mere numerical partnership for the overcoming of the barrier clause, the fusion of lists presupposes a solid form of co-operation. In such a fusion, several parties or political alliances establish a common list which brings the candidates of the different parties into a firm order of rank which is presented to the voters. The uniform effect of the barrier clause is thus not removed; such number of votes must be cast for a fusion of lists as are necessary for overcoming the barrier clause. The permitting of fusions of lists therefore does not make the effective value of the votes cast unequal beyond the extent which is covered by the purpose of a barrier clause. The permitting of a fusion of lists therefore merely comprises an exception from the principle of the Federal Elections Act that only single parties or political alliances can make an electoral list proposal. The combination of lists certainly has regard to this legal handicap, but on the other hand violates the constitutional principle applied in electoral law equality that the obstacle of a barrier clause is to apply in the same way for all electoral list proposals.
IV. It does not follow from what has been said so far that the legislator is constrained by virtue of the Constitution to abandon a barrier clause regime altogether in the first election for the whole of Germany.
1. (a) Certainly a general lowering of the barrier clause accompanied by maintenance of its applicability to the whole electoral area does not come into consideration. It is not of course to be left out of consideration here that the parties which had their area of activity until now in the German Democratic Republic alone see themselves as exposed to unequal starting conditions in comparison with the parties of the Federal Republic of Germany by the widening of the electoral area. They must, in order to preserve their chances of a certain share of the votes, strive to a certain degree from their existing position for a new vote’s potential which exceeds by more than three and a half times the number of persons entitled to vote in the German Democratic Republic i.e. in their electoral area up till now; on the other hand the comparable handicap for parties of the Federal Republic of Germany does not even constitute a third because of the much higher number of persons entitled to vote who are resident in their electoral area heretofore. These unequal starting conditions are, as already explained, the necessary consequence of the bringing together of the two hitherto independent electoral areas into a single electoral area, and have been created by a legal regime, namely the Statute of Approval to the Electoral Treaty.
It follows from this that the legislator by virtue of the Constitution is prevented from laying down the barrier clause regarded by him as necessary in such a way that it connects directly to the unequal initial situation under discussion and therefore takes it as a starting point for a regime which aims to weight the effective value of electors’ votes differently in the interests of creating a parliament capable of functioning. In this case an inequality which cannot be justified by the function of a barrier clause – because of the unequal initial situation described – is legally established. The parties in the German Democratic Republic would always have to win a far greater fraction of the voters in what had been their election area until now to overcome the barrier clause and therefore have a correspondingly greater success in the election than is necessary for the parties in the Federal Republic in reference to what had until now been their electoral area. So, for example, a reduction of a barrier clause related to the electoral area to perhaps 1.2% would have had the effect that the parties of the German Democratic Republic would have had to win no more than 5% of the electors’ votes in respect of the former German Democratic Republic in order to overcome this obstacle. They would therefore, in the result, not be worse affected than would be the case under a 5% clause relating to what had until now been the electoral area. On the other hand a share of about 1.6% of the votes in relation to their electoral area so far would suffice for the parties of the Federal Republic in order to participate in the distribution of seats. This inequality of relationship persists even for a reduction of the barrier clause below 1.2%; it attaches to any uniform barrier clause applying to the whole electoral area.
Such a barrier clause therefore violates the equality of chances of the parties to the disadvantage of the parties of the German Democratic Republic, however its limit may be established. It would no longer be neutral as against the political parties – in the face of the differing initial situation based on legal realities – but would signify an intervention in favour of the parties of the Federal Republic of Germany.
(b) On the other hand, it would be constitutionally unobjectionable to have a regionalised barrier clause, which on the one hand related to the area of the Federal Republic of Germany up to now, inclusive of Berlin (West) and on the other hand to the area of the German Democratic Republic inclusive of Berlin (East) and which is established at the same level for both reference areas. The inequality arising from the fact that, after the restoration of State unity, parties of the German Democratic Republic have to take their stand immediately in argument and competition in an electoral area which – measured by its population – is more than 300% larger than its area so far, whilst the enlargement for the parties of the Federal Republic of Germany only amounts to about 27% this would not, with the regionalised barrier clause, count as a starting point for a regime evaluating the effective value of the electors’ votes differently; it would in this way not be raised to the legal plane and therefore be legally permitted. Instead of this the parties here as well as there would – in relation to their unequal start – be granted chances which were in substance not unequal but exactly equal and accordingly the same support by the electors would also be requested. No objection could be raised against this to the effect that a barrier clause which was regional in this sense would in the formal method of consideration required by electoral law, lead to votes cast in the German Democratic Republic receiving greater weight in the framework of the proportional adjustment. A strict and formal equality corresponding with the democratic principle can only be restored in the face of the unequal starting point existing here by attaching formal equality to the actual reference area. The fact that – because of the dependence of the effective value of the vote on a determined share of the votes – in the one reference area more votes must be cast to attain this share of the votes than in the other does not lead to an infringement of equality if – as here – the reference areas are for their part formed according to the standpoint of equality.
2. The simple regionalisation of a barrier clause – without regard to its level – certainly does not yet satisfy the requirements of equality of chances. On its own it cannot sufficiently make up for the different starting conditions for this first election for the whole of Germany. They exist, for the parties and political alliances entering the election in the area of the German Democratic Republic, as has been shown by the fact that some of them are – to a greater or lesser degree – in a position in the election campaign to rely on resources which could build them up in the time of the party dictatorship of the SUP whilst others, which were suppressed and persecuted by this dictatorship, were only able to begin to get organised for the first time after its overthrow. This disadvantage, which was also argued in the oral hearing, exists for the last mentioned groupings as against all parties and political alliances entering the election from the territory of the Federal Republic of Germany. It needs to be compensated for. For this purpose, the beaten path of a fusion of lists offers itself in the German Democratic Republic as in the Statute of 20 February 1990 (SG I, 60) regarding the elections to the Peoples Chamber of the German Democratic Republic on 8 March 1990 and in the Statute of 22 July 1990 (SG I, 960) regarding the elections to the State Parliaments in the German Democratic Republic. If the legislator makes use of this possibility for the election for the 12th Federal German Parliament and if he accordingly allows fusions of lists in the territory of the German Democratic Republic under the statutory conditions existing for parties and political alliances in respect of elections to the State Parliaments insofar as they or their State associations have their domicile in the territory of the German Democratic Republic, allowance will be made for the discrimination to which not a few of the parties and political alliances which are now active in the German Democratic Republic were exposed during the period of the SUP dominance. They will therefore also be saved having to strive to adopt within the shortest period of time, with a view to the imminent Federal Parliament elections, other forms of organisation which electoral law presupposes or suggests. Such fusions of lists, formed from political organisations in the territory of the German Democratic Republic, can field candidates in the whole electoral area.
3. The objective which justifies the barrier clause remains protected even with a regionalisation formulated in this manner, combined with the possibility of forming fusions of lists by parties and political alliances active in what was until now the territory of the German Democratic Republic. In this way, small parties will certainly not be held back from representation in Parliament to the same extent as with a uniform barrier clause relating to the electoral area or even with a regionalised barrier clause, without the possibility of formation of fusion of lists. However, an effective barrier effect still arises from such a regime for the election for the 12th Federal Parliament – and only that is the subject of the judgment. The legislator would also be in a position to set the regionalised barrier clause at under 5% having regard to the special significance of the first free elections for the whole of Germany; that is just as much a question of his freedom in drafting as the decision about whether to have a barrier clause (compare FCCD 4, 31  = NLWJ 1954, 1601). He would certainly be prevented – on the grounds of electoral law equality – from fixing the regionalised barrier clause at different levels for the two reference areas.
D. The reimbursement of expenses in favour of the complainants in the constitutional complaint proceedings results from § 34a II of the FCCA.
The applicants in the public institutions action have contributed, by the preparation and carrying through of proceedings, to the elucidation of questions of fundamental importance which are of special constitutional law importance with regard to the first election for the whole of Germany. It therefore seems fair to the Senate to order, by way of exception, the reimbursement of expenses in accordance with § 34a III of the FCCA.
E. It follows from the judgment that the legislator has to make new electoral law regulations. Very rapid action is of course required here, because the legislator has to take care that between the point in time of the announcement of a new regime and the deadlines of the Federal Elections Act – to be altered if necessary – the necessary time remains for the parties and political alliances to adapt to the new statutory position.
The Federal Parliament, the Federal Council and the Federal Government have explained in the oral hearing that they are, on issue of a decision by the Senate establishing the unconstitutionality of the provisions which are the subject of the dispute willing and in a position to undertake the necessary alterations to the Federal Elections Act in time, having regard to the election day of 2 December 1990 determined by the Federal President. The Senate is proceeding on this basis. At the present point in time it therefore refrains from providing the legal basis itself for the carrying through of the elections by issue of an order in accordance with § 35 of the FCCA.
F. This decision is issued unanimously.
Translation by Raymond Youngs.