Headnotes

to the Order of the First Senate of 10 October 2017

– 1 BvR 2019/16 –

1. The general right of personality (Article 2(1) in conjunction with Article 1(1) of the Basic Law, Grundgesetz – GG) protects the gender identity. It also protects the gender identity of those who cannot be assigned either the gender “male” or “female” permanently.

2. Article 3(3) first sentence GG also protects persons who do not permanently identify as male or female against discrimination based on gender.

3. Both of these fundamental rights of persons who do not permanently identify as male or female are violated if the civil status law requires that the gender be registered but does not allow for a further positive entry other than male or female.

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 2019/16 –

IN THE NAME OF THE PEOPLE

In the proceedings on

the constitutional complaint

of K(…),

– authorised representatives:

1. Prof. Dr. Konstanze Plett, LL.M., Gustav-Heinemann-Straße 33, 28215 Bremen,

2. Priv.-Doz. Dr. Friederike Wapler, Seidelstraße 6, 30163 Hannover,

3. Rechtsanwältin Katrin Niedenthal, Marktstraße 2 – 4, 33602 Bielefeld –

1. directly against

a) the order of the Federal Court of Justice (Bundesgerichtshof) of 22 June 2016 – XII ZB 52/15 –,

b) the order of the Celle Higher Regional Court (Oberlandesgericht) of 21 January 2015 – 17 W 28/14 –,

c) the order of the Hanover Local Court (Amtsgericht) of 13 October 2014 – 85 III 105/14 –

2. indirectly against

§ 21(1) no. 3 of the Civil Status Act (Personenstandsgesetz – PStG) in the version of Article 1 of the Act to Reform Civil Status Law (Civil Status Law Reform Act, Personenstandsrechtsreformgesetz – PStRG) of 19 February 2007 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 122), § 22(3) of the Civil Status Act in the version of Article 1 no. 6 letter b of the Act to Amend Civil Status Law (Civil Status Law Amending Act, Personenstandsrechts- Änderungsgesetz – PStRÄndG) of 7 May 2013 (BGBl I p. 1122)

the Federal Constitutional Court – First Senate – with the participation of Justices:

Vice-President Kirchhof,

Eichberger,

Schluckebier,

Masing,

Paulus,

Baer,

Britz,

Ott

held on 10 October 2017:

1. § 21(1) no. 3 of the Civil Status Act (Personenstandsgesetz – PStG) in the version of Article 1 of the Act to Reform Civil Status Law (Civil Status Law Reform Act, Personenstandsrechtsreformgesetz – PStRG) of 19 February 2007 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 122) in conjunction with § 22(3) of the Civil Status Act in the version of Article 1 no. 6 letter b of the Act to Amend Civil Status Law (Civil Status Law Amending Act, Personenstandsrechts-Änderungsgesetz – PStRÄndG) of 7 May 2013 (BGBl I p. 1122) is incompatible with Article 2(1) in conjunction with Article 1(1) and Article 3(3) first sentence of the Basic Law (Grundgesetz – GG) insofar as it imposes an obligation on persons to state their gender and does not allow for a positive gender entry other than “female” or “male” for persons whose gender development deviates from female or male gender development and who permanently identify as neither male nor female.

The legislature must enact provisions that are compatible with the Constitution by 31 December 2018.

2. The orders of the Federal Court of Justice (Bundesgerichtshof) of 22 June 2016 – XII ZB 52/15 –, of the Celle Higher Regional Court (Oberlandesgericht) of 21 January 2015 – 17 W 28/14 – and of the Hanover Local Court (Amtsgericht) of 13 October 2014 – 85 III 105/14 – violate the complainant’s fundamental rights under Article 2(1) in conjunction with Article 1(1) and Article 3(3) first sentence of the Basic Law (Grundgesetz – GG). The orders of the Federal Court of Justice of 22 June 2016 – XII ZB 52/15 – and of the Celle Higher Regional Court of 21 January 2015 – 17 W 28/14 – are reversed. The matter is remanded to the Higher Regional Court. The proceedings must be suspended until new provisions have been enacted.

3. The Federal Republic of Germany must reimburse the complainant for necessary expenses.

Reasons:

A.

The constitutional complaint concerns the question whether the challenged decisions and the underlying provision of § 21(1) no. 3 in conjunction with § 22(3) of the Civil Status Act (Personenstandsgesetz – PStG) violate the complainant’s fundamental rights. At birth, the complainant was assigned the female gender and registered as a girl in the birth register. They have an atypical set of chromosomes (so-called Turner syndrome) and permanently identify with neither the female nor the male gender [translator’s note: singular they is used as a gender-neutral pronoun throughout this text]. […]

[Excerpt from the press release no. 95/2017 of 8 November 2017]

The complainant filed a request with the competent registry office for correcting the complainant’s birth registration by deleting the previous gender entry “female” and replacing it with “inter/diverse”, alternatively only with “diverse”. The registry office rejected the request and pointed out that under German civil status law a child needs to be assigned either the female or the male gender in the birth register, and emphasised that – if this is impossible – no gender entry is made (§ 21(1) no. 3, § 22(3) PStG). The request for correction filed thereupon with the Local Court (Amtsgericht) was rejected; the complaint filed against this decision was unsuccessful. […].

[End of Excerpt]

I.

1. a) […] The two provisions of the Civil Status Act that are indirectly challenged read as follows:

§ 21 Entry in the birth register

(1) The following information is documented in the birth register:

3. the child’s gender,

§ 22 Missing data

(3) If the child can be assigned neither the female nor the male gender, that person’s civil status shall be documented in the birth register without indicating the person’s gender.

b) § 22(3) PStG was introduced in the context of the reform of civil status law in 2013. Previously, since 1875 there had been no legal provision on persons whose gender is not clearly female or male. The General State Law for the Prussian States (Allgemeines Landrecht für die preußischen Staaten – ALR) of 1794 still provided for gender classification of hermaphrodites: “If hermaphrodites are born, their parents determine in which gender they are raised” (§ 19(I) first sentence ALR). “However, after having turned eighteen, these persons are free to choose which gender they want to belong to” (§ 20(I) first sentence ALR). This provision was omitted without replacement when registry offices and birth registers were introduced by the “Act on Documenting Civil Status and Marriage” (Gesetz über die Beurkundung des Personenstandes und die Eheschließung) of 6 February 1875 (Reich Law Gazette, Reichsgesetzblatt – RGBl p. 23). A regulatory gap resulted that ultimately persisted until civil status law was reformed in 2013 (see Wacke, in: Festschrift für Kurt Rebmann, 1989, pp. 861, 868 et seq.; Kolbe, Intersexualität, Zweigeschlechtlichkeit und Verfassungsrecht, 2010, p. 81; Lettrari, Aktuelle Aspekte der Rechtslage zur Intersexualität, 2015, p. 6).

c) The new provision of § 22(3) PStG was preceded by the concluding observations of the Committee on the Elimination of Discrimination against Women of 10 February 2009 in which the committee requested the Federal Republic of Germany “(…) to enter into dialogue with non-governmental organizations of intersexual and transsexual people in order to better understand their claims and to take effective action to protect their human rights” (CEDAW/C/DEU/CO/6 para. 62).

In 2010, the Federal Ministry of Education and Research and the Federal Ministry of Health instructed the German Ethics Council to prepare an opinion on the situation of intersexual persons in Germany in dialogue with persons concerned by intersexuality. In February 2012, the German Ethics Council submitted its opinion. Its summary is as follows (Bundestag document, Bundestagsdrucksache – BTDrucks 17/9088, p. 59 [translation by the German Ethics Council]):

The German Ethics Council takes the view that personal rights and the right to equality of treatment are unjustifiably infringed if persons whose physical constitution is such that they cannot be categorized as belonging to either the female or the male sex are compelled by law to be designated in one of these categories in the civil register.

1. Provision should be made for persons whose sex cannot be unambiguously determined to register not only as “female” or “male” but also as “other”.

Provision should also be made for individuals’ sex not to be registered until they have decided for themselves. A maximum age for affected people to decide should be laid down in law.

2. In addition to the existing possibility of amendment of one’s registered sex under Section 47(2) of the Act on Civil Status (PStG), provision should be made for affected individuals to request amendment of their registered sex should the original entry prove to be incorrect.

4. As a basis for future decisions on legislation, the purposes of compulsory registration as provided by current law should be evaluated. A review should be undertaken to determine whether the recording of a person’s sex in the civil register is in fact still necessary.

d) The Government’s Draft Act to Amend Civil Status Law (Civil Status Law Amending Act, Personenstandsrechts-Änderungsgesetz – PStRÄndG) of 25 May 2012 did not follow the recommendations of the German Ethics Council (Bundesrat document, Bundesratsdrucksache – BRDrucks 304/12; BTDrucks 17/10489, pp. 5 et seq.). In a statement of 6 July 2012, the Bundesrat called on the Federal Government to review the recommendations of the German Ethics Council on intersexuality, which the Bundesrat endorsed, in the context of the draft law (BTDrucks 17/10489, p. 56). In its reply, the Federal Government confirmed that it took the problems of those concerned and the opinion of the Ethics Council very seriously. However, according to the Federal Government, in this very advanced stage of the legislative procedure, the complex problems, particularly when taking into account medical aspects, cannot be solved in the short term. Comprehensive consultations with persons concerned and experts would have to be held before new provisions could be enacted, the Federal Government argued. In this respect, it would also be necessary to review which amendments to other laws would be required (BTDrucks 17/10489, p. 72; Bundestag Minutes of Plenary Proceedings, BT-Plenarprotokoll 17/219, p. 27222). The Bundestag Committee on Internal Affairs recommended adopting the current § 22(3) PStG (BTDrucks 17/12192, pp. 3, 11). In the second and third deliberations, the Committee’s proposal was adopted unanimously (cf. Bundestag Minutes of Plenary Proceedings 17/219, pp. 27217 et seq.). For the time being, further provisions should be subject to further discussions in the expert committees (cf. Bundestag Minutes of Plenary Proceedings 17/219, p. 27222).

e) In the coalition agreement for the 18th legislative term of 27 November 2013, the coalition parties committed to evaluating and extending the changes in civil status law for intersexual persons that had been enacted in the meantime. They also committed to “focussing on the special situation of transsexual and intersexual persons” (cf. coalition agreement among CDU, CSU and SPD, 18th legislative term, p. 105). For this purpose, an interministerial working group “Intersexuality/Transsexuality” was established, which was due to submit its report in the first half of 2017. This has not happened yet (cf. reply by the Federal Government to a minor interpellation of the parliamentary group BÜNDNIS 90/DIE GRÜNEN, BTDrucks 18/7310, p. 14).

2. […]

3. From a medical perspective, exclusively binary designations of gender are not maintained. In 2015, upon the recommendation of its scientific advisory board, the German Medical Association (Bundesärztekammer) submitted its opinion “Healthcare for children, youths and adults with differences/disorders of sex development (DSD)” (“Versorgung von Kindern, Jugendlichen und Erwachsenen mit Varianten/ Störungen der Geschlechtsentwicklung”). In its opinion, the association states that disorders of sex development are heterogeneous deviations in gender determination or differentiation. Deviations in gender development include congenital variations in genetic, hormonal, gonadal and genital dispositions of a person due to which a person’s gender does not unambiguously correspond to the biological categories of ‘male’ or ‘female’. Equating this with a malformation or disease is not appropriate, the association holds […]. The 2016 “Guidelines by the German Society of Urology (DGU) e.V., the German Society of Paediatric Surgery (DGKCH) e.V., the German Society of Paediatric Endocrinology and Diabetology (DGKED) e.V.”(Leitlinie der Deutschen Gesellschaft für Urologie (DGU) e.V., der Deutschen Gesellschaft für Kinderchirurgie (DGKCH) e.V., der Deutschen Gesellschaft für Kinderendokrinologie und -diabetologie (DGKED) e.V.) note that the traditional prescriptive idea of men and women needs to be revisited in order to ensure adequate psychological and medical care for and treatment of persons with deviating gender development, due to the biological context and the experiences of these persons. Deviating gender development is not a disease. It is not possible to think about its “curability”, the guidelines maintain. No medical or psychological intervention will change the ambiguous state per se. How people handle deviating gender development is in principle a socio-political issue and must be considered in the context of society as a whole […]. In addition, according to the opinion, medical and psychosocial science largely agree that gender cannot be determined, let alone created, by genetic, anatomical and chromosomal features alone, but is also dependent on social and psychological factors […].

4. […]

II.

[…]

III. 

With the constitutional complaint, the complainant claims a violation of their general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG), discrimination based on gender under Art. 3(3) first sentence GG and a violation of the principle of equal treatment under Art. 3(1) GG.

[…]

IV.

[…]

B.

The admissible constitutional complaint is well-founded. § 21(1) no. 3 in conjunction with § 22(3) PStG is unconstitutional insofar as § 21(1) no. 3 PStG requires a gender entry under civil status law, but § 22(3) PStG does not allow for a further positive gender entry for persons whose gender development deviates from female or male gender development and who permanently identify with neither the male nor the female gender. The decisions challenged in the constitutional complaint are based on these provisions. They violate the complainant’s general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) and the prohibition to disfavour a person because of gender (Art. 3(3) first sentence GG).

I.

§ 21(1) no. 3 in conjunction with § 22(3) PStG violates the general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) in its manifestation as protection of gender identity. The general right of personality also protects the gender identity of persons who can be assigned neither the male nor the female gender (1). Their fundamental right is interfered with because current civil status law requires that gender must be registered, but does not allow a gender entry other than female or male (2). This interference with fundamental rights is not justified (3).

1. The general right of personality protects the complainant’s gender identity.

a) Art. 2(1) GG grants every person the right to free development of their personality. In addition to the general freedom of action, this fundamental right includes the general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG). As a so-called “unspecified” fundamental freedom, the latter right complements the special (“specified”) freedoms, which also protect constitutive elements of the personality (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 54, 148 <153>). One of the purposes of the general right of personality is to guarantee the basic conditions enabling individuals to develop and protect their individuality in a self-determined way (cf. BVerfGE 35, 202 <220>; 79, 256 <268>; 90, 263 <270>; 117, 202 <225>). However, the general right of personality only protects those elements of development of one’s personality which – without already being covered by the specifically guaranteed freedoms under the Basic Law – are equal to these freedoms in terms of their constitutive importance for personality (cf. BVerfGE 79, 256 <268>; 99, 185 <193>; 120, 274 <303>; established case-law). Hence, it does not guarantee protection against anything that could in any way impair the self-determined development of one’s personality; in any case, no person is able to develop their individuality independent of external conditions and affiliations. However, where the self-determined development and protection of personality is specifically threatened, it is covered by the protection of the general right of personality, which serves to close legal gaps (BVerfGE 141, 186 <201 and 202 para. 32>).

b) Accordingly, the general right of personality also protects gender identity (cf. BVerfGE 115, 1 <14 et seq.>; 116, 243 <259 et seq.>; 121, 175 <190 et seq.>; 128, 109 <123 et seq.>), which is regularly a constitutive element of an individual’s personality. Under the given circumstances, the assignment of gender is of paramount importance for individual identity; it typically occupies a key position both in a person’s self-image and in the way this person is perceived by others. Gender identity plays an important role in everyday life: In part, gender determines entitlements and obligations provided for by law; furthermore, it often forms the basis for the identification of a person, and gender identity is also significant in everyday life irrespective of legal provisions. To a large extent it determines, for instance, how persons are addressed or what is expected of a person in terms of their appearance, upbringing or behaviour.

The gender identity of persons who can be assigned neither the male nor the female gender is protected as well. These persons might be able to develop their personality more freely if less significance was attributed to gender assignment in general. Yet under the given circumstances, gender assignment is a particularly relevant factor for how persons are perceived by others and for how they see their own personality. The complainant emphasises the practical importance of gender assignment, too, and argues that under these circumstances, gender identity is a constitutive element of their personality.

2. The provision of § 21(1) no. 3 in conjunction with § 22(3) PStG interferes with the general right of personality in its manifestation as protection of gender identity (a) and specifically threatens the development and protection of the complainant’s personality in their gender identity (b).

a) The provisions indirectly challenged interfere with the general right of personality in its manifestation as protection of gender identity. Civil status law requires that gender must be registered, but does not allow the complainant, whose gender development deviates from female or male gender development and who permanently identifies with neither the male nor the female gender a gender entry under civil status law that corresponds to their gender identity (on the existence of an interference see BVerfGE 49, 286 <298>; 60, 123 <132 et seq.>; 116, 243 <259 et seq.>; 121, 175 <190 et seq.>; 128, 109 <124>). Under civil status law, a person’s gender needs to be documented in the birth register pursuant to § 21(1) no. 3 PStG. The only positive options available for this are the gender “female” and the gender “male”; there is, however, no further option for a gender entry. This follows from § 22(3) PStG (“missing data”), according to which the gender entry in the birth register should be left blank if the child can be assigned neither the female nor the male gender. In this case, no positive entry can be made in the birth register. Accordingly, the complainant must tolerate an entry that does not correspond to their constitutionally protected gender identity.

Pursuant to § 22(3) PStG, the complainant has the option of deleting their female gender entry in the birth register. However, this does not eliminate the interference with fundamental rights: The complainant’s gender identity is not only impaired by their incorrect assignment to the female gender, but also by the currently stipulated choice of the legal alternative “missing data” (§ 22(3) PStG). The missing gender entry would not show that, while indeed not identifying as a man or a woman, the complainant does not identify as genderless either and sees themself as having a gender beyond male or female. The “missing data” option does not alter the exclusively binary pattern of gender identity; it gives the impression that legal recognition of another gender identity is ruled out and that the gender entry has simply not been clarified yet, that a solution has not been found yet or even that it has been forgotten. This does not amount to recognition of the complainant in their perceived gender. From the complainant’s view, the entry remains inaccurate, because just deleting a binary gender entry creates the impression of not having a gender (cf. Althoff/Schabram/ Follmar-Otto, loc. cit., pp. 24, 44; see also Vöneky/Wilms, Stellungnahme zur Situation von Menschen mit Intersexualität in Deutschland im Deutschen Ethikrat, 2011, p. 3; Sieberichs, FamRZ 2013, p. 1180 <1181>; Gössl, NZFam 2016, 1122 <1123>).

b) If civil status law requires a gender entry, but at the same time denies persons recognition of their gender identity under civil status law, it specifically threatens the self-determined development and protection of these persons’ personality:

aa) Under the given circumstances, the recognition of gender under civil status law has an identity-building and expressive effect. Civil status is not a marginal issue; rather, it is the “position of a person within the legal system”, as stated by the law (§ 1(1) first sentence PStG). With civil status, a person is measured according to the criteria provided for by law; it defines the central aspects of the legally relevant identity of a person. Thus denying the recognition of gender identity under civil status law in itself, i.e. irrespective of the consequences associated with the gender entry outside of civil status law, specifically threatens the self-determined development and protection of a person’s personality.

The entry under civil status law in itself only takes on specific significance for gender identity because civil status law requires that a gender must be stated in the first place. If it did not require a gender entry, it would not specifically threaten the development and protection of personality as the specific gender identity of a person would not be recorded under civil status law. […]

However, pursuant to § 21(1) no. 3 PStG, civil status currently also includes a person’s gender. Despite several reforms of civil status law, the legislature has maintained the registration of gender as an identifying feature under civil status law. As the legislature regards gender as so crucially important for describing a person and their legal status by way of civil status law, the recognition of a person’s specific gender identity under civil status law has an identity-building and expressive effect in itself, with the material and legal consequences of the civil status entry outside of civil status law being irrelevant in this respect (on the independent fundamental rights relevance of the register entry in the case of transsexuality see BVerfGE 49, 286 <297 and 298>; on naming see also BVerfGE 104, 373 <385>; 109, 256 <266>; 115, 1 <14>). If, under these circumstances, the gender identity of a person is not recognised under civil status law, it specifically threatens the self-determined development and protection of their personality.

bb) In particular, the requirement of a gender entry under civil status law in combination with the limited entry options make it difficult for those concerned to move about in public and be seen by others as the persons they are with regard to their gender. Yet the way a person is depicted and perceived in public and by others is significant for the free development of their personality and may result in specific threats [to fundamental rights] (cf. BVerfGE 99, 185 <193>; 114, 339 <346>; 119, 1 <24> […]). Civil status law requires a gender entry, but does not allow those concerned a gender entry in the birth register which is in line with their self-image. This contributes to the fact that their individual identity is not perceived and recognised in the same way and as naturally as that of female or male persons. The complainant plausibly argues that an individual often cannot just pass over their gender entry under civil status law when appearing in public.

3. The interference is not justified. The court decisions are based on an unconstitutional legal provision, because compelling persons to have a gender entry under civil status law while denying them a further positive entry other than “female” or “male” is not based on a legitimate aim for which the provision would be suitable, necessary and appropriate.

a) The Basic Law does not require that civil status be exclusively binary in terms of gender. It neither requires that gender be governed as part of civil status, nor is it opposed to the civil status recognition of a third gender identity beyond male and female. It is true that Art. 3(2) first sentence GG refers to “men” and “women”. However, a conclusive determination that the term “gender” only means men and women does not arise [from this wording]. It follows from the requirement of equal rights under Art. 3(2) GG that existing social disadvantages between men and women need to be eliminated. The purpose of this provision is mainly to eliminate gender-based discrimination against women (cf. BVerfGE 85, 191 <207>), but its aim is not to enshrine gender identity in civil status law or to rule out introducing another gender category in addition to “male” and “female. […]

b) The interests of third parties cannot justify that § 22(3) PStG does not offer a third option allowing for a positive entry in the birth register. The status of men and women under civil status law remains unaffected by a further entry option. The same also applies to persons with deviating gender development who still identify with either the male or female gender and who are and want to be registered accordingly. The mere possibility of entering a further gender does not oblige anyone to identify with this third gender. […] In a regulatory system that requires information on gender, the existing options for persons with deviating gender development to be registered as male or female or omit the gender entry altogether need to be preserved.

c) The fact that the introduction of a third positive entry may be associated with bureaucratic and financial costs during a transitional period does not justify denying the option of a further gender entry. At first, the formal and technical preconditions necessary for registering another gender of course need to be created. However, the additional effort associated with allowing for a standardised third gender designation would have to be accepted, given the interference with fundamental rights that arises from being ignored by law in one’s own gender identity. The general right of personality does not, however, grant a claim to the entry of random gender-related identity features as civil status information. Besides, the legislature is free to completely dispense with a gender entry in matters under civil status law.

d) Organisational interests of the state cannot justify the denial of a third standardised and positive entry option, either. Insofar as the legal identification of persons is de lege lata carried out on the basis of their gender and individual legal obligations and claims are attributed based on gender under current law, the registration of gender under civil status law contributes to an accurate and unambiguous identification and attribution (cf. BVerfGE 128, 109 <129 and 130>). However, this does not justify that under § 22(3) PStG no gender other than male or female can be entered in the civil register.

Allowing a positive entry for a third gender with a standardised third designation (for suggestions see, e.g., the opinion of the German Ethics Council, BTDrucks 17/9088, p. 59) does not result in any assignment difficulties that do not already exist under current law anyway. Uncertainties may occur where a provision outside of civil status law is linked to gender and presumes that a person is either female or male. In that case it would indeed be unclear how a person assigned to a third gender should be treated. However, the same issue exists already under current law if the gender entry is left blank pursuant to § 22(3) PStG. In this case, assigning a person to the male or female gender is not possible either: In this respect, material law neither regulates which gender-based provisions apply, nor has the legislature created specific provisions for persons without gender entry. If a further positive gender entry is allowed for, the questions to be clarified are thus the same as those that already arise when opting for no gender entry, which is possible de lege lata. In fact, the positive entry of a third gender could provide greater clarity given that it does not – unlike a gender entry that is permanently left blank – convey the wrong impression that the entry was left blank inadvertently.

The permanent nature of civil status is not affected by the option of a third gender entry, either, because just creating another entry option is not a statement on the requirements for changing civil status.

II.

Insofar as § 21(1) no. 3 in conjunction with § 22(3) PStG excludes a gender entry other than “male” and “female”, it also violates the ban on discrimination of Art. 3(3) first sentence GG. The provisions that are indirectly challenged disadvantage persons who are neither male nor female and who permanently identify with another gender (1). Article 3(3) first sentence GG protects not only men and women against discrimination based on gender, but also persons who do not permanently identify with these two categories (2). The disadvantaging is not justified (3).

1. § 21(1) no. 3 in conjunction with § 22(3) PStG disadvantages persons based on their gender who are neither male nor female and who permanently identify with another gender. Under Art. 3(3) first sentence GG, gender may generally not serve as a basis for unequal legal treatment. This holds true also in the case that a provision does not actually aim at an unequal treatment which Art. 3(3) GG prohibits, but primarily pursues other goals (BVerfGE 85, 191 <206>; established case-law). § 21(1) no. 3 in conjunction with § 22(3) PStG treats persons who are neither male nor female unequally and disadvantages them on the basis of their gender insofar as these persons cannot be registered in accordance with their gender, unlike men and women. § 22(3) PStG explicitly only allows for entries in the categories female or male. Under current civil status law, other persons must accept that they are either incorrectly assigned to one of the two above-mentioned genders or have an entry that creates the impression that they have no gender at all.

2. Article 3(3) first sentence GG protects not only men against discrimination based on their male gender and women against discrimination based on their female gender; it also protects persons who do not permanently identify with these two categories against discrimination based on their gender, which is neither exclusively male nor exclusively female […].

The purpose of Art. 3(3) first sentence GG is to protect persons from being disfavoured that belong to groups structurally prone to being discriminated against (cf. BVerfGE 88, 87 <96> […]).Persons who identify as neither female nor male are particularly vulnerable in a society primarily organised according to binary gender patterns. The wording of Art. 3(3) first sentence GG readily permits including them in its protection. Art. 3(3) first sentence GG generally refers to “gender” without stipulating any restrictions in that respect; [the reference to “gender”] may thus also mean a gender other than male or female.

There is no systematic contradiction to the requirement of equal rights under Art. 3(2) GG, which only refers to men and women […].The wording of Art. 3(3) GG, unlike Art. 3(2) GG, does not refer to men and women, but to gender in general. Above all, Art. 3(2) GG is of distinct relevance and independent of Art. 3(3) first sentence GG, which explains the narrower wording of Art. 3(2) GG. The regulatory content of Art. 3(2) GG exceeds the prohibition of discrimination under Art. 3(3) GG; it sets out the requirement of gender equality and applies it to social reality (BVerfGE 85, 191 <206 and 207>). Since 1994, Art. 3(2) second sentence GG emphasises the actual enforcement of equal rights between the genders.

The legislative history of the provision does not run counter to the assumption that Art. 3(3) first sentence GG includes the prohibition of discrimination based on a further gender, either. While the constitutional legislature (Verfassungsgeber) did not have persons of another gender in mind in 1949 when drawing up Art. 3(3) first sentence GG, this does not preclude interpreting the Constitution in such a way that these persons are included in the protection against discrimination, given today’s knowledge of other gender identities.

The decision of the constitution-amending legislature not to include the element of “sexual identity” in Art. 3(3) GG does not run counter to a broad interpretation of the element “gender” – irrespective of differences of meaning between gender identity and sexual identity. Most recently, an insertion of the element of sexual identity was declined not because of concerns linked to the content of the protection of sexual identity against discrimination. Rather, it was argued that this protection had already become a legal reality. Further it was claimed that, according to the case-law of the Federal Constitutional Court, the protection against discrimination based on sexual identity under Art. 3(1) GG by now corresponds to the protection under Art. 3(3) GG (cf. BTDrucks 17/4775, p. 5).

Moreover, the Court of Justice of the European Union has also defined protection against gender-based discrimination broadly by including discriminations that are linked to a person’s gender reassignment (fundamentally ECJ, Judgment of 30 April 1996, P v S and Cornwall County Council, C-13/94, ECR 1996, I-2143, para. 20).

3. The disadvantaging is not justified. As shown above, there is no valid reason for it (see I 3 above).

C.

[…]

D.

This decision was taken with 7:1 votes.

Kirchhof   Eichberger   Schluckebier

Masing   Paulus   Baer

Britz   Ott

Bundesverfassungsgericht, Beschluss des Ersten Senats vom 10. Oktober 2017 1 BvR 2019/16

Zitiervorschlag: BVerfG, Beschluss des Ersten Senats vom 10. Oktober 2017 1 BvR 2019/16 – Rn. (1 – 69), http://www.bverfg.de/e/ rs20171010_1bvr201916en.html

ECLI: ECLI:DE:BVerfG:2017:rs20171010.1bvr201916

Headnotes
to the Judgment of the Second Senate of 17 January 2017

– 2 BvB 1/13 –

1. The prohibition of a political party under Art. 21(2) of the Basic Law (Grundgesetz – GG) is the sharpest weapon, albeit a double-edged one, a democratic state under the rule of law has against an organised enemy. Its aim is to counter risks emanating from the existence of a political party with a fundamentally anti-constitutional tendency and from the typical ways in which it can exercise influence as an association.

2. The requirement that political parties be free from interference by the state (Gebot der Staatsfreiheit) and the principle of a fair trial are indispensable when it comes to carrying out proceedings for the prohibition of a political party.

a) The use of police informants and undercover investigators at the executive level of a political party during ongoing proceedings to prohibit the political party is incompatible with the requirement that there be no informants at the party’s executive level.

b) The same applies to the extent that an application for the prohibition of a political party is essentially supported by materials and facts that informants or undercover investigators have played a crucial role in authoring.

c) Under the principle of a fair trial, observation of a political party may not serve the objective of spying out the party’s procedural strategy; thus obtained information relating to the party’s procedural strategy may not be used during the proceedings in a way which is detrimental to the political party’s defence.

d) An obstacle resulting in discontinuation of proceedings is the ultima ratio of possible legal consequences of violations of the Constitution. In order to establish whether there is an irremediable procedural obstacle to proceedings for the prohibition of a political party, procedural requirements under the rule of law, on the one hand, need to be balanced against the preventive purpose of these proceedings, on the other hand.

3. The concept of the free democratic basic order within the meaning of Art. 21(2) GG only covers those central fundamental principles which are absolutely indispensable for the free constitutional state.

a) The free democratic basic order is rooted primarily in human dignity (Art. 1(1) GG). The guarantee of human dignity covers in particular the safeguarding of personal individuality, identity and integrity and elementary equality before the law.

b) Furthermore, the principle of democracy is a constitutive element of the free democratic basic order. The possibility of equal participation by all citizens in the process of forming the political will as well as accountability to the people for the exercise of state authority (Art. 20(1) and (2) GG) are indispensable for a democratic system.

c) Finally, the concept of the free democratic basic order is further determined by the principle that organs of the state be bound by the law (Art. 20(3) GG) – a principle which is rooted in the principle of the rule of law, and by independent courts’ oversight in that regard. At the same time, protection of the freedom of individuals requires that the use of physical force is reserved for the organs of the state which are bound by the law and subject to judicial oversight.

4. The concept of “abolishing” (beseitigen) the free democratic basic order describes the abolishment of at least one of the constituent elements of the free democratic basic order or its replacement with another constitutional order or another system of government. The criterion “undermining” can be assumed to be met once a political party, according to its political concept, noticeably threatens the free democratic basic order with sufficient intensity.

5. The fact that a political party is seeking to abolish or undermine the free democratic basic order must be clear from its aims or from the behaviour of its adherents.

a) The aims of a political party are the embodiment of what a party in-tends to achieve politically.

b) Adherents in this sense are all persons who support a party’s cause and profess their commitment to the party, even if they are not members of the political party.

c) Activities of a political party’s organs, specifically the party’s executive committee and its leading functionaries, can generally be attributed to the political party. Statements or actions by ordinary members can only be attributed to the political party if they are undertaken in a political context and the political party has approved or condoned them. In the case of adherents who are not members of the political party, influence or approval, in whatever form, of their behaviour by the political party is generally a necessary condition for attributing such behaviour to the party. There can be no blanket attribution of criminal offences and acts of violence if there is no specific link for such an attribution. No differing assessment may be inferred from the principle of indemnity.

6. In order to prohibit a political party, it is not sufficient that its aims are directed against the free democratic basic order. Instead, the party must “seek” to undermine or abolish the free democratic basic order.

a) The notion of “seeking” requires active behaviour in that respect. The prohibition of a political party does not constitute a prohibition of views or ideology. In order to prohibit a political party, it is necessary that a party’s actions amount to a fight against the free democratic basic order.

b) It requires systematic action of the political party that amounts to a qualified preparation for undermining or abolishing the free democratic basic order or aims at endangering the existence of the Federal Republic of Germany.

c) It is not necessary that this results in a specific risk to the goods protected under Art. 21(2) GG. Yet it requires specific and weighty indications which suggest that it is at least possible that the political party’s actions directed against the free democratic basic order of the Federal Republic of Germany or against its existence could be successful.

d) The use of force is in itself a weighty indication justifying the assumption that action against the goods protected under Art. 21(2) GG is successful. The same applies if a political party creates, in regionally restricted areas, an “atmosphere of fear“ which is likely to undermine in the long term the free and equal participation of all in the process of forming the political will.

7. Art. 21(2) GG leaves no room for assuming that there are other (unwritten) criteria.

a) A party’s similarity in nature to National Socialism alone does not justify prohibiting it. A party’s similarity in nature to National Socialism does, however, provide an indication that this political party is pursuing anti-constitutional aims.

b) A separate application of the principle of proportionality is not required.

8. The mentioned requirements which need to be met to establish that a political party is unconstitutional are fully compatible with the requirements for a prohibition of political parties that the European Court of Human Rights has derived from the European Convention on Human Rights (ECHR).

9. Measured against these standards, the application for prohibition is unfounded:

a) The respondent seeks, by reason of its aims and the behaviour of its adherents, to abolish the free democratic basic order. The respondent intends to replace the existing constitutional system with an authoritarian national state that adheres to the idea of an ethnically defined “people’s community” (Volksgemeinschaft). This political concept disregards the human dignity of all those who do not belong to its ethnically-defined Volksgemeinschaft and is thus incompatible with the principle of democracy as set out in the Basic Law.

b) The respondent advocates aims which are directed against the free democratic basic order and systematically acts towards achieving those aims in a qualified manner.

c) However, there are no specific and weighty indications suggesting even at least the possibility that these endeavours might be successful.

FEDERAL CONSTITUTIONAL COURT

– 2 BvB 1/13 –

Pronounced

on 17 January 2017

Fischböck

Amtsinspektorin 

as Registrar

of the Court Registry

IN THE NAME OF THE PEOPLE

In the proceedings
on the applications

to declare that

1. The National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands – NPD) including its sub-organisations the Young National Democrats (Junge Nationaldemokraten – JN), the National Women’s Ring (Ring Nationaler Frauen – RNF) and Municipal Political Union (Kommunalpolitische Vereinigung – KPV) is unconstitutional.
2. The National Democratic Party of Germany including its sub-organisations the Young National Democrats, the National Women’s Ring and Municipal Political Union is dissolved.
3. It is prohibited to create substitute organisations for the National Democratic Party of Germany including its sub-organisations the Young National Democrats, the National Women’s Ring and Municipal Political Union or to continue existing organisations as substitute organisations.
4. The assets of the National Democratic Party of Germany including its suborganisations the Young National Democrats, the National Women’s Ring and Municipal Political Union are confiscated for the benefit of the Federal Republic of Germany for charitable purposes.

Applicant:

Bundesrat,
represented by the President of the Bundesrat,
Leipziger Straße 3-4, 10117 Berlin,

– authorised representatives:

1. Prof. Dr. Christoph Möllers,
c/o Bundesrat, Leipziger Straße 3-4, 10117 Berlin,

2. Prof. Dr. Christian Waldhoff,
c/o Bundesrat, Leipziger Straße 3-4, 10117 Berlin,

3. Rechtsanwalt Prof. Dr. Alexander Ignor,
c/o Bundesrat, Leipziger Straße 3-4, 10117 Berlin –

Respondent:

National Democratic Party of Germany (NPD),
represented by its Federal Chairman Frank Franz,
Seelenbinderstraße 42, 12555 Berlin,

– authorised representatives:

1. Rechtsanwalt Peter Richter, LL.M.,
Birkenstraße 5, 66121 Saarbrücken,

2. Rechtsanwalt Michael Andrejewski,
Pasewalker Straße 36, 17389 Hansestadt Anklam –

the Federal Constitutional Court – Second Senate –

with the participation of Justices

President Voßkuhle,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

König,

Maidowski

held on the basis of the oral hearing of 1, 2 and 3 March 2016

Judgment

1. The application of the respondent to discontinue the proceedingsdue to the existence of irremediable procedural obstacles, or, alternatively, to suspend the proceedings until the Committee of Inquiry established by the German Bundestag on 20 March 2014 to investigate the NSA wiretapping affair has submitted its report, is rejected.
2. The applications of the applicant are rejected as unfounded.
3. The application of the respondent for reimbursement of its necessary expenses is rejected.

Reasons:

A.

The subject of the proceedings is the application by the Bundesrat to establish the unconstitutionality of the National Democratic Party of Germany (NPD) and to dissolve it pursuant to Art. 21(2) of the Basic Law (Grundgesetz – GG), Art. 93(1) no. 5 GG, § 13 no. 2 and §§ 43 et seq. of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

[Excerpt from press release no. 4/2017 of 17January 2017]

The National Democratic Party of Germany (NPD) advocates a concept aimed at abolishing the existing free democratic basic order. The NPD intends to replace the existing constitutional system with an authoritarian national state that adheres to the idea of an ethnically defined “people’s community” (Volksgemeinschaft). Its political concept disrespects human dignity and is incompatible with the principle of democracy. Furthermore, the NPD acts in a systematic manner and with sufficient intensity towards achieving its aims that are directed against the free democratic basic order. However, (currently) there is a lack of specific and weighty indications suggesting that this endeavour will be successful; for that reason, the Second Senate of the Federal Constitutional Court, in its judgment pronounced today, unanimously rejected as unfounded the Bundesrat’s admissible application to establish the unconstitutionality of the NPD and its sub-organisations (Art. 21(2) of the Basic Law, Grundgesetz – GG).

[End of excerpt]

I.

1. The respondent was founded on 28 November 1964 as a collective movement of national democratic forces. By as early as September 1965 its political party organisation covered almost the whole of the Federal Republic of Germany and, with election results of between 5.8% and 9.8% of the valid votes cast and a total of 61 members of parliament it gained seats in the federal state parliaments (Landtage) of Baden-Wuerttemberg, Bavaria, Bremen, Hesse, Lower Saxony, Rhineland-Palatinate and Schleswig-Holstein. In 1969, with a proportion of 4.3% of second votes, it failed to reach the five-percent hurdle in the Bundestag election. In the following 35 years, the respondent was unable to gain any seats in federal state parliament (Landtag) or Bundestag elections.

It was not until 2004 that it was again able to gain representation in a federal state parliament; in the Landtag election in Saxony, it gained 9.2% of the valid votes cast. In 2006 it was also able to do so in Mecklenburg-Western Pomerania with 7.3% of the valid votes cast. Despite losing votes in the subsequent Landtag elections in these two federal states, it managed to retain a presence in both federal state parliaments (with election results in Saxony in 2009 of 5.6% of the valid votes cast and of 6.0% in Mecklenburg-Western Pomerania in 2011). Due to the abolished electoral threshold for European Parliament elections, the respondent gained representation in the European Parliament in 2014 with its MEP Udo Voigt with 1.0% of the valid votes cast.

Currently, the respondent is not represented in any parliament at federal or Land level. It achieved a 1.3% share of second votes in the Bundestag election in 2013. With 4.9% of valid votes cast, it narrowly failed to retain its representation in the Landtag election in Saxony in 2014, and in the Landtag election in Mecklenburg-Western Pomerania in 2016 with a 3.0% share of second votes. In the most recent Landtag elections in the former West German federal states it achieved between 0.2% (Bremen) and 1.2% (Saarland), and between 1.9% (Saxony-Anhalt) and 4.9% (Saxony) in the former East German federal states.

Since the 2014 local government elections (cf. regarding the election results para. 904 et seq.), the respondent has, according to the uncontested information provided by the applicant, 367 seats at municipal level, most of which are in the former East German federal states.

2. The respondent’s membership numbers reached a peak of 28,000 in 1969 and sank steadily in subsequent years; by its own information it had merely 3,240 members in 1996. Following the election of Udo Voigt as the party’s chairman in 1996, its membership increased once more, reaching a (new) peak of 7,014 members in 2007, after which it declined again to 5,048 by 31 December 2013. At the party’s national convention (Bundesparteitag) in Weinheim in November 2015, its chairman Frank Franz declared, however, that there had been a growth in membership numbers again for the first time in years. He provided specific details of this in the oral hearing, citing a rate of increase of 8% over the previous year.

3. The respondent is organised into (sixteen) federal state associations as well as regional and district associations. Under § 6(1) first and second sentences of its party statute (in the latest version of 21/22 November 2015), the national convention is the “supreme organ of the NPD. It determines the setting of political objectives and convenes for an ordinary convention at least every other calendar year.” Under § 7(1) first sentence of the NPD statute, the party’s executive committee (Parteivorstand) is responsible for the “political and organisational leadership of the NPD”.

4. The respondent has its own youth organisation, the “Young National Democrats” (Junge Nationaldemokraten – JN), founded in 1969, which had roughly 350 members in 2012. The “National Democratic University Union” (Nationaldemokratischer Hochschulbund e.V. – NHB) was founded as a sub-organisation of the respondent as early as 1966, but no longer has a presence in university politics. In 2003, the “Municipal Political Union of the NPD” (Kommunalpolitische Vereinigung der NPD – KPV) was founded to represent the interests of municipal representatives nationally, and in 2006 the “National Women’s Ring” (Ring Nationaler Frauen – RNF) was founded, which sees itself as the “mouthpiece and point of contact for all national women whether party member or not” and had around 100 members in 2012. Under § 7(3) first sentence of the NPD party statute (in the version of 21/22 November 2015), the (federal) chairpersons of these associations are members of the NPD executive committee by virtue of their office “if they are members of the NPD”.

5. The financial report for 2013 shows membership subscriptions for 2013 of EUR 488,859.96 (2014: EUR 459,157.77) and just under EUR 804,000 (2014: EUR 866,000) in donations; together these make up approximately 43.4% (2014: 43.6%) of the party’s total income (cf. Bundestag document (Bundestagsdrucksache – BTDrucks) 18/4301, p. 109; BTDrucks 18/8475, p. 109).

6. The company Deutsche Stimme Verlags GmbH, founded by the respondent, publishes the party newspaper Deutsche Stimme (German Voice). According to the respondent, this had a circulation in mid-2012 of 25,000 copies. The company has its own video channel, DS-TV. Beyond this, the respondent is also responsible for various regional publications and makes intensive use of the Internet. It has a presence on Facebook, Twitter and, with video channels, on YouTube (cf. also paras. 852 and 853).

II.

Proceedings instigated in 2001 by applications initiated by the Federal overnment, the German Bundestag and the applicant in the present proceedings to establish the unconstitutionality of the respondent and to have it dissolved were discontinued by order of the Second Senate of 18 March 2003 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 107, 339).

III.

In a brief of 1 December 2013 the applicant applied, on the basis of its decision of 14 December 2012 (Bundesrat document, Bundesratsdrucksache BRDrucks 770/12), for the unconstitutionality of the respondent and its sub-organisations to be established and for its party organisation and that of its sub-organisations to be dissolved, for the prohibition of creating or continuing substitute organisations, and for its assets and those of its sub-organisations to be confiscated. It based this application on the first alternative in Art. 21(2) first sentence GG.

[…]

IV.

1. In a brief of 30 December 2013 the respondent filed an application for a preliminary injunction, requesting that the President of the German Bundestag be obliged to make payments to it by instalment from the state funds available for financing political parties, without offsetting this with a claim for payment established against it under § 31a(3) second sentence of the Political Parties Act (Gesetz über die politischen Parteien – PartG), alternatively to suspend the proceedings until the federal legislature replaces the arrangements for lawyers’ remuneration in respect of the party prohibition proceedings with arrangements in conformity with the Constitution.

The respondent claimed that this was necessary because it was not able to raise the funds to finance legal representation for the proceedings. This, it claimed, ruled out a proper legal defence in the party prohibition proceedings in accordance with the principle of the right to a fair trial.

2. By order of 28 January 2014 (BVerfGE 135, 234) the Senate rejected the application for a preliminary injunction and the alternative application for suspension of the proceedings. In its reasoning, it noted that legal recourse should be sought primarily before the administrative courts. It added that a proper defence could be secured by way of legal aid upon corresponding application or by analogous application of the provisions concerning necessary defence in criminal proceedings (§§ 140 et seq. of the Code of Criminal Procedure, Strafprozessordnung – StPO).

V.

In a brief of 25 March 2014 the respondent replied to the application brief and made application

that the application for prohibition made by the applicant be dismissed,

alternatively, that the proceedings to prohibit the political party be discontinued due to the existence of irremediable procedural obstacles,

as a further alternative that the proceedings be suspended until the Committee of Inquiry established by the German Bundestag on 20 March 2014 to investigate the NSA wiretapping affair has submitted its report.

[…]

VI.

In a brief of 14 May 2014 the applicant applied for a rejection of the respondent’s applications […].

[…]

VII.

[…]

VIII.

[…]

IX.

The respondent replied to this in its brief of 31 August 2015. […]

X.

[…].

XI.

1. By order of 2 December 2015 the Senate ordered in accordance with § 45 BVerfGG that an oral hearing should be conducted (BVerfGE 140, 316) and, by separate written document, drew attention to the fact that the ‘Overview and Statistics concerning Criminal Convictions of Members of Federal and Land Executive Committees of the NPD’ (Übersicht und Statistik über strafrechtliche Verurteilungen von Bundesund Landesvorstandsmitgliedern der NPD) which was submitted with the application brief in anonymised form could not be used as evidence. The applicant […] then submitted an overview in de-anonymised form and added to it an update of the opinion by the Institute of Contemporary History (Institut für Zeitgeschichte) on the question of the similarity in nature of the NPD to historical National Socialism and an expert opinion ‘Legal Issues for a Prohibition of the NPD in the light of the European Convention on Human Rights (ECHR)’ (Rechtsfragen eines Verbots der NPD am Maßstab der EMRK) by Professors Dr. Grabenwarter and Dr. Walter of 5 February 2016. It also submitted other evidentiary materials […].

[…]

XII.

In the oral hearing the respondent submitted a brief of 2 March 2016 in which it essentially replied to the application’s reasoning and the applicant’s brief of 27 August 2015.

1. The respondent claims that the application for prohibition is inadmissible not only because of the lack of due and proper procedural power of attorney but also because there is no basis in law for prohibiting a party.

a) The respondent claims that, in procedural terms, Art. 21(2) GG is exclusively aimed at a finding, i.e. a declarative statement. Furthermore, the respondent argues that the provision is not formulated like a prohibition provision, unlike, for example, the prohibition of associations under Art. 9(2) GG. […]

b) The respondent also claims that Art. 21(2) GG is not a suitable basis for the prohibition of a political party because the provision’s constituent element of “undermining” (“beeinträchtigen”) the free democratic basic order, on which the application is exclusively based, is not valid constitutional law, since it involves an editorial error by the legislature of the Basic Law (Grundgesetzgeber).

c) The respondent claims that the application is also inadmissible by virtue of the inadequate arrangements regarding entitlement to file an application for the prohibition of a political party. It claims that § 43 BVerfGG is unconstitutional because it restricts the group of those entitled to file such an application, since the provision does not take sufficient account of the equality of opportunity of the parties as constitutive elements of the constitutional order. According to the respondent, equality of opportunity of the parties is only fulfilled if a political party – which, like the respondent, is unable to “hide” behind one of the organs of state which are entitled to file an application – were also able to file an application for the establishment of the unconstitutionality of political parties. Accordingly, the respondent claims, the present proceedings must be suspended until this legal loophole has been closed.

2. In addition, the respondent claims that the application is unfounded.

a) The respondent argues that the current concept of a prohibition of political parties needs to be revised fundamentally.

[…]

XIII.

1. Immediately prior to the beginning of the oral hearing, the respondent filed several applications in its brief of 1 March 2016 expressing its apprehension of bias and complaining about the composition of the Senate. In its reasoning, it referred to statements made by individual members of the Senate before their appointment as Justices of the Federal Constitutional Court, to § 15(3) first sentence BVerfGG and to appeal proceedings which (allegedly) violated Art. 94(1) second sentence GG. On the same day, all applications were rejected as unfounded or were dismissed, and, upon the respective complaints, the Senate established its proper composition. […]

2. In the oral hearing of 1, 2 and 3 March 2016, the parties expanded on and added to their submissions. Pursuant to § 27a BVerfGG, Prof. Dr. Dierk Borstel, Prof. em. Dr. Eckhard Jesse, PD Dr. habil. Steffen Kailitz, Andrea Röpke and the respondent’s functionaries Jürgen Gansel and Udo Voigt and its former chairman Holger Apfel were heard. The president of the Landtag (state parliament) and the Minister for Internal Affairs and Sport of the Land of Mecklenburg-Western Pomerania and the State Minister of the Interior, for Building and for Transport of the Free State of Bavaria submitted statements

[…]

XIV.

1. In its brief of 22 March 2016 the applicant submitted the supporting documents it referred to that originated from the two expert opinions by the Institute of Contemporary History (Institut für Zeitgeschichte).

2. In its brief of 11 April 2016 the respondent submitted a statement regarding the oral hearing.

[…]

3. In its brief of 27 April 2016 the applicant replied to the briefs of the respondent of 2 March and 11 April 2016.

[…]

4. In its brief of 9 May 2016 the respondent stated in response to the supporting documents from the Institute of Contemporary History (Institut für Zeitgeschichte) submitted with the brief of 22 March that the evidence with regard to P. and H. cannot be attributed to it, since neither of these two persons were members of the respondent.

5. In its brief of 23 May 2016 the respondent replied to the applicant’s brief of 27 April 2016, asserting that it expressly acknowledged that the legislature was bound by the principle of human dignity. The respondent also claimed that the assertion by the applicant, that it denied the applicability of fundamental rights (those that apply to everyone – Jedermanngrundrechte) to foreigners, was erroneous. Nor, it claims, did it seek expatriation, but rather demanded restricting the excessive practice of naturalisation by changing the citizenship law ex nunc.

[…]

6. In its brief of 28 June 2016 the respondent complained that by participation of Justice Landau the Senate was not properly constituted. It claimed that his term of office had expired. The respondent claimed that the applicant was attempting, by deliberately not electing a successor, to enhance the prospects of success of its application for prohibition.

XV.

With regard to the 57 criminal convictions listed by the applicant in the application brief and the de-anonymised overview, the Senate was able to request the files of the relevant proceedings in 54 cases.

B.

The applications are admissible.

The proper composition of the Senate does not raise concerns (I.). Nor are there any irremediable procedural obstacles (II.). The application filed as an alternative by the respondent for the suspension of the proceedings until the Committee of Inquiry established by the German Bundestag on 20 March 2014 to investigate the NSA wiretapping affair has submitted its report must be rejected (III.). The other admissibility obstacles asserted by the respondent do not exist. There is neither a lack of an orderly power of attorney for the applicant’s authorised representative (IV.1.), nor does the application’s inadmissibility follow from an unconstitutional design of the entitlement to file applications in proceedings to prohibit political parties under § 43 BVerfGG (IV.2.). The view that Art. 21(2) GG does not constitute an appropriate legal basis for the prohibition of a political party does not preclude the proceedings’ admissibility either (IV.3.).

I.

[…]

II.

There is no scope for discontinuing the proceedings on the ground that there are irremediable procedural obstacles.

An obstacle resulting in discontinuation of proceedings is the ultima ratio of possible legal consequences of violations of the Constitution (a). In proceedings to prohibit a political party in accordance with Art. 21(2) GG this requires a violation of the Constitution of considerable weight (b). This may in particular be considered to exist if the requirement following from Art. 21(1) and (2) in conjunction with Art. 20(3) GG for the formation of the free and self-determined will of the political party and its self-portrayal before the Federal Constitutional Court is violated (c). The use of police informants and undercover investigators at the executive level of a political party during ongoing proceedings to prohibit the political party is incompatible with the rule-of-law requirement that there be no informants at the party’s executive level (Staatsfreiheit) (d). The same applies to the extent that an application for the prohibition of a political party is essentially supported by materials and facts that state sources have played a crucial role in authoring (e). In addition, the principle of a fair trial is accorded particular importance. Spying out the procedural strategy using intelligence service means runs counter to the resulting right of a party in the proceedings to be able to effectively influence the proceedings through its chosen strategy. (f). If these requirements are not satisfied, proceedings to prohibit the political party can generally not be continued. Exceptionally, this may not apply if, considering the threat posed by a political party to the free democratic basic order, the preventive purpose of the proceedings to prohibit the political party clearly outweighs the impairment of the rule-of-law requirements placed upon the proceedings to prohibit the political party (g).

[…]

b) Accordingly, an affirmation that an irremediable procedural obstacle exists requires a violation of the Constitution of considerable weight (cf. BVerfGE 107, 339 <365>). Conversely, if procedural deficiencies are less weighty or can be compensated in another way, this forbids discontinuation of the proceedings. Such deficiencies may be compensated through legal consequences which do not terminate the entire proceedings immediately, such as enhanced requirements being placed upon the assessment of evidence, or prohibitions to use the evidence (cf. BVerfGE 107, 339 <379> Senate majority with reference to BVerfGE 44, 353 <383>; 57, 250 <292 and 293>; 101, 106 <126>).

c) With respect to the question whether there is a weighty violation of the Constitution, especially the requirements of the rule of law deriving specifically from the nature of proceedings to prohibit a political party under Art. 21(1) and (2) in conjunction with Art. 20(3) GG must be complied with; the prohibition of a political party by the Federal Constitutional Court is the sharpest weapon, albeit a double-edged one, a democratic state under the rule of law has against an organised enemy. The highest degree of legal certainty, transparency, predictability and reliability is therefore required in proceedings to prohibit a political party (cf. BVerfGE 107, 339 <369> Senate minority). The political party in question is given its possibly final opportunity before the Federal Constitutional Court to counter the submission by the applicant or applicants which consider prohibition of the political party to be necessary with the image of a loyal, constitutional institution whose continued participation in the formation of the [political] will of the people and of the state is necessary and legitimate, precisely in the interest of a free democratic basic order. Freedom from interference by the state and self-determination are particularly significant in this situation (cf. BVerfGE 107, 339 <368> Senate minority). It must be guaranteed that the political party is able to present its position freely, without being monitored and in a self-determined way. In addition to the requirements of reliability and transparency, the requirement of strict freedom from interference by the state in the sense of unmonitored and self-determined formation of will and self-portrayal before the Federal Constitutional Court (cf. BVerfGE 107, 339 <369> Senate minority) is indispensable.

d) The activity of police informants and undercover investigators at the executive level of a political party during ongoing prohibition proceedings is incompatible with the requirement of strict freedom from interference by the state.

aa) If a political party which is classified as anti-constitutional is under observation by police informants or undercover investigators who are active in the federal executive committee or a Land executive committee of that political party or in the executive committees of its sub-organisations, the free and self-determined formation of its will and its self-portrayal is not guaranteed. Police informants necessarily operate as a means of exercising state influence. Their activities are characterised by conflicting loyalty obligations as party members on the one hand and as informants for state agencies – who will normally get paid for their activities – on the other hand, whose mission it may be to procure material for possible proceedings to prohibit the party (cf. BVerfGE 107, 339 <367> Senate minority). State presence at the executive level of the political party makes it unavoidable that the formation of the party’s will and its activities will be influenced (cf. BVerfGE 107, 339 <366> Senate minority). Generally it will not be possible to trace back whether and to what extent the individual person has in fact exerted influence; therefore this question is not decisive.

bb) State agencies must have deactivated their sources (police informants) in executive committees of a political party in good time before the Federal Constitutional Court receives the application to prohibit the party, at the latest when the intention to file such an application is publicly announced, and may not carry on any “aftercare” to circumvent the “deactivation”; any persons infiltrated into the party (undercover investigators) must be withdrawn (cf. BVerfGE 107, 339 <369>). In this connection, the obligation to “deactivate” police informants and withdraw undercover investigators is limited to the federal executive committee and the Land executive committees of the party and its sub-organisations since these are the very bodies which exert decisive influence on the formation of the party’s will and its self-portrayal during ongoing proceedings to prohibit the party. In contrast, party convention delegates, deputies or parliamentary group workers do not exert any comparable influence.

cc) […]

e) It is not compatible with the requirement of strict freedom from interference by the state either if an application to prohibit a political party is based on evidentiary materials, the source of which is, at least in part, the result of the action of police informants or undercover investigators (cf. BVerfGE 107, 339 <370> Senate minority; no use of material generated by informants – Quellenfreiheit).

aa) An examination as to whether the constituent elements of Art. 21(2) GG are met may only be based on manifestations of the political party’s aims and the behaviour of the party’s adherents if they can be attributed to the political party and if the formation of the will of the party is truly independent and free from influence. As a rule, this is not the case if situations are provoked or influenced by a state agency (cf. BVerfGE 107, 339 <382> Senate majority). […]

Conversely, statements made or behaviour displayed before or after the involvement of police informants are not necessarily, i.e. at least not under all circumstances, inadmissible as evidence. As a rule, attributing such behaviour to the political party in question does not raise concerns if there is a sufficient temporal distance to the involvement of the police informant to ensure that conflicts of loyalty have not influenced the behaviour.

bb) In an application to prohibit a political party, the respective applicant must demonstrate that the supporting evidence does not consist of material generated by informants (cf. BVerfGE 107, 339 <370> Senate minority). If, after exhausting all investigative possibilities within an ex officio examination, doubts remain as to whether the evidentiary material consists of material generated by informants, such material may not be attributed to the political party and may not be used as evidence.

cc) Such a prohibition of use as evidence, restricted to the infected evidentiary material, does not, however, always entail a procedural defect that cannot be compensated. If only part of the evidentiary material is affected, discontinuing the proceedings as a procedural legal consequence is out of the question if the remainder of factual basis permits continuation of the proceedings (cf. BVerfGE 107, 339 <379> Senate majority).

f) In proceedings to prohibit a political party, the principle of a fair trial takes on particular significance, not least in view of the fact that the legal consequence of the proceedings may be the dissolution of the political party in question. The principle of a fair trial guarantees protection against measures which impede free contact between the political party and its authorised representative and prevents the use of information about the political party’s procedural strategy which has been collected by intelligence service means.

[…]

aa) [The] right [to a fair trial] covers in particular the right of a party to the proceedings to be able to influence the proceedings within the scope of its chosen strategy in order to safeguard its rights (cf. BVerfGE 38, 105 <111>; 63, 380 <390 and 391>; 65, 171 <174 and 175>; 66, 313 <318>; 107, 339 <383 and 384> Senate majority), and must also be respected in proceedings to prohibit a political party (cf. BVerfGE 104, 42 <50>; 107, 339 <367, 383>). In the case of Art. 21(2) GG, the principle of a fair trial will be violated in particular if the strategy of the political party affected by the prohibition proceedings is deliberately spied out in such a way that a proper legal defence is rendered impossible (cf. BVerfGE 107, 339 <384> Senate majority) or made significantly more difficult. The same can apply if not publicly available information about the procedural strategy of the political party concerned is incidentally obtained through the use of intelligence means during ongoing prohibition proceedings and is used in a way which is detrimental to the effectiveness of the political party’s defence.

bb) The right to a fair trial does not, however, amount to a prohibition of observing a political party and its political representatives with intelligence service means while proceedings to prohibit the political party are ongoing (cf. already para. 409). The possibility of observation of anti-constitutional endeavours by intelligence agencies derives from the principle of “militant” (“streitbare”) or “fortified” (“wehrhafte”) democracy, which is established in constitutional law in particular in Art. 9(2), Art. 18 and Art. 21(2) GG and is intended to guarantee that enemies of the Constitution cannot invoke the freedoms guaranteed by the Basic Law and their protection to endanger, undermine or destroy the constitutional order or the existence of the state (cf. BVerfGE 2, 1 <11 et seq.>; 5, 85 <138 and 139>; 28, 36 <48>; 30, 1 <18 and 19>; 40, 287 <292>; 134, 141 <179 et seq. para. 109-117>). During ongoing prohibition proceedings, observation – including observation realised with the help of secret collection of information pursuant to § 8(2) of the Federal Act on the Protection of the Constitution (Bundesverfassungsschutzgesetz – BVerfSchG) is thus generally admissible as a matter of principle if it is supported on a legal basis, is carried out for the protection of the free democratic basic order and takes account of the principle of proportionality (cf. BVerfGE 107, 339 <365> Senate minority; 134, 141 <179 et seq. para. 109-117>; Decisions of the Federal Administrative Court , Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 110, 126 <130 et seq.>) and does not disregard the requirements of the rule of law for freedom from interference by the state and for a fair trial.

[…]

dd) It is a matter for the applicant in proceedings for the prohibition of a political party to demonstrate what precautions it has taken to prevent that the procedural strategy of the respondent is spied out or that information obtained incidentally are used against it. If it has done this in a credible and transparent way, the abstract danger of being spied out is not sufficient to permit the assumption that the right to a fair trial as is guaranteed by the rule of law has been violated (cf. BVerfGE 107, 339 <384> Senate majority).

g) Violation of the requirement of strict freedom from interference by the state and of the right to a fair trial amounts to a serious interference with rule of law requirements under Art. 21(2) in conjunction with Art. 20(3) GG which proceedings for the prohibition of a political party need to meet. Resorting to informants or undercover investigators at the executive levels of a political party during ongoing prohibition proceedings constitutes a significant violation of the Constitution; in addition, basing an application for the prohibition of a political party to a significant extent on evidentiary material infected by state sources or exploiting knowledge of the respondent’s procedural strategy acquired using intelligence service means constitute significant violations of the Constitution, too. The violations’ weight is further increased by virtue of the fact not only that proceedings for the prohibition of a political party can have the legal consequence that the political party in question is dissolved but also that the assessment of its unconstitutionality expressed by the very fact that a prohibition is applied for represents a serious interference with the right to equal participation in political competition deriving from the freedom of political parties (Parteienfreiheit).

In answering the question whether this results in the proceedings being ended without a decision in the matter, however, the decision of the Basic Law in favour of a “militant democracy” should be considered, as well as the freedom of political parties guaranteed in Art. 21(1) GG. The trio of the provisions Art. 9(2), Art. 18 and Art. 21(2) GG belongs to the core elements of preventive protection of the Constitution (cf. BVerfGE 107, 339 <386> Senate majority). The fundamental concern of a Constitution not to be undermined by abuse of those very freedoms it guarantees would be missed if it lacked effective instruments to protect the free democratic basic order (cf. BVerfGE 107, 339 <387> Senate majority). Therefore, in deciding whether irremediable procedural obstacles exist in proceedings for the prohibition of a political party, the result of which would be the discontinuation of the proceedings, both the preventive purpose of proceedings for the prohibition of a political party and the rule of law requirements which such proceedings need to meet must be considered and weighed up against each other.

Thus it cannot be assumed that a violation of the rule of law requirements which the performance of proceedings for the prohibition of a political party need to meet automatically precludes continuation of the proceedings (cf. BVerfGE 107, 339 <371> Senate minority). To be sure, a violation of the rule of law requirements of strict freedom from interference by the state and of a fair trial will normally constitute an irremediable deficiency in terms of the rule of law; generally, this will result in a procedural obstacle and in discontinuation of the proceedings. However, this is not the case if the interference with procedural requirements under the rule of law faces a serious impairment of the preventive purpose of the prohibition proceedings. Even if there is a significant violation of the Constitution, discontinuation of the proceedings is subject to the condition that its continuation would be unacceptable in terms of the rule of law, even when balancing it against the state’s interest in effective protection against the dangers emanating from a political party, the actions of which may be unconstitutional (cf. BVerfGE 107, 339 <365> Senate minority; <380> Senate majority). Continuation of the proceedings for the prohibition of the political party may be compatible with rule of law principles if the proceedings’ preventive purpose clearly prevails (cf. BVerfGE 107, 339 <385> Senate minority). In order to establish whether there is a procedural obstacle to proceedings for the prohibition of a political party, procedural requirements under the rule of law, on the one hand, thus need to be balanced against the preventive purpose of these proceedings, on the other hand.

2. By these standards there is no procedural obstacle in the present proceedings which would lead to a discontinuation of the proceedings for the prohibition of the political party. It can be assumed from the applicant’s attestations and provided evidence that there have not been any police informants or undercover investigators at the executive levels of the respondent since at least 6 December 2012 (a), that the significant parts of the relevant evidentiary material are not based on statements of and behaviour by party members who have contacts with state agencies (b), and that account has been taken of the special status of the respondent’s authorised representative no. 1 and that knowledge of the respondent’s procedural strategy has not been obtained using intelligence service means (c); for that reason it is already clear that a significant violation of the fundamental principles of the rule of law is lacking (first stage of examination). Therefore there is no need to balance such a violation against the preventive purpose of the prohibition proceedings (second stage of examination).

a) […] The applicant has demonstrated credibly – and without the respondent being able to shatter this in a manner which may require clarification – that all police informants at the respondent’s executive levels have been “deactivated” in good time (aa) and not given after-care for the purpose of gaining information (bb), and that no undercover investigators have been or are being deployed against the respondent (cc).

aa) The applicant has provided sufficient evidence by means of the attestations and other documents which it has submitted that all police informants at the respondent’s executive levels have been “deactivated” (1). The respondent’s submission does not raise any serious doubts in that regard (2); thus it was not necessary to take further evidence (3).

[…]

In terms of evidentiary law, the attestations are written statements made by witnesses. With regard to their value as evidence, it should be taken into consideration that these statements were made by the persons providing the attestations in their respective official capacities. Even if it were to be implied that the Ministers and Senators of the Interior have an interest in the outcome of the proceedings, they are, after all, not applicants themselves. This is all the more so in the case of the other persons providing attestations, so that the significance of the attestations goes further than the quality of a simple party submission. Moreover, providing false attestations, with the associated risk of being responsible for the possibility of the prohibition proceedings’ failure, would involve considerable personal and political risk for the persons providing such attestations. This suggests that the attestations which have been submitted were not provided recklessly. Unless their credibility is shattered by the respondent’s evidence-based, or circumstantial evidence-based submission of facts or in any other way, they generally constitute suitable evidence of the fact that police informants at the respondent’s executive levels have been “deactivated”.

(b) The applicant has furthermore demonstrated and provided evidence of the completion of the “deactivation” of the police informants at the respondent’s executive levels in response to the request to do so in para. III.1 of the guidance order (Hinweisbeschluss) of 19 March 2015 (cf. para. 131). In doing so it has reinforced the credibility of the submitted attestations.

[…]

(2) Conversely, the respondent has not submitted arguments suggesting that there are circumstances, which can cast serious doubt as to the correctness of the statements and evidence of the “deactivation” of the police informants at the respondent’s executive levels; such circumstances are not in any way discernible either.

[…]

(ee) Insofar as the respondent objects to using the submitted documents as evidence because some parts thereof are blackened, the Senate cannot concur. The respondent fails to take into consideration the fact that these redactions have been comprehensibly justified with reference to the state’s duty of care towards the lives and physical well-being of the persons concerned and the need to uphold the effectiveness of the security agencies. There is no reason to assume that the redactions go beyond what is necessary. They do not significantly reduce the comprehensibility of the submitted statements.

[…]

c) The principle of a fair trial has not been violated since it is established to the satisfaction of the Senate that the procedural strategy of the respondent has not been spied out using intelligence service means, that account has been taken of the special status of authorised representative no. 1, and that no knowledge about the procedural strategy obtained incidentally through the use intelligence service means has been used in the ongoing prohibition proceedings to the detriment of the respondent.

[…]

(3) The submitted documents are sufficient to convince the Senate that [the applicant] refrained from receiving intelligence on the respondent’s procedural strategy. The applicant has fully documented the relevant instructions by the Federation and the Laender. It has reported on implemented “G 10 measures” [translator’s note: measures which have been implemented under the Law concerning the Restriction of the Privacy of Correspondence, Posts and Telecommunications, or ‘Article 10 Law’ (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses, Artikel 10-Gesetz)] and demonstrated that no information regarding the prohibition proceedings was obtained in this regard either, or that the use of such information has been stopped. No circumstances can be discerned which could raise serious doubt as to the correctness of this submission.

[…]

(c) Finally, the submission by the respondent in the oral hearing that two executive committee members of the respondent’s regional association of the Land of North Rhine-Westphalia were the subjects of police surveillance and data gathering from 10 July 2015 to 9 August 2015 cannot undermine the correctness of the applicant’s submission that the respondent’s procedural strategy was not spied out.

According to the credible information, upon which the respondent has not cast any doubt, provided by the head of the Land criminal division, Mr S., the two members of the regional association of the Land were not the subjects of surveillance but rather a so-called Gefährder [translator’s note: a person considered to pose a threat] from the extreme right-wing scene who was about to be released from custody and whose residency was supposed to be ascertained. The two members of the regional association of the Land were, according to the information provided, indirectly affected by this measure merely because they had picked up the person concerned upon his release from custody. Once that person had taken up his residence the measure was discontinued immediately. The aim of the measure was therefore in no way, as the respondent had speculated, to spy on a further member of the regional association of the Land. Furthermore, the measure was not aimed at obtaining information about the respondent‘s procedural strategy and the measure did not produce any such intelligence either.

[…]

III.

[…]

IV.

[…]

C.

The standard for establishing the unconstitutionality of a political party in accordance with Art. 21(2) GG must take into account both the continuing claim to validity of the norm and its exceptional nature (I.). If these two factors are complied with by a determination of the constituent elements that need to be met to prohibit a political party (II.) such a determination is, pursuant to the case law of the European Court of Human Rights (ECtHR), compatible with the stipulations of the European Convention on Human Rights (ECHR) (III.). The law of the European Union is not decisive in respect of the conditions under which a political party […] may be prohibited (IV.).

I.

[…]

1. a) Art. 21 GG accorded political parties their own constitutional status for the first time. Unlike the Weimar Constitution (Weimarer Reichsverfassung – WRV), which refrained from giving political parties a constitutional classification, the Basic Law accords them a special status, which is elevated in comparison to that of associations within the meaning of Art. 9(1) GG (cf. BVerfGE 107, 339 <358>). They are elevated by Art. 21 GG to the rank of constitutional institutions (cf. BVerfGE 1, 208 <225>; 2, 1 <73>; 20, 56 <100>; 73, 40 <85>; 107, 339 <358>) and acknowledged as being necessary “factors of constitutional life” (BVerfGE 1, 208 <227>). The prerequisite for their carrying-out of the constitutional task assigned to them of participating in the formation of the political will of the people is their freedom of foundation and activities which is guaranteed in Art. 21(1) GG.

b) […]

c) Establishing the framework for prohibiting political parties in Art. 21(2) GG was an expression of the aspiration of the constitutional legislature (Verfassungsgeber) to create the structural conditions for preventing a repetition of the catastrophe of National Socialism and of developments in the system of political parties such as occurred in the final phase of the Weimar Republic (cf. BVerfGE 107, 339 <362>). The aim of Art. 21(2) GG is to counter risks emanating from the existence of a political party with a fundamentally anti-constitutional tendency and from the typical ways in which it can exercise influence as an association (cf. BVerfGE 25, 44 <56>). In accordance with the claim “No absolute freedom for the enemies of freedom” (cf. BVerfGE 5, 85 <138>), such a political party should not be given the opportunity to abuse the freedom of political parties enjoyed under Art. 21(1) GG to fight against the free democratic basic order.

2. This concept of protecting freedom by restricting freedom does not contradict the Constitution’s fundamental decision in Art. 20(2) GG in favour of a process that is free from interference by the state of politically free and in favour of an open formation of opinion and will by the people in relation to the organs of the state (cf. BVerfGE 20, 56 <100>; 107, 339 <361>). In order to permanently establish a free democratic order, it is not the intention of the Basic Law to guarantee also the freedom to abolish the conditions for freedom and democracy and to abuse the guaranteed freedom for the purpose of abolishing that very order. Therefore, the aim of Art. 21(2) GG is to protect those underlying fundamental values which are indispensable for the peaceful and democratic co-existence of the citizens.

Against this background, the Basic Law selects, from the pluralism of aims and values which have taken shape in the political parties, certain fundamental principles for structuring the state. These principles, once democratically approved, should be acknowledged as absolute values and therefore resolutely defended against any attack. The aim is to create a synthesis between the principle of tolerance towards all political opinions and the commitment to certain inviolable fundamental values of the state order. Accordingly, Art. 21(2) GG expresses the deliberate constitutional will for the solution of a problem of boundaries in the free democratic state order, enshrining the experience of a constitutional legislature (Verfassungsgeber) who in a certain historical situation no longer believed in being able to realise, in a pure form, the principle of the neutrality of the state vis-à-vis the political parties, and a commitment to a – in this sense – militant democracy (cf. with regard to the whole matter BVerfGE 5, 85 <139>).

The respondent is therefore wrong to object that the prohibition of a political party which would result in the elimination of an entire political tendency violates the democratic principle of the sovereignty of the people (“The people are always right”). […]

3. The possibility provided by Art. 146 GG for the creation of a genuinely new Constitution does not run counter to the applicability of Art. 21(2) GG. Irrespective of whether Art. 146 GG is applicable merely in the case of a complete constitutional novation, having regard to the principles of Art. 79(3) GG, or also covers a complete rewriting of the Basic Law […], the Basic Law remains fully in force until a new Constitution freely adopted by the German people enters into force (cf. BVerfGE 5, 85 <128>). Even if Art. 146 GG were to give the constitutional legislature (Verfassungsgeber) the opportunity to create a completely new Constitution, this would not legitimise actions by any political party actively aimed at undermining or abolishing the free democratic basic order while the Basic law is applicable. […]

4. Nor can inapplicability of Art. 21(2) GG be substantiated by the assertion that the provision is merely of a transitional nature in that it aims for structuring the transition from National Socialism to the free democratic order and that the norm has now lost its claim to validity […].

The provision could at best be deemed to have lost its claim to validity if it had been designed as a mere transitional arrangement. There is nothing in the wording of the provision to suggest that this is the case. Moreover, the protective purpose of Art. 21(2) GG, which has the aim of averting threats to the free democratic basic order arising from strengthened anti-democratic political parties by prohibiting them, is not restricted to the phase during which the free democracy under the Basic Law is constituted. […]

5. Finally, the respondent’s opinion is incorrect […] that prohibition of a political party [can] only be regarded as legitimate if the political party is involved in violent subversive movements.

[…] For a political party to be prohibited it is sufficient that the political party in question “seeks” (darauf ausgehen) to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany. Accordingly, Art. 21(2) GG is not a provision that aims at averting specific threats. Rather, it aims to prevent, by way of preventive protection of the Constitution (cf. BVerfGE 5, 85 <142>; 9, 162 <165>; 107, 339 <386>; regarding Art. 9(2) GG: BVerfGE 80, 244 <253> […]), specific threats to the free democratic basic order from arising in the first place. Thus, a re-definition of the concept of the prohibition of political parties in Art. 21(2) GG following the Constitution’s emergency regulations can be ruled out.

[…]

6. In interpreting Art. 21(2) GG, due regard must be given to the fundamental constitutional decisions in favour of openness of the process of formation of political will, of freedom of expression (Art. 5(1) GG) and freedom of political parties from interference by the state (Art. 21(1) GG), as well as of the provision’s exceptional nature as a consequence of the above.

a) The Basic Law proceeds from the assumption that the only way to forming the will of the state is to have a constant intellectual exchange between social forces and interests and between political ideas and thus also between the political parties propagating them (cf. BVerfGE 5, 85 <135>). It relies on the power of this engagement as the most effective weapon against the spread of totalitarian and inhuman ideologies (cf. BVerfGE 124, 300 <320>). In Art. 21(1) GG it assigns a special role to the political parties as necessary instruments for the formation of the political will of the people (cf. BVerfGE 107, 339 <361>). Accordingly, prohibition of a political party is a serious interference with the freedom of formation of the political will and the freedom of political parties under Art. 21(1) GG, which can only be justified under particular conditions. Art. 21(2) GG, as an “exceptional norm which curtails democracy”, must be applied with restraint (cf. Meier, loc. cit., p. 263). For this reason, a restrictive interpretation of the provision’s individual constituent elements is required which takes account of the rule-and-exception relationship between the freedom of political parties enshrined in Art. 21(1) GG and the prohibition of political parties under Art. 21(2) GG. There is at the same time no scope for assuming the existence of unwritten constituent elements which would extend the provision’s scope of application […].

b) The restrictive interpretation of the constituent elements under Art. 21(2) GG furthermore takes account of the fact that the peremptory legal consequence of the prohibition of a political party that follows from the establishment of its unconstitutionality is its dissolution.

Any administrative intervention against the existence of a political party is ruled out until the Federal Constitutional Court has established its unconstitutionality, however hostile its behaviour may be towards the free democratic basic order (cf. BVerfGE 40, 287 <291>; 47, 198 <228>; 107, 339 <362>). […] In its present form, the Basic Law tolerates the threat linked to activities of a political party for the sake of political freedom, until its unconstitutionality has been established (cf. BVerfGE 12, 296 <306>; 47, 198 <228>; 107, 339 <362>).

If, on the other hand, the Federal Constitutional Court’s review results in the finding that the constituent elements of Art. 21(2) GG are met, the unconstitutionality of the political party must be established and it must be dissolved. The respondent is wrong in assuming that Art. 21(2) GG merely provides the possibility for establishing the unconstitutionality of a political party but leaves it to the “responsible citizen” to “execute” such a finding of constitutional law by not voting for a political party which has been found to be unconstitutional; therefore, in the respondent’s opinion, the dissolution of a political party as envisaged in § 46(3) first sentence BVerfGG oversteps the boundary of what is constitutionally permissible. This opinion is not compatible with the concept of the provision of Art. 21GG. […]

II.

The application for prohibition by the applicant concerns the legally protected good of the “free democratic basic order” (1.), which a political party must “seek” (4.) to “undermine or abolish” (2.) “by reason of its aims or the behaviour of its adherents” (3.). There are no other unwritten constituent elements for the prohibition of a political party (5.).

1. The term “free democratic basic order” has been fleshed out in the case-law of the Federal Constitutional Court (a). Its regulatory content cannot be defined by means of general recourse to Art. 79(3) GG but is limited to those principles which are absolutely indispensable for the free democratic constitutional state (b). In that respect, the principle of human dignity (Art. 1(1) GG), which is specified in greater detail by the principles of democracy (d) and the rule of law (e), is at the forefront (c).

a) aa) […]

b) aa) The concept of the free democratic basic order within the meaning of Art. 21(2) GG requires concentration on a few central fundamental principles which are absolutely indispensable for the free constitutional state. This limited approach seems to be required not least because of the exceptional nature of the prohibition of political parties. The fundamental decision by the Constitution in favour of an open process of formation of political will means that it must also be possible to critically challenge individual elements of the Constitution without causing the prohibition of the political party. Exclusion from the process of forming the political will can only be considered when what is being questioned and rejected is what is absolutely indispensable for guaranteeing free democratic co-existence and is thus not negotiable.

bb) Such a focus on the central fundamental principles which are indispensable for democracy cannot be achieved by having recourse to the inalterable core of the Constitution as defined in Art. 79(3) GG. Unlike Art. 108 of the Draft Constitution drawn up by the Herrenchiemsee Convention (Verfassungsentwurf des Verfassungskonvent auf Herrenchiemsee – HerrenChE), the version of Art. 79(3) GG as adopted by the Parliamentary Council (Parlamentarischer Rat) does not only prohibit amendments of the Basic Law which would result in abolishing the free and democratic basic order […].

The regulatory content of Art. 79(3) GG goes beyond the minimum content of what is indispensable for a free democratic constitutional state. In particular, the free democratic basic order does not include the principles of the republic and of federalism as covered by Art. 79(3) GG, since constitutional monarchies and centralised states can also be in accordance with the guiding principle of a free democracy […].

c) The free democratic basic order is rooted primarily in human dignity (Art. 1(1) GG). This is recognised in the case-law of the Federal Constitutional Court as the highest value of the Basic Law (cf. BVerfGE 5, 85 <204>; 12, 45 <53>; 27, 1 <6>; 35, 202 <225>; 45, 187 <227>; 87, 209 <228>; 96, 375 <399>). Human dignity is not subject to disposition. The state must respect and protect it in all its forms (cf. BVerfGE 45, 187 <227>). This deprives the state and its legal system of any absoluteness and any “natural” precedence.

aa) The guarantee of human dignity covers in particular the safeguarding of personal individuality, identity and integrity and elementary equality before the law […]. This understanding is based on a conception of human beings as persons who can make free and self-determined decisions and shape their destiny independently (cf. BVerfGE 45, 187 <227>; 49, 286 <298>). The subjective quality of human beings is linked to an entitlement to social worthiness and to respect which forbids degrading people to “mere objects” of state action (cf. BVerfGE 122, 248 <271>).

Even though it may be so that the effectiveness of this “object formula” is limited […], it is at any rate appropriate for identifying violations of human dignity wherever the quality of the human being as a subject and the resulting entitlement to respect is fundamentally called into question […]. This is especially the case if a perception supports a genuine and thus absolute precedence of a collective over the individual human being. Human dignity only remains inviolable if the individual is treated as fundamentally free, if albeit bound into society, and not the other way round as fundamentally unfree and subjugated to a superior instance. The absolute subjugation of a person to a collective, an ideology or a religion amounts to a violation of the value accorded to all human beings for their own sake simply by virtue of their being persons (BVerfGE 115, 118 <153>). It violates the individual’s quality as a subject and constitutes an interference with the guarantee of human dignity which fundamentally violates the free democratic basic order.

bb) Human dignity is egalitarian; it is founded exclusively in the fact that a person belongs to the human race, regardless of features such as origin, race, age or gender […]. Inherent in the individual’s entitlement to respect as a person is the recognition of the individual as an equal member of the legally-constituted community […]. Thus, a legally devalued status or degrading inequality of treatment is incompatible with human dignity […]. This is in particular the case if such inequalities of treatment violate the prohibitions of discrimination under Art. 3(3) GG, which flesh out human dignity, regardless of the fundamental question of the human dignity content of the fundamental rights (cf. in this regard BVerfGE 107, 275 <284>). Anti-Semitic concepts or concepts aimed at racist discrimination are therefore incompatible with human dignity and violate the free democratic basic order.

d) The principle of democracy is a constitutive element of the free democratic basic order. Democracy is the form of rule of the free and equal. It is based on the idea of free self-determination of all citizens (cf. BVerfGE 44, 125 <142>). Insofar the Basic Law is based on the assumption of the intrinsic value and dignity of the human being who is enabled to be free; at the same time it guarantees the human rights which are the core of the principle of democracy by means of the right of citizens to determine in freedom and equality, by means of elections and other votes, the public authority which affects them in personal and objective terms […].

aa) The possibility of equal participation by all citizens in the process of forming the political will as well as accountability to the people for the exercise of state authority (Art. 20(1) and (2) GG) are indispensable for a democratic system. How these requirements are complied with is not decisive for the question of compatibility of a political concept with the free democratic basic order. Thus, a rejection of parliamentarianism, if it is accompanied by the demand for replacing it with a plebiscite system, cannot justify the accusation that this violates the free democratic basic order. It is a different case, however, if the aim of disparaging parliament is to establish a oneparty system.

In democracy, the formation of the political will takes its way from the people to the organs of the state and not vice versa (cf. BVerfGE 44, 125 <140>; 69, 315 <346>; 107, 339 <361>). The democratic principles of freedom and equality require equal opportunities for participation for all citizens. Only then the requirement of an open process of formation of the political will is complied with. Concepts involving the permanent or temporary arbitrary exclusion of individuals from this process are therefore not compatible with this requirement. […].

bb) […]

cc) The Basic Law has opted for a representative parliamentary democracy, which is why the election of parliament is particularly significant when it comes to creating the necessary relationship of accountability between the people and the government (cf. BVerfGE 83, 60 <72>). Accordingly, anyone who disparages parliamentarianism without demonstrating in what other way due regard can be given to the principle of sovereignty of the people and how the openness of the process of forming the political will can be guaranteed, departs from the framework of the free democratic basic order.

e) Finally, the principle of the rule of law is an indispensable part of the free democratic basic order within the meaning of Art. 21(2) first sentence GG. […].The principle that the public authority is bound by the law (Article 20(3) GG) and oversight in that respect by independent courts are determinative for the concept of the free democratic basic order. At the same time, the protection of the freedom of the individual requires that the use of physical force is reserved for the organs of the state which are bound by the law and subject to judicial oversight. Thus the state’s monopoly on the use of force […] must likewise be regarded as part of the free democratic basic order within the meaning of Art. 21(2) first sentence GG.

2. The second requirement for establishing the unconstitutionality of a political party in accordance with Art. 21(2) first sentence GG is that it should be seeking to “undermine” or “abolish” the free democratic basic order in the sense described above.

a) […]

b) Considered in a differentiated way, the concept of “abolishing” (beseitigen) describes the abolishment of at least one of the constituent elements of the free democratic basic order or its replacement with another constitutional order or another system of government […].

c) The term “undermine” (beeinträchtigen) has, in contrast to the term “abolish”, an independent regulatory content which extends the area of application of Art. 21(2) first sentence GG.

aa) Contrary to the respondent’s view, the constituent element of “undermining” is not merely an insignificant editorial error on the part of the constitutional legislature (Verfassungsgeber).

(1) […]

(2) […]

bb) On this basis, the criterion “undermining” can be assumed to be met once a political party, according to its political concept, noticeably threatens the free democratic basic order. Such an “undermining” can therefore already be deemed to take place if a political party is working in a qualified manner to bring about the suspension of the existing constitutional order, even without being clear about what constitutional order is supposed to replace the existing one. It is sufficient for it to be attacking one of the constituent elements of the free democratic basic order (human dignity, democracy and the rule of law), since these are interlocked and mutually dependent […]. A political party which rejects and fights against one of the central principles of the free democratic basic order cannot avoid prohibition by professing allegiance to the other principles […]. The decisive factor is […] whether a political party deliberately attacks those fundamental principles which are indispensable for free and democratic co-existence […].

3. The fact that a political party is seeking to abolish or undermine the free democratic basic order must […] be clear from its “aims” or from the “behaviour of its adherents”. Its “aims” and the “behaviour of its adherents” are accordingly the only sources of information for establishing the unconstitutionality of a political party.

a) The aims of a political party are the embodiment of what a party intends to achieve politically, irrespective of whether these are intermediate or final aims, shortterm or long-term aims or main or ancillary aims (cf. BVerfGE 5, 85 <143 et seq.> […]). They normally result from the party’s programme and other official party statements, from the writings of authors recognised by the political party as authoritative about the political ideology of the party, from speeches given by its leading functionaries, from training and propaganda materials used in the party and from newspapers and magazines published or influenced by it (cf. BVerfGE 5, 85 <144>).

It is the political party’s real aims not its purported ones which are decisive. It is not required that a political party openly professes its anti-constitutional objectives. (cf. BVerfGE 2, 1 <20>; 5, 85 <144> […]. Thus it is not necessary to limit the determination of the aims pursued by a political party to its programme or official statements […], even though, as a rule, the programme is an essential source of information for establishing what the political party’s objectives are.

b) As well as in themes addressed in its programme, the intentions of the political party can be reflected in the behaviour of its adherents (cf. BVerfGE 2, 1 <22>). Adherents in this sense are all persons who support a party’s cause and profess their commitment to the party, even if they are not members of the political party (cf. BVerfGE 2, 1 <22>; see also BVerfGE 47, 130 <139>). […]

However, not all behaviour by adherents can be attributed to a political party. Attributing certain behaviour to a party may be problematic in particular if the political party has no possibility of influencing such behaviour. The determining factor is therefore whether the political will of the political party in question is recognisably being expressed in the respective adherent’s behaviour. This will normally be taken to be the case if the behaviour reflects a fundamental tendency existing in the political party or if the political party explicitly espouses such behaviour. […]

aa) Activities of a political party’s organs, specifically the party’s executive committee and its leading functionaries, can generally be attributed to the political party […]. Activities of the political party’s publication organs and the behaviour of leading functionaries of sub-organisations are also automatically attributable to it.

bb) Statements or actions by ordinary members can only be attributed to the political party if they are undertaken in a political context and the political party has approved or condoned them. Attribution appears likely if the statement or action has a direct link to a party event or other party activities, especially if the party does not distance itself from it. If an organisational link to party activities is lacking, the political party has to be aware of the political statement or action by the member at issue and nonetheless condone or even support the statement or action, even though counter-measures (exclusion from the party or disciplinary measures) would be possible and could reasonably have been expected.

cc) In the case of adherents who are not members of the political party, influence or approval, in whatever form, of their behaviour by the political party is generally a necessary condition for attributing such behaviour to the party. As a rule, activities by the political party itself which influence or justify the behaviour of its adherents would be required. […] Specific facts must exist, however, which justify regarding the adherents’ behaviour as an expression of the political party’s will. Merely voicing approval in retrospect will only be sufficient for attributing the adherents’ behaviour to the party […] if the political party thus recognisably espouses this as part of its own anticonstitutional endeavours.

dd) If members of a political party commit criminal offences, this is only relevant in proceedings to prohibit the political party if such offences are connected with the legally protected goods set out in Art. 21(2) first sentence

ee) There can be no blanket attribution of criminal offences and acts of violence if there is no link for such an attribution. In particular, and contrary to the opinion stated by the applicant, the creation of or support for a certain political climate does not on its own permit attributing criminal actions committed in that political climate to a political party. It must rather be specifically determined whether the criminal action should be regarded as part of the anti-constitutional endeavours of the political party. Within the framework of Art. 21(2) first sentence GG, criminal acts committed by third parties, for example, may be attributed to a political party only if the political party has rendered material or organisational assistance, if personal links exist between the political party and the group committing the act or if members of the political party were involved in the act in question.

ff) Parliamentary statements may be attributed to a political party in proceedings to prohibit that political party. Contrary to the view of the respondent, no differing assessment may be inferred here from the principle of indemnity […].

Under Art. 46(1) first sentence GG, a member of parliament may not be subjected to court proceedings or disciplinary action or otherwise called to account for any utterance made in the Bundestag. […] For this reason, the fact that the loss of a mandate, in the event of the prohibition of a political party based on parliamentary utterances, is merely an indirect consequence of parliamentary action does not generally rule out the applicability of Art. 46(1) first sentence GG.

In interpreting Art. 46(1) first sentence GG, however […], the fundamental decision of the Constitution in favour of a “militant democracy” must be taken into consideration (cf. insofar with regard to Art. 10 GG: BVerfGE 30, 1 <19>) and a balance must be struck in accordance with the principle of practical concordance between protection of indemnity under Art. 46 GG and protection of the free democratic basic order under Art. 21(2) first sentence GG. […] Protection of indemnity may indeed be taken into consideration in any decision on the loss of mandate resulting from the prohibition of a political party. […]

4. […]

a) In interpreting the criterion of “seeking” (darauf ausgehen) account must be taken of the decision on values in the Constitution in favour of openness of the process of forming the political will (Art. 20(1) and (2) first sentence GG), freedom of political expression (Art. 5(1) GG) and the freedom of political parties (Art. 21(1) GG). An interference with these constitutional goods which a prohibition of a political party involves is only permitted to the extent required by the protective purpose of Art. 21(2) GG. It is therefore required that a political party actively espouses its aims and thus works towards undermining or abolishing the free democratic basic order or endangering the existence of the Federal Republic of Germany.

[…]

Art. 21(2) GG does not place sanctions on ideas or convictions. The provision does not involve the prohibition of views or ideology, but the prohibition of an organisation […]. Intervention under Art. 21(2) GG only comes into question once a political party takes its anti-constitutional aims into the public sphere and acts against the free democratic basic order or the existence of the state. Thus, beyond a mere “professing” of its own anti-constitutional aims, the political party must exceed the threshold of actually “combating” the free democratic basic order or the existence of the state […]. Only an understanding of “seeking” which takes the precondition of exceeding this threshold into account satisfies the requirement of interpreting Art. 21(2) GG restrictively.

a) […]

c) The criterion of “seeking” presumes systematic action in the sense of qualified preparation for undermining or abolishing the free democratic basic order or endangering the existence of the Federal Republic of Germany.

aa) For the presumption of systematic action by the political party it is necessary for it to be continually working towards the realisation of a political concept that is contrary to the free democratic basic order. This can only be assumed if the individual action is an expression of a fundamental tendency that is attributable to the political party (cf. BVerfGE 5, 85 <143>). Efforts by individual party adherents cannot be taken to establish that the political party is unconstitutional if the attitude of the political party is otherwise loyal to the goods protected under Art. 21(2) first sentence GG (cf. BVerfGE 5, 85 <143>). […]

bb) Moreover, the systematic action of the political party must amount to a qualified preparation with regard to achieving its aims directed against the goods protected under Art. 21(2) GG. Insofar there must be a target-oriented connection between the political party’s own actions and abolishing or undermining the free democratic basic order.

Art. 21(2) GG does not, conversely, require action which is punishable under criminal law. […]

[…]

Accordingly, if the prohibition of a political party does not require the use of illegal or criminally relevant means or methods, these can nonetheless provide important indications both that the aims of this political party violate the free democratic basic order and that the political party is seeking to realise these aims within the meaning of Art. 21(2) GG. If, for example, it can be established that adherents of a political party use force in a manner which can be attributed to the party for achieving its political aims, it may be inferred from this that the political party does not recognise the state’s monopoly of the use of force which is rooted in the principle of the rule of law and that it is pursuing insofar aims directed at undermining the free democratic basic order.

[…]

d) It is not required that the actions of the political party in themselves pose a specific threat to the goods protected under Art. 21(2) first sentence GG. This is clear from the wording, the provision’s history and its purpose.

aa) […]

bb) […]

cc) […] By their very nature, proceedings to prohibit a political party have the character of a preventive measure (cf. BVerfGE 5, 85 <142>; 9, 162 <165>; 107, 339 <386>; […]). They are not aimed at defending against already existing threats to the free democratic basic order but at preventing such threats from possibly emerging in the future.

e) In accordance with the exceptional character of the prohibition of a political party as the preventive prohibition of an organisation and not a mere prohibition of views or of an ideology, there can, however, be a presumption that the criterion of “seeking” has been met only if there are specific weighty indications suggesting that it is at least possible that a political party’s actions directed against the goods protected under Art. 21(2) GG may succeed (potentiality).

Conversely, if it is entirely unlikely that a party’s actions will successfully contribute to achieving the party’s anti-constitutional aims, there is no need for preventive protection of the Constitution by using the instrument of the prohibition of the political party, which is the sharpest weapon, albeit a double-edged one, a democratic state under the rule of law has against its organised enemies (cf. BVerfGE 107, 339 <369>). On the contrary, the prohibition of a political party may be considered only if the political party has sufficient means to exert influence due to which it does not appear to be entirely unlikely that the party will succeed in achieving its anticonstitutional aims, and if it actually makes use of its means to exert influence. If this is not the case, then the requirement of “seeking” within the meaning of Art. 21(2) GG is not met. The Senate does not concur with the deviating opinion set out in the judgment in the case of the Communist Party of Germany (Kommunistische Partei Deutschlands – KPD) which held that the lack of any prospect, as far as humanly measurable, that the political party will be able to realise its unconstitutional aims at any time in the foreseeable future does not bar a prohibition of the party (cf. BVerfGE 5, 85 <143>).

Whether there exists a sufficient degree of potentiality in terms of whether a party will achieve its aims must be determined on the basis of an overall assessment. This would take into account the situation of the political party (membership numbers and whether they are rising or falling, organisational structure, degree of mobilisation, campaigning capability and financial situation), its impact in society (election results, publications, alliances and supporter structures), its representation in public offices and representative bodies, the means, strategies and measures it deploys and all other facts and circumstances from which it can be inferred whether it appears possible that the aims pursued by the political party will be realised. This requires that there are sufficient specific and weighty indications suggesting that the actions of the political party against the goods protected under Art. 21(2) first sentence GG may succeed. This must take account both of the prospects for the political party’s success in merely participating in the struggle of political opinions and also of the possibility that the party’s political aims will be successfully achieved by other means.

As a rule, the criterion of “seeking” will be met if a political party tries to achieve its unconstitutional aims through the use of force or by committing crimes. Not only does the use of force imply disregard of the state’s monopoly on the use of force, but it also involves a serious interference with the principle of free and equal participation in the formation of the political will. It also indicates a certain potentiality in terms of whether a party will achieve its aims. The use of force is in itself a weighty indication that action against the goods protected under Art. 21(2) first sentence GG may be successful. The same applies if a political party acts below the threshold of conduct punishable under criminal law in a manner which restricts the freedom of the process of forming the political will. This is the case, for example, if a political party creates an “atmosphere of fear“ or threat which is likely to undermine in the long term the free and equal participation of all in the process of forming the political will. In that respect it is sufficient if such impairments are brought about in regionally restricted areas. It does, however, require that the party’s actions are likely, seen objectively, to curtail the freedom of the formation of the political will. Insofar, purely subjective feelings of threat are not sufficient.

Contrary to the applicant’s view, it is not sufficient for meeting the criterion of “seeking” that the political party’s statements are designed to be realised politically and that they can lead to actions; all statements made by political parties meet this requirement. On the contrary, specific weighty indications are required, suggesting that the call for action involved in the dissemination of the political party’s unconstitutional ideology might be successful.

5. Art. 21(2) GG leaves no room for assuming that there are other (unwritten) criteria besides the prerequisites for the prohibition of a political party that have been set out above. Neither can a party’s similarity in nature to National Socialism provide a substitute for the criteria set out in Art. 21(2) GG (a), nor can the principle of proportionality be applied in proceedings regarding the prohibition of political parties (b).

[…]

ee) A party’s similarity in nature to National Socialism must, however, be taken into account in any examination of the individual criteria under Art. 21(2) first sentence GG. Conclusions may thus be drawn from the glorification of the NSDAP or the trivialisation of the crimes committed by the National Socialists as to the real aims being pursued by the political party, which may possibly not be completely clear from its programmatic materials. The central principles of National Socialism (“Führer” principle, ethnic definition of the “people” (Volk), racism and anti-Semitism) violate human dignity and at the same time violate the requirements of equal participation by all citizens in the process of forming the political will of the people and, due to the “Führer” principle, the principle of the sovereignty of the people. Thus a party’s similarity in nature to National Socialism is an indication that this political party is pursuing aims which are detrimental to the free democratic basic order. […]

b) […]

The fact, however, that the constitutional legislature (Verfassungsgeber) adopted an exhaustive provision in Art. 21(2) first sentence GG which leaves no room for a separate examination of proportionality bars the applicability of the principle of proportionality in proceedings for the prohibition of a political party. […] In Art. 21(2) first sentence GG, the constitutional legislature (Verfassungsgeber) has provided for the mandatory establishment of the unconstitutionality of the political party if the constituent elements are met. There is no scope for decision-making within which the principle of proportionality could be applied […].

[…]

III.

The mentioned requirements that result from the standards set out above and which need to be met to establish that a political party is unconstitutional are fully compatible (2) with the case-law of the European Court of Human Rights (ECtHR) on prohibitions of political parties, which it derived from the European Convention on Human Rights (ECHR) (1) and which the Federal Constitutional Court takes into consideration as an aid to interpretation (cf. BVerfGE 128, 326 <366 et seq.>).

1. Since the ECHR does not specifically regulate the rights of political parties, the standard for conformity of prohibitions of political parties with the Convention is Art. 11 ECHR in particular (cf. ECtHR <Grand Chamber – GC>, United Communist Party of Turkey and Others v. Turkey, Judgment of 30 January 1998, no. 133/1996/ 752/951, §§ 24 et seq.; ECtHR <GC>, Socialist Party and Others v. Turkey, Judgment of 25 May 1998, no. 20/1997/804/1007, § 29; ECtHR, Yazar and Others v. Turkey, Judgment of 9 April 2002, no. 2723/93 et al., §§ 30 et seq.; ECtHR, Parti de la Democratie <DEP> c. Turquie, Judgment of 10 December 2002, no. 25141/94, §§ 28 et seq.). At the level of justification, the ECtHR’s examination additionally considers the question of inapplicability of rights under the Convention due to Art. 17 ECHR (cf. ECtHR <GC>, United Communist Party of Turkey and Others v. Turkey, Judgment of 30 January 1998, no. 133/1996/752/951, § 60; ECtHR <GC>, Socialist Party and Others v. Turkey, Judgment of 25 May 1998, no. 20/1997/804/1007, §§ 29 and 53; ECtHR <GC>, Freedom and Democracy Party <ÖZDEP> v. Turkey, Judgment of 8 December 1999, no. 23885/94, § 47).

a) Here, the ECtHR explicitly recognises the possibility of prohibiting a political party in order to protect democracy. This must, however, satisfy the requirements of Art. 11(2) first sentence ECHR, which means that it must be provided for by law and must be necessary in a democratic society (cf. ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 103; ECtHR, Herri Batasuna and Batasuna v. Spain, Judgment of 30 June 2009, no. 25803/04 et al., § 82).

b) According to the ECtHR the necessity of prohibiting a political party in a democratic society requires, firstly, that this pursues a legitimate aim. The legitimate aims in this regard are exhaustively set out in Art. 11(2) first sentence EHRC (cf. ECtHR <GC>, United Communist Party of Turkey and Others v. Turkey, Judgment of 30 January 1998, no. 133/1996/752/951, §§ 40 and 41; ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 67; ECtHR, Herri Batasuna and Batasuna v. Spain, Judgment of 30 June 2009, no. 25803/04 et al., § 64; ECtHR, HADEP and Demir v. Turkey, Judgment of 14 December 2010, no. 28003/03, § 44; ECtHR, Eusko Abertzale Ekintza – Acción Nacionalista Vasca <EAE-ANV> c. Espagne, Judgment of 15 January 2013, no. 40959/09, § 54).

c) A prohibition of a political party further requires a “pressing social need” to that end (cf. ECtHR <GC>, Socialist Party and Others v. Turkey, Judgment of 25 May 1998, no. 20/1997/804/1007, § 49; ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 104).

aa) According to the ECtHR, whether such a need exists is a matter for decision in each individual case. In view of the far-reaching interference associated with prohibition for the political party and for democracy as such, prohibition only comes into question either if the political party is pursuing aims which are incompatible with the fundamental principles of democracy and the protection of human rights or if the means used by the political party are not lawful and democratic, in particular if it incites to violence or advocates the use of force […]. While it is true that a political party may promote a change in the law or the legal and constitutional structures of the state, it must use lawful and democratic means to do so and the proposed changes must for their part also be compatible with fundamental democratic principles (cf. ECtHR, Yazar and Others v. Turkey, Judgment of 9 April 2002, no. 22723/93 et al., § 49; ECtHR < GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 98; ECtHR, Parti de la Democratie <DEP> c. Turquie, Judgment of 10 December 2002, no. 25141/94, § 46; ECtHR, Parti Socialiste de Turquie <STP> et autres c. Turquie, Judgment of 12 November 2003, no. 26482/95, § 38; ECtHR, Herri Batasuna and Batasuna v. Spain, Judgment of 30 June 2009, no. 25803/04 et al., § 79; ECtHR, HADEP and Demir v. Turkey, Judgment of 14 December 2010, no. 28003/03, § 61).

bb) With regard to the timing of an order to prohibit a political party, the ECtHR explicitly recognises the admissibility of preventive intervention. It is the opinion of the ECtHR that a state cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with democracy, even though the danger of that policy for democracy is sufficiently established and imminent. A state must reasonably be able to prevent the realisation of a political programme which contradicts the Convention (cf. ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., §§ 102 and 103; ECtHR, Herri Batasuna and Batasuna v. Spain, Judgment of 30 June 2009, no. 25803/04 et al., §§ 81 and 82). This grants the Convention’s contracting states at least a certain margin of appreciation in determining the right timing for prohibiting a political party […].

cc) Whether the prohibition of a political party corresponds to a pressing social need is determined by the ECtHR on the basis of an overall examination of the specific circumstances (cf. ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., §§ 104 and 105; ECtHR, Herri Batasuna and Batasuna v. Spain, Judgment of 30 June 2009, no. 25803/04 et al., § 83). The ECtHR finds in this regard that the historical experiences and developments in the Convention’s contracting state in question should also be taken into consideration (cf. ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 124; ECtHR, Partidul Comunistilor and Ungureanu v. Romania, Judgment of 3 February 2005, no. 46626/99, § 58; ECtHR, HADEP and Demir v. Turkey, Judgment of 14 December 2010, no. 28003/03, §§ 69 et seq.; ECtHR, Republican Party of Russia v. Russia, Judgment of 12 April 2011, no. 12976/07, § 127).

d) Finally, in the opinion of the ECtHR the prohibition of a political party must be proportionate to the aims pursued with the prohibition. In this regard, however, the ECtHR limits the test of “proportionality” (Angemessenheit) to the legal implications side of the scales and determines whether the consequences of the prohibition of the political party arising from national law are out of proportion to the seriousness of the threat to democracy established with regard to a pressing social need. As a rule, if a pressing need exists it finds that the prohibition is proportionate (cf. ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., §§ 133 and 134 ; ECtHR, Herri Batasuna and Batasuna v. Spain, Judgment of 30 June 2009, no. 25803/04 et al., § 93; ECtHR, Eusko Abertzale Ekintza – Acción Nacionalista Vasca <EAE-ANV> c. Espagne, Judgment of 15 January 2013, no. 40959/09, § 81).

In just two cases where the use of force by individual party members was endorsed on a few occasions, the court found, irrespective of the existence of a pressing social need, that prohibition of the political party based on this conduct would be disproportionate (cf. ECtHR, Parti de la Democratie <DEP> c. Turquie, Judgment of 10 December 2002, no. 25141/94, §§ 61 et seq. and 64 et seq.; ECtHR, Parti pour une société démocratique <DTP> et autres c. Turquie, Judgment of 12 January 2016, no. 3840/10 et al., §§ 101 et seq.). In the case of the Turkish DTP, it explicitly drew attention to the fact that, in contrast to individual utterances by its members, the political party as a whole had stated its commitment to peaceful and democratic solutions and that it was not to be assumed that these individual statements could have any impact on national security or public safety (cf. ECtHR, Parti pour une société démocratique <DTP> et autres c. Turquie, Judgment of 12 January 2016, no. 3840/10 et al., §§ 85 et seq., § 98).

2. The standard set out for establishing the unconstitutionality of a political party in accordance with Art. 21(2) GG is no less stringent than the requirements derived by the ECtHR from Art. 11(2) ECHR for the prohibition of a political party.

a) Art. 21(2) first sentence GG plainly takes account of the requirement that the prohibition must be provided for by law. Furthermore, the protection of the free democratic basic order and of the existence of the state constitutes a legitimate aim within the meaning of Art. 11(2) ECHR. In this regard the ECtHR and the Federal Constitutional Court concur in proceeding from the assumption that a political party has to oppose not only individual provisions of the Constitution but also fundamental principles of the free constitutional state.

b) If the criteria under Art. 21(2) first sentence GG are met, it can also be presumed that a pressing social need exists for prohibiting a political party. If a political party acts in a systematic manner in the sense of qualified preparation for undermining or abolishing the free democratic basic order and if there are specific and weighty indications suggesting the possibility that this action may succeed, this satisfies the requirements which the ECtHR has established in terms of the necessity for prohibiting the political party to protect democratic society in accordance with Art. 11(2) first sentence ECHR. Nothing else may be inferred from the reference by the ECtHR to the need for a sufficiently established and imminent threat (cf. ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 102). Contrary to one opinion voiced in the literature […], this cannot be taken to mean that, from the point of view of the ECtHR, the prohibition of a political party is only in compliance with the Convention if a specific threat to the free democratic order has already emerged and the success of the anti-constitutional endeavours of the political party is immediately imminent.

Such a presumption is already contradicted by the fact that the ECtHR has in individual cases regarded approval of acts of terrorism as being sufficient for the prohibition of a political party without basing this on the size or significance of the prohibited regional political parties and the threats posed by them to the constitutional order (cf. ECtHR, Herri Batasuna and Batasuna v. Spain, Judgment of 30 June 2009, no. 25803/04 et al., §§ 85 et seq.; ECtHR, Eusko Abertzale Ekintza – Acción Nacionalista Vasca <EAE-ANV> c. Espagne, Judgment of 15 January 2013, no. 40959/ 09, §§ 67 et seq.). The ECtHR moreover explicitly acknowledges the preventive character of the prohibition of political parties and grants states a margin of appreciation in determining the timing of prohibitions. In cases where it has found that imposed prohibitions of political parties are not in compliance with the Convention, it has also (additionally) drawn attention to the fact that the political parties concerned in these cases had no real chance of bringing about political change (cf. ECtHR, Yazar and Others v. Turkey, Judgment of 9 April 2002, no. 22723/93 et al., § 58; ECtHR, Parti de la Democratie <DEP> c. Turquie, Judgment of 10 December 2002, no. 25141/94, § 55; ECtHR, The United Macedonian Organisation Ilinden-Pirin and Others v. Bulgaria, Judgment of 20 October 2005, no. 59489/00, § 61). Accordingly, it cannot be inferred that the existence of a specific threat to the democratic constitutional state is a necessary criterion for the prohibition of a political party […].

Indeed, as the ECtHR explicitly states, the existence of a pressing social need to prohibit a political party must be established on the basis of an overall examination of the circumstances in the specific individual case and must take into account specific national features (cf. ECtHR <GC>, United Communist Party of Turkey and Others v. Turkey, Judgment of 30 January 1998, no. 133/1996/752/951, § 59; ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 124; ECtHR, Partidul Comunistilor and Ungureanu v. Romania, Judgment of 3 February 2005, no. 46626/99, § 58; ECtHR, HADEP and Demir v. Turkey, Judgment of 14 December 2010, no. 28003/03, §§ 69 et seq.; ECtHR, Republican Party of Russia v. Russia, Judgment of 12 April 2011, no. 12976/07, § 127). Therefore, in relation to Art. 21(2) GG, it must be taken into account that the provision is, above all, based on the historical experience of the rise of the Nazi party in the Weimar Republic and efforts to prevent recurrence of such incidents by means of early intervention against totalitarian political parties. Against that background, the notion that the prohibition of a political party should only be considered when a political party has become so strong that, if events are allowed to take their course, undermining or abolition of the free democratic basic order does not merely seem possible but is in fact probable, is incompatible with such efforts. In that respect, the determination in Art. 21(2) first sentence GG of an early timing for the prohibition of a political party that does not require waiting for a specific threat to the free democratic basic order to emerge is the result of the specific historical experience of the establishment of the tyrannical and despotic rule of the National Socialists. Against this background, a pressing social need to prohibit a political party in accordance with the case-law of the ECtHR may be presumed to exist if the requirements under Art. 21(2) first sentence GG are met, namely if there are specific and weighty indications which suggest that it is at least possible that the political party’s actions directed against the free democratic basic order could be successful.

c) The considerations of the ECtHR regarding the requirement of proportionality of the prohibition of a political party do not raise any concerns about the standard applicable under Art. 21(2) GG and its conformity with the Convention either.

aa) The ECtHR generally considers the existence of a pressing social need to be sufficient to affirm the proportionality of the prohibition of a political party (cf. ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 133). Insofar as the court nevertheless exceptionally found that a prohibition would be disproportionate, this concerned two isolated cases of approval of acts of violence by individual functionaries of the political party in question (cf. ECtHR, Parti de la Democratie <DEP> c. Turquie, Judgment of 10 December 2002, no. 25141/94, §§ 61 et seq. and 64 et seq.; ECtHR, Parti pour une société démocratique <DTP> et autres c. Turquie, Judgment of 12 January 2016, no. 3840/10 et al., §§ 101 et seq.). Under circumstances like these, there would not have been room for establishing the unconstitutionality of a political party under the framework of Art. 21(2) first sentence GG either. There would be a lack of a fundamental tendency attributable to the political party to use force as a means of political debate (cf. para. 576). Moreover, mere utterances by individual party members against the free democratic basic order would probably not meet the requirement of being potentially suitable for achieving the pursued anti-constitutional aims, a requirement called for in the context of the criterion of “seeking”. Accordingly, the ECtHR’s recourse to the requirement of proportionality does not amount to a tightening in relation to the criteria which have to be met within the framework of Art. 21(2) first sentence GG for the prohibition of a political party.

bb) Likewise, the conformity of Art. 21(2) first sentence GG with the Convention is not called into question to the extent that the ECtHR, in its decision concerning the prohibition of the DTP, refers, with regard to proportionality, to the possibility under Turkish law of cutting the funds paid to a political party by the state rather than prohibiting it (cf. ECtHR, Parti pour une société démocratique <DTP> et autres c. Turquie, Judgment of 12 January 2016, no. 3840/10 et al., §§ 101 et seq.). It is a matter for the respective national law, having due regard for the requirements of the ECHR, to prescribe whether and to what extent sanctions may be imposed on political parties which pursue anti-constitutional aims. In this regard, the national legislature is at liberty to waive sanctions altogether, to create possibilities for graduated sanctions or to restrict itself to the sanction of prohibition of the political party.

Therefore, the legislative concept of Art. 21(2) first sentence GG, which dispenses with differentiated possibilities for applying sanctions, is compatible with the Convention. The only possible legal consequence prescribed by this provision if its criteria are met is the establishment of unconstitutionality. The constitutional situation as it currently applies excludes sanctions below the level of prohibition of the political party, which would include a reduction or cessation of state funding. Contrary to the respondent’s view, there is thus no room within the framework of Art. 21(2) GG for the application of the principle of proportionality (cf. para. 599 et seq.), unless the legislature amends the Constitution and introduces a different approach. This raises no concerns in terms of the Convention as long as the order to prohibit a political party complies with the criteria for the proportionality of a prohibition which are derived from the case-law of the ECtHR with regard to Art. 11(2) first sentence ECHR. This is the case if the criteria of Art. 21(2) first sentence GG are met.

d) To the extent that the respondent derives from the ‘Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures’ of the Venice Commission of the Council of Europe of 10/11 December 1999 (CDL-INF<2000>001; cf. European Commission for Democracy through Law <Venice Commission>, Compilation of Venice Commission Opinions and Reports concerning Political Parties, CDL<2013>045, p. 38) the opinion that the prerequisite for a prohibition of a political party under the Convention is that the political party must be pursuing its political aims with the use of force and that this must be taken into consideration within the framework of Art. 21(2) GG, it is ignoring the fact that the Venice Commission’s Guidelines are non-binding recommendations which the ECtHR has not adopted with regard to the requirements for a prohibition of a political party. Instead, it examines whether there is a pressing social need for prohibition both on the basis of the means employed by the political party and the aims it is pursuing (cf. ECtHR, Yazar and Others v. Turkey, Judgment of 9 April 2002, no. 22723/93 et al., § 51 et seq.; ECtHR <GC>, Refah Partisi and Others v. Turkey, Judgment of 13 February 2003, no. 41340/98 et al., § 98; ECtHR, Herri Batasuna and Batasuna v. Spain, Judgment of 30 June 2009, no. 25803/04 et al., § 79; ECtHR, HADEP and Demir v. Turkey, Judgment of 14 December 2010, no. 28003/03, § 61). It may, therefore, be the case that the use or endorsement of force is sufficient as a condition for prohibiting a political party according to the standards of the ECtHR. It is not, however, an indispensable prerequisite for prohibiting a political party in accordance with the requirements of Art. 11(2) first sentence ECHR.

IV.

The proposal by the respondent to suspend the proceedings and refer the questions raised by it in this connection to the Court of Justice of the European Union in accordance with Art. 267(1)(a) of the Treaty on the Functioning of the European Union (TFEU) for a preliminary ruling lacks any objective basis.

1. […]

2. a) The Second Senate of the Federal Constitutional Court has already found, in its order of 22 November 2001 (BVerfGE 104, 214), that the European Union has no jurisdiction under the currently applicable treaties for ruling on the law relating to political parties. While it is the case that Art. 191 of the Treaty establishing the European Community (EC Treaty) acknowledged the function of political parties at European level in the process of European integration and was insofar the basis for the formation of joint parliamentary groups in the European Parliament, this does not mean that EU law contains any statement regarding whether and under what conditions a political party may be prohibited by a Member State of the European Union. Nor do general principles of EU law such as the rule of law, democracy and the protection of fundamental rights give rise to a question capable of being referred (cf. BVerfGE 104, 214 <218 and 219>).

b) This is also upheld following the entry into force of the Treaty of Lisbon. […]

c) No different conclusion can be drawn from Regulation (EC) No. 2004/2003 on the regulations governing political parties and rules regarding their funding at European level. This was issued on the basis of Art. 191 EC Treaty and does not establish any jurisdiction of the European Union beyond the regulatory content thereof.

Thus, the prohibition of national political parties remains an exclusive matter of national law. […]

D.

Measured against these standards, the application for prohibition is unfounded. It is true that the respondent seeks, by reason of its aims and the behaviour of its adherents, to abolish the free democratic basic order (I.). Since, however, there are no specific and weighty indications suggesting that the achievement of the aims pursued by the respondent can possibly succeed, the criterion of “seeking” within the meaning of Art. 21(2) first sentence GG is not met (II.).

I.

The respondent disrespects the fundamental principles which are indispensable for the free democratic constitutional state. Its aims and the behaviour of its adherents disrespect human dignity (1.) and the core of the principle of democracy (2.) and display elements that are similar in nature to the historical National Socialism (3.). The respondent’s political concept advocates abolishing the free democratic basic order (4.).

1. The respondent’s political concept is incompatible with the guarantee of human dignity within the meaning of Art. 1(1) GG. […] The concept of the “Volk” it advocates is a negation of the personal right to respect deriving from the principle of human dignity and leads to the denial of fundamental equality before the law for all persons who do not belong to this ethnic Volksgemeinschaft. […]

[…]

a) The respondent’s party programme violates the right of the person to be valued and respected which derives from the intrinsic value of human life and the dignity of human beings […] (aa). […]

aa) […]

(1) In line with its concept of the primacy of the Volksgemeinschaft, the respondent demands that the highest aim of German politics should be the preservation of the German Volk, defined by descent, language, historical experience and values. It demands the endeavour for the “unity of Volk and state” and the prevention of “foreign infiltration (Überfremdung) of Germany with or without naturalisation” […]. As a matter of principle foreigners should not, it claims, have the right to stay in Germany, but only the duty to return to their home countries […].

(2) On this basis, the respondent has developed a political concept which is mainly aimed at a strict exclusion […] of all ethnic non-Germans. […]

(a) According to the respondent, fundamental rights explicitly apply to all Germans and the application of the principle of solidarity is limited to the community of all Germans […]. Accordingly, the respondent claims, measures by the state to promote the family should only promote German families. Ownership of German land may only be acquired by Germans […].

(b) In Chapter 10 of its party programme [the respondent demands] legislation to repatriate foreigners living here […]. Integration, it claims, amounts to genocide. The building of foreign religious buildings should be stopped; the fundamental right to asylum under Art. 16a GG should be abolished […].

(c) In Chapter 16, ‘Education and Culture’, the respondent objects to German and foreign schoolchildren being taught together […].

(d) In Chapter 17, ‘Reform of the Legal System’, the respondent demands a referendum on the reintroduction of the death penalty and full enforcement of life sentences. […] Moreover, […] a category of ‘naturalised foreigners’ […] should be added to police statistics […].

(3) The very aims set out in the respondent’s party programme are incompatible with the guarantee of human dignity. […]

In particular, […] the party’s programme advocates a devalued legal status practically amounting to full deprivation of rights of all those who do not belong […] to its ethnically-defined Volksgemeinschaft […].

bb) The respondent must accept this programme being held against it. […]

(1) […]

(2) […]

(a) […]

(b) At any rate, attribution […] is established […] by virtue of the confirmation of the programme’s content by the relevant persons in the respondent’s leadership. […] In its written submissions in the present proceedings the respondent has repeatedly made reference to this programme and nowhere has it distanced itself from it. In the oral hearing, Mr Franz, the party chairman, explicitly confirmed the applicability of the programme and the fact that it coincides with the respondent’s convictions. […]

[…]

b) The incompatibility of the aims pursued by the respondent with the guarantee of human dignity […] is proven by virtue of its attributable publications and confirmed by statements made by its leading functionaries. […]

aa) (1) The concept of the “Volk” advocated […] by the respondent is described as follows in the brochure ‘Wortgewandt […]’ published in its 2nd edition by the party’s executive committee in April 2012:

A German is anyone who is of German origin and was thus born into the ethnic and cultural community of the German people. […] An African, an Asian or an Oriental can never become a German because the award of a piece of printed paper […] can in no way change biological heredity, […] and members of other races remain […] foreign bodies, however long they may have lived in Germany. […]

[…]

(a) The regional association of the Land of Bavaria made the following comment on Facebook in February 2015 about the arrival of African refugees:

To be German means to belong to the German Volk, not because of a deed of naturalisation but by birth and descent. One is German by virtue of one’s blood and nothing else!

So be proud and thankful, German women and German men, that you were born with the blessing of a German birth. […]

bb) The supremacy of the Volksgemeinschaft over the individual, and its racial foundation […] are made especially clear in statements by the Young National Democrats (JN) (1) […].

(1) (a) D., the federal training director of the JN puts it thus […]:

The community is supreme here. […] Our ideology places the Volk at the heart of all being. […]

(b) […]

(c) In its “Guidelines – Political Concepts” (Leitfaden – Politische Grundbegriffe) published […] by the federal executive committee of the JN in January 2013 it is stated that:

Freedom is the pursuit of the meaning of life, which is the preservation of the species. […]

[…]

The intermixing of peoples leads, it claims, to the loss of the “best and noblest 666 virtues” and to the destruction of the respective Volk:

[…] The intermixing of different cultures has never led to a multicultural society as is so often claimed to exist today. All that ever came out of it was a mish-mash that led to destruction. […]

[…]

These statements culminate in a discussion of the concept of race, which is regard- 668 ed by the JN as a “law of nature” and a fundamental element of its view of the world […].

(d) These statements by the JN can be attributed to the respondent. […]

[…]

cc) The consequence of the ethic definition […] of the “German Volksgemeinschaft is the devaluation of the legal status of all persons who do not belong to this community. […] [S]tatements and activities attributable to the respondent prove the fact that this also applies to naturalised German citizens with an immigration background […].

(1) In the Bundestag election campaign in 2009 the respondent’s regional association for Berlin sent a letter purporting to be an “unofficial announcement” to 22 politicians with an immigration background. Under the heading “Information provided by your repatriation of foreigners officer”, its addressees […] were told to make preparations for their “journey home” […].

In the 2013 Bundestag election campaign, the respondent’s regional association for Berlin once again sent a similar circular to candidates with an immigration background […].

(2) [This accords with] a television interview by a German journalist with an immigration background with the respondent’s deputy chairman, Ronny Zasowk. Asked what he would do with people like her […], he replied that they would be given a deportation order and would have to leave Germany. They would be able to take movable goods with them and would receive compensation for the rest.

[…]

(3) In the 2009 Landtag election campaign in Thuringia, W., the then Land managing director of the respondent, said, regarding the candidature of S., a local politician of colour,

Thuringia must stay German. We thank S. for his help as a guest worker […]. But he is no longer needed today […].

[…]

c) […]

(3) Against this background, the conclusion drawn by the expert witness Prof. Kailitz and submitted in the oral hearing, namely that the respondent, on the basis of its world view, advocates the expulsion of millions of people from Germany, is understandable. At any rate, it denies those whom it defines as “non-Germans” the right to remain in Germany […].

d) The disrespect for human dignity which can be inferred from [its] notion of an ethnically-defined Volksgemeinschaft is attested by numerous statements which are attributable to the respondent regarding attitudes towards foreigners (aa), immigrants (bb) and minorities (cc).

aa) […]

(1) […]

(2) Jürgen Rieger, as the respondent’s deputy federal chairman , imputed […] a lower level of intelligence to all dark-skinned people:

Negroes have an intelligence quotient between that of a retarded German and that of a normal German.

(3) In a Facebook post in May 2015 the respondent’s regional association for Bavaria warned German women against relationships with men of colour:

[…] In the cities there is already the situation that you can’t help meeting black Africans (Negroes) in the streets wherever you go. […]

They have been brought here to finally destroy our Volk, our ethnic community! German women and girls, don’t get involved with Negroes! Otherwise you will be committing a serious crime against your Volk!

The respondent’s argument […] that the author of this post simply wished to draw attention to the exploding number of asylum seekers is contradicted by the objective declaratory content of the statement and glosses over the wording which deliberately parallels that of National Socialist slogans regarding dealings with Jews […].

[…]

bb) It is in particular asylum seekers and immigrants who are at the centre of inhuman statements […].

(1) This is proven by the respondent’s parliamentary activities.

(a) (aa) In the Landtag of Saxony […] Mr Apfel, the former leader of the NPD parliamentary group […], said:

[…] Give your consent, close the gateway for Moslem bombers, Gypsy criminal gangs and social parasites from all over the world.

(Plenary proceeding reports (Plenarprotokoll) 5/27 of 17 December 2010, p. 2657)

(bb) A brief enquiry by Member of Parliament Apfel of 4 February 2013 […] included the question as to how many children were born with disabilities in Saxony in marriages between relatives […] entered into by immigrants.

(cc) In the Landtag of Mecklenburg-Western Pomerania, Udo Pastörs used the term “degenerated people” […] in relation to asylum seekers. In the same debate, Member of Parliament Tino Müller had previously spoken of “nine-headed gang of Negroes” […].

(b) […]

(2) Asylum seekers and immigrants […] have also been regularly disparaged […] in extra-parliamentary activities.

(a) (aa) For example, Jürgen Gansel advocated on his Facebook page on 21 April 2015 the rapid deportation of “asylum fraudsters, Moslem extremists and criminal foreigners”.

(bb) […]

(cc) The respondent’s regional association of the Land of Bavaria warns in a Facebook post […]: “Take care! Don’t get too close to the ‘refugees’! You’ll be risking your health! […] And scabies, a skin infection with parasites, is the least harmful thing you can catch from them!”

(dd) Maria Frank, the Land chairwoman of the Berlin National Women’s Ring (RNF), speaking at a demonstration […] in July 2013, described Moslems and black Africans generally as rapists, drug dealers and filthy: […].

(ee) […]

(ff) […]

(b) (aa) All these utterances are aimed at depriving asylum seekers and immigrants of their human dignity. […] The utterances also exceed […] the limits of general criticism of immigration policy […].

(bb) Each of these utterances is attributable to the respondent and its content is unmistakeable.

[…]

cc) In addition to asylum seekers and immigrants, the respondent also attacks religious and social minorities in a similar way, thus setting itself in opposition to human dignity.

[…]

In his 2009 Ash Wednesday speech given in the Saarland, Pastörs described citizens of Turkish origin as “sperm guns” and was as a result sentenced […] to a term of imprisonment […] by the Saarbrücken Regional Court (Landgericht) […] for incitement to hatred and violence.

[…]

(bb) High-ranking party functionaries of the respondent have also taken anti-Semitic 740 stances in public utterances.

(α) […]

[…]

(β) Karl Richter stated on 8 January 2015:

[…] There have been Jews in the Occident for at least 1500 years only as traders, usurers, Christ-murderers and in the ghetto. […]

To put it briefly and bluntly: MY Occident is Christian and in at least the same part Germanic. I do not need the “Jewish” in my Occident, and – if I may be so bold – I set no great store by it.

(γ) […]

[…]

(δ) The […] chairman of the respondent’s regional association of the Land of Berlin, Sebastian Schmidtke, [was] convicted of slander for wearing a black t-shirt with the slogan “All Jews are Bastards”.

(ε) […]

(ζ) […]

(b) […]

[…]

(3) The respondent’s disrespect for human dignity is not limited to the […] mentioned groups. It is clear from statements of its opinions regarding other groups that it does not respect insofar the right to personal respect deriving from human dignity.

[…]

2. The respondent also disrespects the free democratic basic order with a view to the principle of democracy. It is true that this attitude cannot be inferred with the requisite unambiguousness from the NPD party programme (a). But its rejection of the fundamental design of free democracy is clear if other publications and utterances by leading functionaries attributable to the respondent are considered, too (b). […]

a) […]

aa) The political concept of the respondent is incompatible with the right of all citizens of a state to equal participation in the formation of the political will of the state.

(1) (a) If the “rule of the Volk” (Volksherrschaft) presupposes the Volksgemeinschaft, as the respondent advocates […], this necessarily results in an exclusion from the democratic process of those people who, by reason of their ethnicity, do not belong to the Volksgemeinschaft.[…] Rather, the excluding nature of the Volksgemeinschaft involves a limitation, on grounds of ethnicity, of the right to equal participation in the formation of the political will which is incompatible with Art. 20(2) first sentence GG.

(b) When asked about this in the oral hearing, Jürgen Gansel confirmed this finding. He drew an explicit distinction between rule by the Volk (Volksherrschaft) and rule by the population (Bevölkerungsherrschaft) and stated that Volksherrschaft was linked to the ethnic Volk of the state and therefore only existed in the Federal Republic of Germany to a limited degree. […] [This] documents the fact that, in the view of the respondent, the right to democratic participation should be limited to members of the ethnically homogenous Volksgemeinschaft.

[…]

(2) (a) […]

bb) In addition, the respondent’s anti-democratic stance is clear from its negation of the principle of parliamentary democracy. […]

(1) (a) The fundamental rejection of the existing representative parliamentary system […] is made clear in an interview with Holger Apfel in Deutsche Stimme (“German Voice”, issue 12/2008, p. 3):

[…] Parliament degenerated into a cheap caricature of real rule by the Volk a long time ago.

(b) Similarly, the former chairman of the respondent’s regional association of the Land of Saxony Anhalt, Matthias Heyder, said at the 2010 Bamberg programme party convention:

What’s out there is a cold, concreted-over, anti-social system that is hostile to the Volk and it doesn’t need to be changed, it needs to be abolished.

[…]

(2) At the same time, the respondent sets the idea of the Volksgemeinschaft against the principle of democracy, thus relativising the latter’s claim to validity.

(a) This becomes clear when W., the former deputy president of the regional association of the Land of Bavaria, writes:

Rule by the Volk is put into practice more if a Volk is led in all areas of life by its most capable and most competent members than if it allows itself to be managed by a mere majority or by corrupt parliamentarians. […]

(b) […]

(c) In the journal Der Aktivist […], D. fundamentally challenges the claim of democracy and the majority principle to validity:

Democracy seems to have become a kind of religion for the people currently in power. […] However, the constant mantra-like repetition of the assertion that it is in fact the “best form of society” is just not tenable. […] There is no formula for the perfect form of the state; there is only the inner balance of the Volk with the state.

(d) Udo Pastörs emphasised at the NPD Swabian Day (Schwabentag) in Günzburg in 2011:

What lies ahead of us is the last stretch of a corrupt system that has to be abolished because it endangers the preservation of the Volk, dear friends.

(3) […]

(δ) Karl Richter writes in hier & jetzt (“here and now”, issue 15/2010, p. 4 et seq. <7>) under the headline ‘What did you mean, Mr Homer? Ithaka in Bottrop – Why the ‘Odyssey’ should in fact be banned’ (Wie meinten Sie das, Herr Homer? Ithaka in Bottrop – warum die ‘Odyssee’ eigentlich verboten gehört):

Anyone who got into bed with foreign rule must go, with no messing about; scum that has to be cleaned out, we want to prevent it rising up again – as the myth knows.

(c) The respondent, as its party programme makes clear, advocates replacing the existing political system with the “national state” as “[t]he political organisational form of a Volk” […]. In this connection, according to the information submitted by the respondent’s former party chairman and MEP Voigt in the oral hearing, there should be a return to the concept of the German Reich. This coincides with other statements which are attributable to the respondent.

(aa) Following Udo Voigt, Claus Cremer wrote in an online post on the homepage of the regional association of the Land of North Rhine-Westphalia in June 2011:

The Reich is our goal, the NPD our way.

(bb) Similarly, in 2011 Karl Richter and Eckart Bräuniger called for the (re)vival of a German Reich in Deutsche Stimme (“German Voice”, issue 2/2011, p. 22) […]:

Let us integrate the idea of the Reich into the themes and challenges of the present to secure the continued existence of what remains of the body of our Volk […]. Yes to Germany – yes to the Reich!

(cc) H., a former elected municipal council deputy from Lower Saxony called in the journal Volk in Bewegung – Der Reichsbote (“People in motion – Herald of the Reich”) not only for the re-establishment of the German Reichbut also for the reinstatement of the constitution and laws […] which were in force on 23 May 1945. […]:

[…]

3. The respondent is similar in nature to National Socialism. Its concept of the Volksgemeinschaft, its fundamentally anti-Semitic stance and its disparaging of the existing democratic order reveal clear parallels to National Socialism (a). In addition, its proclaimed identification with leading personalities of the NSDAP, the use of selected National Socialist vocabulary, texts, songs and symbols as well as revisionist statements with regard to history demonstrate an affinity of at least relevant parts of the respondent with the mind-set of National Socialism (b). […] Taken together, this confirms the respondent’s disrespect for the free democratic basic order (c).

a) aa) The term and the concept of the Volksgemeinschaft are a central feature which the political concepts of the respondent and the NSDAP have in common. […] Point 4 of the 25-point programme of the NSDAP read: “Only those who are members of the Volk (Volksgenossen) can be citizens of the state. Only those who are of German blood, regardless of religion, can be Volksgenossen. Therefore, no Jew can be a Volksgenosse.” Apart from the specific emphasis on the exclusion of Jewish people, this definition corresponds exactly to the respondent’s ideas.

[…]

bb) Clearly, the respondent and the NSDAP also share a fundamentally anti-Semitic stance. […]

cc) Finally, the rejection and disparaging of parliamentary democracy is a further feature shared by the respondent and National Socialism. […]

b) Affinity with National Socialism is also expressed in various ways in the actions of the respondent:

aa) These include […] references by leading representatives of the respondent glorifying protagonists of the Nazi regime:

(1) As Thomas Wulff, former deputy chairman of the regional association of the Land of Hamburg, put it in a statement on the website www.altermediadeutschland.info on Hitler’s birthday, 20 April 2013:

May this party conference on the weekend of 20 April remind one or two delegates like a flash of lightning what the greatest son of our Volk […] was able to do. He was able to do it because, committing his whole person and acting completely selflessly, incorruptible and prepared to make every personal sacrifice, he became the embodiment of the hope of millions! […]

[…]

bb) The link with the National Socialist past is also clear from the use of National Socialist vocabulary, texts, songs and symbols.

(1) […]

(2) Jürgen Gansel entitled his Facebook post on 12 January 2015 ‘People, rise up!’, words used by Goebbels in his […] Sportpalast speech on 18 February 1943. The Brandenburg JN, too, in their Facebook post on 28 November 2014 used the wording “Das Volk steht auf, der Sturm bricht los” (The people rise, the storm breaks loose), which originally came from the poem ‘Männer und Buben’ (Men and Boys) by Theodor Körner.

(3) […] cc) Furthermore, it is clear that leading representatives of the respondent are endeavouring to glorify National Socialism and to relativise its crimes.

[…]

(4) In a press statement by the respondent dated 18 January 2010, Karl Richter stated that the national opposition would not “accept” the […] 65th anniversary of the liberation of Auschwitz as a “ritual permanent stigmatisation of the German as a people of perpetrators (Tätervolk)”:

For the Holocaust has many facets and includes those burned to death and murdered in Dresden and Hiroshima […]. […]

(5) […] In the Landtag of Saxony, Jürgen Gansel diagnosed “historical pornography in the shape of Holocaust memorial rituals and other forms of national masochism” […]. Udo Pastörs spoke in the Landtag of Mecklenburg-Western Pomerania of a “onesided cult of guilt” and “Auschwitz projections” […]. In the same place Tino Müller stated:

You are lying to our young people by hiding the fact that it was not the German Reich that declared war on Great Britain and France, but the British and French who declared war on us. […]

Holger Apfel stated in the Landtag of Saxony:

66 years after the end of the Second World War there must finally be an end to our Volk being beaten into servitude with the club of Auschwitz. 66 years after the end of the Second World War it is finally time to take off the sinner’s hair shirt and the dunce’s cap. The desk for tickets to Canossa, […] should be closed once and for all. […]

The then members of the respondent’s parliamentary group in the Landtag of Mecklenburg-Western Pomerania demonstratively absented themselves from a minute of silence to commemorate the victims of National Socialism on 30 January 2013.

c) The […] evidence […] documents to a sufficient degree – without there being any need for recourse to the expert opinion by the Institute of Contemporary History (Institut für Zeitgeschichte) submitted by the applicant – the links in terms of content between relevant parts of the respondent and historical National Socialism.

The former federal chairman of the respondent, Holger Apfel, also confirmed this in the oral hearing and drew attention to the fact that “at least some party members still find themselves in many points in the world of the political ideas of the Third Reich”. The former Hamburg Land chairman Wulff, he said, openly professes to be a National Socialist. According to Mr Apfel, proceedings to exclude Mr Wulff from the party failed.

It may be presumed from all of this that a similarity in nature exists between the respondent and National Socialism. […]

[…]

At the same time, this confirms the disparaging by the respondent of the free democratic basic order. […]

4. […]

II.

What precludes a prohibition of the respondent, however, is the fact that the criterion of “seeking” (darauf ausgehen) within the meaning of Art. 21(2) first sentence GG is not met. While the respondent does indeed advocate aims which are directed against the free democratic basic order and although it systematically acts […] towards achieving those aims […] (1.), there are no specific and weighty indications suggesting even at least the possibility that these endeavours […] might be successful (2.).

1. The respondent works […] in a systematic manner towards the realisation of its anticonstitutional aims (c).

a) aa) The respondent has a nationwide organisational structure. […]

The respondent’s financial report for 2013 shows that the respondent had 5,048 members […] as of 31 December 2013.

The respondent attempts to prepare its adherents for the political struggle by means of training courses and similar measures. […]

bb) The respondent is represented in the European Parliament by one member. It has no members in the Bundestag or in any federal state parliament. Some 350 members of local representative bodies […] are members of the respondent. […]

cc) The respondent’s public relations work uses the entire spectrum of media opportunities. […]

[…]

b) The basis of the respondent’s political work is a self-contained strategic concept, which it describes as its “four pillar strategy” […].

c) The respondent systematically attempts to put these strategic goals into practice […].

aa) (1) Within the framework of the first pillar of this strategy (“Fight for Hearts and Minds”), it endeavours to enhance its public acceptance by means of “nationalrevolutionary grass-roots work” […]. The political message is not the primary factor here. […]

[…]

bb) The aim of the “Fight for the Street” is the dissemination and implementation of the respondent’s ideology. For this, it uses its media opportunities, election campaigns and – where it has one – its parliamentary presence. Beyond this, the respondent attempts to influence the formation of political opinion with […] high-profile public activities […].

(1) The respondent endeavours to address potential voters and sympathisers at an early age by using materials specifically aimed at young people […].

[…]

(2) The main focus of the respondent’s publicity activities is on the topic of asylum. […]

(a) (aa) According to the applicant’s submission, which remained uncontested, the respondent held a total of 192 events in 2015 which were directly attributable to it with more than 20 people attending each event and 23,000 people attending in total. In the view of the applicant, a further 95 events must be added to this, with a total of 20,000 people attending, since in particular rallies by MVGIDA and THÜGIDA [translator’s note: two regionally active anti-Islam organisations, both of which are offshoots of PEGIDA – Patriotische Europäer gegen die Islamisierung des Abendlandes, Patriotic Europeans against the Islamisation of the Occident] are heavily influenced by the respondent.

[…]

(4) The attempt to disseminate the respondent’s political ideology takes place on the basis of what is known as the “strategy of taking the floor” (Wortergreifungsstrategie) […] in direct confrontation with political competitors. […]

cc) The respondent also uses the “Fight for the Parliaments” to strive for its anticonstitutional aims and work towards their realisation in election campaigns and parliamentary work. […]

[…]

dd) The respondent’s “Fight for the Organised Will” involves striving, on the basis of existing personal interconnections (1), to form a “comprehensive national opposition movement” under its own leadership (2). This uses co-operations with various different regional constellations of the extreme right-wing scene which is not affiliated with the NPD and preparedness to integrate members of this scene into the respondent who wish to join it (3). At the same time it seeks to collaborate with and influence the movements directed against an alleged “Islamisation of the Occident” (4).

(1) A considerable number of persons at the respondent’s executive levels used to be members of banned extreme right-wing organisations. […]

[…]

2. Even though all this shows that the respondent is committed to its anticonstitutional aims and is systematically working towards achieving them, its actions do not amount to a fight against the free democratic basic order in the sense of “seeking” (Art. 21(2) first sentence GG). There are no sufficiently weighty indications suggesting that it will succeed in achieving its anti-constitutional aims. […]

a) […]

aa) Currently, parliamentary majorities enabling the respondent to impose its political concept are achievable neither through elections nor by means of forming coalitions.

(1) At a supra-regional level, it has just one MEP in the European Parliament. […]

Election results in European Parliament and Bundestag elections are stagnating at a very low level. In the last Bundestag election in 2013 the respondent […] gained 1.3 % of the valid second votes cast. […] In the 2014 European Parliament election it gained 1 % of the valid votes cast […].

In the former West German federal states, the respondent’s election results varied at the last Landtag elections between 1.2 % (Saarland) and 0.2 % (Bremen) of the valid votes cast. Although the level was already low, it suffered further losses of votes in the Landtag elections in 2016 […].

There has also been a decline in the respondent’s election results, albeit from a higher starting level, in Landtag elections in the former East German federal states. […] In Mecklenburg-Western Pomerania the respondent gained 7.3 % of the valid votes cast in the 2006 Landtag election, 6.0 % in the 2011 Landtag election and just 3.0 % in the 2016 Landtag election.

In the more than five decades of its existence, the respondent has not been able to gain representation in any federal state parliament on a permanent basis. There are no indications that this development will change in the future. In addition, the other political parties represented in the parliaments […] have hitherto not been prepared to enter into coalitions or even ad hoc co-operations with the respondent. […]

(2) Nor is the situation different at municipal level. Even though the respondent has more than 350 seats in local representative bodies throughout Germany […], it is very far from having the ability to influence the shaping of relevant policy. This is confirmed by the fact that the respondent’s seats amount to around just one-thousandth of the estimated total number of more than 200,000 seats at municipal level.

Nor does a consideration on a case-by-case basis yield any different assessment […].

[…] This is the case even when considering the municipalities upon which the applicant has laid particular emphasis, and in which the respondent gained a disproportionately high share of up to 27.2 % of the valid votes cast […] in the 2014 local government elections […].

The vast majority of the municipalities cited has a small number, in four digits, some even in just three digits […], of inhabitants which means that the high results in these individual cases were not sufficient even for one seat for the respondent in the respective municipal councils. […] At the relevant district level, the respondent did not gain more than 7 % of the votes in 2014 anywhere. […]

[…]

Thus, the respondent has no policy-shaping majorities of its own in the municipal parliaments of the former East German federal states. […] Moreover, it has just as few coalition options there as in the former West German federal states. […]

bb) There are likewise no specific and weighty indications suggesting that the respondent will succeed in achieving its aim of abolishing the free democratic basic order by democratic means outside the parliamentary level. […]

(1) Compared with its highest level of 28,000 in 1969, the respondent’s membership numbers have clearly declined. […] Neither the respondent’s merger with the German People’s Union (DVU) nor opening itself up to the neo-Nazi scene and the formation of its own regional associations in the former East German federal states have been able to put a permanent halt to the decline in membership. […] With a total of fewer than 6,000 members, the respondent’s possibilities for action are limited significantly.

(2) […]

(a) The Federation’s Annual Report on the Protection of the Constitution (Verfassungsschutzbericht) for 2014 shows the respondent to be in a state of sustained crisis. Although it is still the most effective extreme right-wing political party, the report finds that it is suffering from internal strife, declining membership numbers, unsolved strategic issues, financial problems and the pending prohibition proceedings […].

[…]

(aa) In this connection, the expert witness Prof. Jesse submitted his opinion in the oral hearing that the respondent is an isolated, ostracised political party whose campaign capability, such as it is, has declined in recent years. The expert witness Prof. Kailitz, too, stated in the oral hearing that the respondent is at present unable to reach the centre of society. […] In the oral hearing the former party chairman of the respondent, Holger Apfel, said that the respondent has always been accorded an importance in public perception which has not matched the reality. He said that taboobreaking had been deliberately staged in the parliaments in order […] to give the impression of an effective and professional organisation.

(bb) The finding of a low level of effectiveness in society […] is confirmed by reports of the constitutional protection authorities of the Federation and the federal states. All annual reports on the protection of the Constitution by the former West German federal states consistently show that attendance figures for the respondent’s events are following a downward trend with numbers below three digits, while the number of counter-demonstrators has often been very much higher […]. In the former East German federal states, it is also found that, apart from the respondent’s anti-asylum campaigns (cf. para. 924 et seq.), the respondent’s members frequently have only themselves for company at their events […].

[…]

(3) Nor is the respondent able to compensate in other ways for its structural deficits and low level of effectiveness in society. […]

[…]

(c) This is also the case […] to the extent that the respondent concentrates on activities directed against asylum seekers and minorities as part of its ‘Fight for the Street’. […]

[…] While the respondent does indeed try to instrumentalise the refugee and asylum problems for its own purposes, it frequently acts not in its own name but under the umbrella of apparently neutral organisations […]. When, on the other hand, it becomes evident that it is the respondent that is responsible for the event, attendance significantly declines. The applicant has itself submitted that the attendance figures at MVGIDA events declined from around 600 to 120 […] once the dominance of the respondent became evident. It was similar with the ‘Schneeberger Lichtelläufen’ event series directed against a local home for asylum seekers. While more than 1,500 people attended the first three events […] only some 250 participants, most of them belonging to the respondent and its entourage, could be mobilised for the fourth event on 25 January 2014, for which the respondent took a more prominent, offensive stance as an organiser […]. This documents the fact that the anti-asylum initiatives by the respondent have in individual cases been very successful in mobilising attendees. It is, [however], not discernible that this means that its social acceptance is increasing and that it will be able to assert its anti-constitutional aims through the process of forming the political will by democratic means. […]

(d) Finally, it does not seem likely that the respondent will be able to strengthen its impact by co-operating with forces which are not affiliated with it. […]

(aa) […]

[…] On the contrary, the respondent has been unable to achieve a “concentration of all national-minded forces” under its leadership. Its co-operation with unaffiliated forces takes place on an ad hoc basis without any firm organisational foundation. The respondent is not accorded a leading role. […]

[…] In the expert report by Prof. Borstel submitted by the applicant, co-operative ventures with extreme right-wing movements have been assessed as being existential for the respondent. Prof. Borstel reports, however, that these co-operations are temporary and on a regional basis, and that any permanent integration of the neoNazi groups and ‘free’ networks would run counter to the self-perception of these groups as extra-parliamentary resistance groups […].

[…]

b) [Finally, there are] no specific and weighty indications suggesting that the respondent exceeds […] the boundaries of admissible political struggle of opinions in a manner that would satisfy the constituent element of “seeking”. […]

aa) It is not discernible that the respondent is capable of asserting to a relevant degree its claims for territorial dominance in a manner which excludes equal participation in the formation of the political will. There are no “national liberated zones” (1). […]

(1) Contrary to its original assertion, the applicant admitted [this] in its brief of 27 August 2015 […].

(2) In this connection, the tiny village of Jamel constitutes a special case, which can-

not be generalised. […]

[…]

The gaining of a majority in the village by right-wing extremists is reflected in the villagescape. […]

[…]

There is no doubt that Jamel is a village permeated with extreme right-wing ideas. This is, however, a singular [case] that is limited to a few persons. As the expert witness Prof. Jesse has confirmed in the oral hearing, this situation cannot be transferred to other places, particularly not larger villages or towns. […]

(3) Other examples of successful implementation of the respondent’s claims for territorial dominance were not identified.

(a) Contrary to the applicant’s opinion, it cannot be assumed that the Hanseatic city of Anklam […] is a zone of cultural hegemony of the respondent. […]

(aa) The applicant’s reference in this context to a […] property which, as a “nationalist meeting centre” […] serves as a venue for right-wing extremists across the country […] cannot be taken as evidence of the assertion of claims to dominance. […]

(bb) Nor is the carrying out of a demonstration on 31 July 2010 under the title of “Gegen kinderfeindliche Bonzen […]” (Against Child-Hating Bigwigs) called jointly by the respondent and the organisations Nationale Sozialisten Mecklenburg (Mecklenburg National Socialists) and Freies Pommern (Free Pomerania) evidence of the respondent’s dominance in Anklam. […]

[…]

(cc) Furthermore, the suggestion that the respondent has a dominant position in Anklam is also refuted by the fact that in the 2014 municipal council election the respondent won merely 9.3 % of the valid votes cast and accordingly took only two of the 25 municipal council seats there. There are, moreover, several active anti-right-wing extremism initiatives in Anklam. […]

(b) The same holds for Lübtheen, which the applicant has portrayed as a further example of a zone of domination […]. The fact that several leading functionaries of the respondent […] live and are active in Lübtheen, and possibly moved there deliberately, is not sufficient for the presumption of a situation of dominance. The same applies to the extent that the respondent uses a property prominently located in the town centre and that its representatives are present at events, even ones directed against right-wing extremism.

[…]

[…] Here, too, the fact that the respondent won 10.7 % of the valid votes cast in the 2014 municipal election and accordingly took only two of the 17 seats in the municipal council is evidence against the respondent’s dominance. Apart from that, the applicant itself admits that the respondent would not be able to realise fully its claim to dominance, not least due to the citizens’ initiative against right-wing extremism initiated by the mayoress. […]

(c) […]

bb) Nor are there sufficient indications that there is a fundamental tendency of the respondent to assert its anti-constitutional aims by violent means or by committing criminal offences. […]

(1) While the applicant refers […] to the fact that the number of attacks on homes for asylum seekers peaked in 2015 with 1,031 criminal offences (177 of them crimes of violence) being committed, this cannot be attributed to the respondent. […] It is not sufficient in this regard for the respondent to be involved in creating a climate of hostility to foreigners with its inhuman agitation. […] This cannot be simply taken on its own to prove that it regards attacks on refugee homes as a means likely to aid the achieving of its ends or that it approves of them in any other way. […]

(2) Contrary to the applicant’s view, it cannot be inferred from the general lack of law-abiding behaviour on the part of its adherents that the respondent is prepared to use force or commit crimes to achieve its […] aims. […]

(a) In this connection, the anonymised statistics by the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) submitted by the applicant regarding delinquency of the respondent’s executive committee members cannot be used to support the applicant’s view […].

(b) This is not altered by the fact that the applicant has reacted to the notice as to inadmissibility as evidence and submitted a list of 57 criminal convictions of the respondent’s functionaries in total. A large number of these convictions had […] no political background […]. A political background is at least doubtful in the case of a number of other criminal offences. […] Moreover, the convictions cover a period of 25 years, largely concern purely propaganda offences and predominantly involve petty crime, with some being for offences committed as juveniles. The number, subject and severity of the criminal offences on the list committed by individual members of the respondent are not sufficient […] to accuse it of having the intention of asserting its political aims by using force or by committing crimes.

(3) Nor are the events and facts set out in detail by the applicant sufficient for an inference that the respondent is prepared to use force or fails to obey the law such that the constituent element of “seeking” within the meaning of Art. 21(2) first sentence

GG is met. […]

[…]

(b) The violent assaults and other criminal offences described by the applicant cannot be unreservedly attributed to the respondent.

(aa) Since the perpetrators who caused the arson attacks on the barn in Jamel and on a sports hall in Nauen planned as emergency accommodation for asylum seekers have not yet been identified […], these occurrences cannot be taken into consideration. The same applies to the damaging and removal of posters in the run-up to the demonstration in Anklam on 31 July 2010 [and the damage to property and threatening of the director of a socio-cultural meeting place in Güstrow].

Nor can any involvement by the respondent be established in the spraying […] in Demmin on 19 August 2010 and in Ueckermünde on 20 August 2010 of so-called “Stolpersteine” [translator’s note: “stumbling blocks” – small, square plaques set into pavements] which had been placed to commemorate Jewish fellow citizens. The posters simultaneously pasted up in Ueckermünde suggest rather that this was an act carried out by an extreme right-wing movement […].

Similarly, the riots in Leipzig-Connewitz on 11 January 2016 cannot be attributed to the respondent.

(bb) The riots in Dresden on 24 July 2015 and Heidenau on 21 August 2015 following demonstrations by the respondent cannot be attributed to the respondent.

(α) The demonstration […] organised in Dresden […] was notified to the authorities by a member of the respondent and advertised as an event of the party. […] Violent clashes took place following this demonstration […].

[…] There is, however, nothing to show that the respondent incited these clashes or contributed to them in any other way. […]

(β) The same applies to the riot which took place following the respondent’s protest rally in Heidenau on 21 August 2015 […].

(cc) Attacks on constituency offices of other political parties in MecklenburgWestern Pomerania cannot be attributed to the respondent, either. Since the perpetrators of these attacks have not been identified, members or adherents of the respondent cannot be accused of being involved in carrying out these attacks. Nor can it be established that the respondent supported these attacks or took credit for them.

[…]

(c) Therefore, what remains is merely a small number of acts of violence involving members and adherents of the respondent (aa), which are not, however, sufficient to prove that it has a fundamental tendency to assert its anti-constitutional intentions by violent means or by committing criminal offences (bb).

(aa) (α) These include the assault by JN functionaries on a rally by the German Association of Trade Unions (Deutsche Gewerkschaftsbund – DGB) in Weimar on 1 May 2015. […]

[…]

(β) Moreover, a total of twelve convictions have been handed down to members and adherents of the respondent for policy-related violent offences. […]

(γ) The applicant also refers to […] two assaults on counter-demonstrators at events held by the respondent in Lingen and Aschaffenburg in 2013. In the oral hearing, the third-party expert Röpke also reported on further acts of violence by security staff. […]

[…]

(bb) […] Including the events described by the applicant and the third-party witness Röpke, this involves a total of 20 independent offences over a period of more than ten years. The vast majority of these cases does not involve the planned and deliberate use of force to assert political aims, but rather incidental scuffles at the margin of or leading up to political events […] A fundamental tendency of the respondent to assert its political aims by violent means or by committing criminal offences cannot (yet) be inferred from the individual cases which have been described.

cc) Nor can it be established that the respondent’s actions lead to an atmosphere of fear that is likely to undermine the right to free and equal participation in the formation of the political will. […]

(1) (a) The list submitted by the applicant with freely-given information on threat experiences (Liste mit freien Angaben zu Bedrohungserfahrungen) drawn up by the psychologist Anette Hiemisch cannot be referred to as evidence establishing the creation of an atmosphere of fear by the respondent. […] This list […] does not show which organisations are the source of the threats in question, nor are dates, places or involved persons specified in detail. […]

(b) The Senate cannot concur with the applicant’s opinion that threats and intimidations by members of comradeships and other neo-Nazi groups can generally be attributed to the respondent. […] Comradeships and other neo-Nazi groups act autonomously and do not represent themselves as an “extended arm” of the respondent. […]

(c) […]

(d) Nor can the events following a demonstration organised in October 2013 by the citizens’ initiative Schneeberg wehrt sich (Schneeberg defends itself) be attributed to the respondent. […] After this demonstration, 30 to 50 attendees at the event carrying lit torches drew up outside the mayor’s private house. […] There is no indication that the respondent instigated these events or supported them in any other way. […]

(e) […]

(2) […]

(a) Mere participation by the respondent in the battle of political opinions must […] remain outside the scope of consideration. As long as it does not exceed the boundaries of what is permissible in democratic discourse, this does not result in any limiting of third parties in the exercise of their democratic rights, regardless of any other motives the respondent may have and the subjective feelings of individuals concerned.

(aa) […]

(bb) With regard to the resignation of the mayor of Tröglitz, it appears doubtful whether the boundaries of the permissible battle of political opinions […] were exceeded. […]

Even though the mayor of Tröglitz may have subjectively felt the planned march of the demonstration announced by the NPD district council member T. past his house to be a threat to himself and his family, merely marching as announced along an approved route […] does not yet in itself constitute an interference with the process of free and equal participation in the formation of the political will.

(cc) [T]he protests against the use of the Spreehotel in Bautzen do not yet exceed the permissible boundaries of the battle of political opinions. […]

(dd) The same applies to the protest and call for a demonstration against the mosque in Leipzig-Gohlis with the motto Maria statt Scharia! (Mary, not sharia!) […]”.

(b) It may be the case that other activities by the respondent have exceeded the permissible boundaries of the battle of political opinions […]. Nevertheless, it cannot be inferred from individual cases that they are objectively likely to bring about an […] atmosphere of fear which stands in the way of the exercise of democratic rights.

[This is the case with regard to individual election campaign activities by the re- 992-1000 spondent and visits to refugee homes and the rally directed by the respondent’s Berlin-Pankow district association against the Pankow borough mayor K. and the occurrences between 2007 and 2009 in Schöneiche near Berlin described by the applicant.]

(d) Finally, the respondent’s activities with regard to forming militias and undertaking patrols are not objectively sufficient to amount to a creation of an atmosphere of fear, since, as far as is evident, lawful limits have not been exceeded and there has been no impermissible interference with the rights of third parties. […]

(3) Moreover, to the extent that individual situations remain in which a potential threat exists or at least cannot be ruled out which may undermine the freedom of formation of the political will (a), this is not sufficient to infer that the respondent has a fundamental tendency to pursue its political aims by creating an atmosphere of fear (b).

[…]

(b) […] Like crimes which have been committed, the action of individual members of 1007 the respondent against the director of the multi-cultural meeting centre in Güstrow and against the mayor of Lalendorf are individual occurrences which cannot in a generalised way be laid at the door of the respondent. The same also holds for the references to the conduct of the respondent’s security staff. The factual situations which have been described are not yet enough to justify the ordering of the prohibition of the party. […]

dd) The Senate is not overlooking the fact that affected persons may feel that their constitutionally-guaranteed freedom of expression and action are seriously and sustainably undermined by behaviour of members or adherents of the respondent which is intimidating and deliberately provocative or crosses the boundary to criminality. The evidence presented in the oral hearing does not, however, show that the extent, intensity and density of such occurrences reaches the threshold for the prohibition of a political party determined by Art. 21(2) GG […], which is high for the reasons set out above (cf. para. 523 et seq.). Intimidation and threats, as well as the building-up of potentials for violence, must be countered thoroughly and in due time with the means of preventive police law and repressive criminal law in order to effectively protect the freedom of formation of the political will as well as individuals affected by the respondent’s behaviour.

E.

The decision not to allow reimbursement of necessary expenses to the respondent is based on § 34a(3) BVerfGG. […] While the proceedings have not resulted in the unconstitutionality of the respondent being established, there were, contrary to the respondent’s opinion, neither insurmountable procedural obstacles nor any other admissibility requirements standing in the way of the proceedings. The substantive facts in the proceedings showed that the respondent acts in a systematic manner to abolish the free democratic basic order and that all that is lacking to qualify its actions as “seeking” within the meaning of Art. 21(2) first sentence GG is the lack of potentiality. For this reason, reimbursement of costs is not appropriate, despite the ultimate lack of success of the application to prohibit it.

F.

The decision is unanimous.

Voßkuhle   Huber   Hermanns

Müller   Kessal-Wulf   König

Maidowski

Bundesverfassungsgericht, Urteil des Zweiten Senats vom 17. Januar 2017 –

2 BvB 1/13

Zitiervorschlag 

BVerfG, Urteil des Zweiten Senats vom 17. Januar 2017 – 2 BvB 1/13 – Rn. (1 – 1010), http://www.bverfg.de/e/bs20170117_2bvb000113en.html

ECLI

ECLI:DE:BVerfG:2017:bs20170117.2bvb000113

Judgment of 21 June 2016 – 2 BvR 2728/13, 2 BvR 2729/13, 2 BvR 2730/13, 2 BvR 2731/13, 2 BvE 13/13

If the conditions formulated by the Court of Justice of the European Union in its judgment of 16 June 2015 (C-62/14) and intended to limit the scope of the OMT programme are met, the complainants’ rights under Art. 38 sec. 1 sentence 1, Art. 20 secs. 1 and 2 in conjunction with Art. 79 sec. 3 of the Basic Law (Grundgesetz – GG) are not violated by the fact that the Federal Government and the Bundestag have not taken suitable steps to revoke or limit the effect of the policy decision of the European Central Bank of 6 September 2012 concerning the OMT programme. Furthermore, if these conditions are met, the OMT programme does not currently impair the Bundestag’s overall budgetary responsibility. Such was the decision of the Second Senate of the Federal Constitutional Court in a judgment pronounced today. If interpreted in accordance with the Court of Justice’s judgment, the policy decision on the OMT programme does not “manifestly” exceed the competences attributed to the European Central Bank. Moreover, if interpreted in accordance with the Court of Justice’s judgment, the OMT programme does not present a constitutionally relevant threat to the German Bundestag’s right to decide on the budget.

Facts of the Case:

The constitutional complaints and the application for Organstreit proceedings [proceedings relating to disputes between constitutional organs] challenge two programmes aimed at the purchase of government bonds of Member States of the Euro zone on the secondary market by the European System of Central Banks (“ESCB”).
For further information please refer to press releases nos. 29/2013 of 19 April 2013 (available in German), 9/2014 of 7 February 2014, and 3/2016 of 15 January 2016.

Key Considerations of the Senate:

1. The constitutional complaints and the Organstreit proceedings are partially inadmissible. In particular, the constitutional complaints are inadmissible to the extent that they directly challenge acts of the European Central Bank. To that extent those acts cannot be challenged before the Bundesverfassungsgericht(German Federal Constitutional Court).

2. To the extent that the constitutional complaints and the application for Organstreit proceedings are admissible, they are unfounded.

a) By empowering the Federation to transfer sovereign powers to the European Union (Art. 23 sec. 1 sentence 2 GG), the Basic Law also accepts a precedence of application of European Union law (Anwendungsvorrang des Unionsrechts). The legislature deciding on European integration matters may not only exempt institutions, bodies, offices and agencies of the European Union from being comprehensively bound by the guarantees of the Basic Law but also German entities that implement European Union law.

However, the precedence of application of European Union law only extends as far as the Basic Law and the relevant Act of Approval permit or envisage the transfer of sovereign powers. Therefore, limits for the opening of German statehood derive from the constitutional identity of the Basic Law guaranteed by Art. 79 sec. 3 GG and from the European integration agenda (Integrationsprogramm), which is laid down in the Act of Approval and vests European Union law with the necessary democratic legitimacy for Germany.

b) The fundamental elements of the principle of democracy (Art. 20 secs. 1 and 2 GG) are part of the constitutional identity of the Basic Law, which has been declared to be beyond the reach both of constitutional amendment (Art. 79 sec. 3 GG) and European integration (Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG). Therefore, the legitimacy given to state authority by elections may not be depleted by transfers of powers and tasks to the European level. Thus, the principle of sovereignty of the people (Volkssouveränität) (Art. 20 sec. 2 sentence 1 GG) is violated if institutions, bodies, offices and agencies of the European Union that are not adequately democratically legitimised through the European integration agenda laid down in the Act of Approval exercise public authority.

c) When conducting its identity review, the Federal Constitutional Court examines whether the principles declared by Art. 79 sec. 3 GG to be inviolable are affected by transfers of sovereign powers by the German legislature or by acts of institutions, bodies, offices and agencies of the European Union. This concerns the protection of the fundamental rights’ core of human dignity (Art. 1 GG) as well as the fundamental principles that characterise the principles of democracy, of the rule of law, of the social state, and of the federal state within the meaning of Art. 20 GG.

When conducting its ultra vires review, the Federal Constitutional Court (merely) examines whether acts of institutions, bodies, offices and agencies of the European Union are covered by the European integration agenda (Art. 23 sec. 2 sentence 2 GG), and thus by the precedence of application of European Union law. Finding an act to be ultra vires requires – irrespective of the area concerned – that it manifestly exceed the competences transferred to the European Union.

d) Similar to the duties to protect (Schutzpflichten) mandated by the fundamental rights, the re-sponsibility with respect to European integration (Integrationsverantwortung) requires the constitutional organs to protect and promote the citizens’ rights protected by Art. 38 sec. 1 sentence 1 in conjunction with Art. 20 sec. 2 sentence 1 GG if the citizens are not themselves able to ensure the integrity of their rights. Therefore, the constitutional organs’ obligation to fulfil their responsibility with respect to European integration is paralleled by a right of the voters enshrined in Art. 38 sec. 1 sentence 1 GG. This right requires the constitutional organs to ensure that the drop in influence (Einflussknick) and the restrictions on the voters’ “right to democracy” that come with the implementation of the European integration agenda do not extend further than is justified by the transfer of sovereign powers to the European Union.

In principle, duties to protect are violated only if no protective measures are taken at all, if measures taken are manifestly unsuitable or completely inadequate, or if they fall considerably short of the protection’s aim. This means for the responsibility with respect to European integration (Integrationsverantwortung) that, if institutions, bodies, offices and agencies of the European Union exceed their competences in a manifest and structurally relevant manner or violate the constitutional identity in other ways, the constitutional organs must actively work towards respect of the European integration agenda. They may – within the scope of their competences – be required to use legal or political means to work towards revocation of measures that are not covered by the European integration agenda as well as – as long as the measures continue to have effect – to take suitable measures to restrict the national effects of such measures as far as possible. Just like the duties of protection inherent in fundamental rights, the responsibility with respect to European integration (Integrationsverantwortung) may in certain legal and factual circumstances concretise in such a way that a specific duty to act results from it.

3. According to these standards and if the conditions listed below are met, the inaction on the part of the Federal Government and of the Bundestag with regard to the policy decision of the European Central Bank of 6 September 2012 does not violate the complainants’ rights under Art. 38 sec. 1 sentence 1, Art. 20 secs. 1 and 2 in conjunction with Art. 79 sec. 3. Furthermore, the Bundestag’s rights and obligations with regard to European integration (Integrationsverantwortung) – including its overall budgetary responsibility – are not impaired.

a) The Federal Constitutional Court bases its review on the interpretation of the OMT decision formulated by the Court of Justice in its judgment of 16 June 2015. The Court of Justice’s finding that the policy decision on the OMT programme is within the bounds of the respective competences and does not violate the prohibition of monetary financing of the budget still remains within the mandate of the Court of Justice (Art. 19 sec. 1 sentence 2 TEU).

The Court of Justice bases its view to a large extent on the objectives of the OMT programme as indicated by the European Central Bank, on the means employed to achieve those objectives, and on the programme’s effects on economic policy, which – according to the Court of Justice – are only indirect in nature. It bases its review not only on the policy decision of 6 September 2012 concerning the technical details, but derives further framework conditions – in particular from the principle of proportionality –, which set binding limits for any implementation of the OMT programme. Furthermore, the Court of Justice affirms that acts of the European Central Bank are not exempt from judicial review, in particular regarding whether the principles of conferral and proportionality are complied with.

b) Nevertheless, the manner of judicial specification of the Treaty (Treaty on the Functioning of the European Union) evidenced in the judgment of 16 June 2015 meets with serious objections on the part of the Senate. These objections concern the way the facts of the case were established, the way the principle of conferral was discussed, and the way the judicial review of acts of the European Central Bank that relate to the definition of its mandate was conducted.

Firstly, the Court of Justice accepts the assertion that the OMT programme pursues a monetary policy objective without questioning or at least discussing and individually reviewing the soundness of the underlying factual assumptions, and without testing these assumptions with regard to the indications that evidently argue against a character of monetary policy.

Furthermore, – despite its own belief that economic and monetary policy overlap – the Court of Justice essentially relies on the objectives of the measure as indicated by the organ on review as well as on the recourse to the instrument of the purchase of government bonds enshrined in Art. 18 of the ESCB Statute when qualifying the OMT programme as an instrument belonging to the field of monetary policy.

Lastly, the Court of Justice provides no answer to the following issue: that the independence granted to the European Central Bank leads to a noticeable reduction in the level of democratic legitimation of its actions and should therefore give rise to restrictive interpretation and to particularly strict judicial review of the mandate of the European Central Bank. This holds all the more true if the principles of democracy and sovereignty of the people (Volkssouveränität) are affected – and thereby the constitutional identity of a Member State, which the European Union is required to respect.

c) Despite these concerns, if interpreted in accordance with the Court of Justice’s judgment, the policy decision on the OMT programme does not – within the meaning of the competence retained by the Federal Constitutional Court to review ultra vires acts – “manifestly” exceeds the competences attributed to the European Central Bank. Although – unlike the Senate – the Court of Justice does not question the indicated objectives and evaluates each of the signs that the Sen-ate holds to argue against the alleged objectives in an isolated manner instead of performing an overall evaluation, this is acceptable because on the level of the exercise of competences the Court of Justice has essentially performed the restrictive interpretation of the policy decision that the Senate’s request for a preliminary ruling of 14 January 2014 held to be possible.

The Court of Justice differentiates between the policy decision of 6 September 2012 on the one hand and the implementation of the programme on the other. With a view to the proportionality of the OMT programme and the fulfilment of the obligations to state reasons, it specifies additional compelling restrictions that apply to any implementation of the OMT programme and exceed the framework conditions indicated in the policy decision. Against this backdrop, one must assume that the Court of Justice considers the conditions it specified to be legally binding. In using procedural means to limit the ECB’s competences by reviewing whether the principle of proportionality has been observed, the Court of Justice takes up the issue of the nearly unlimited potential of the decision of 6 September 2012. The restrictive parameters developed by the Court of Justice do not completely remove the character of the OMT programme insofar as it encroaches upon economic policy. However, together with the conditions prescribed by the decision of 6 September 2012 – in particular the participation of Member States in adjustment programmes, Member States’ access to the bond market, and the focus on bonds with a short maturity – they make it appear acceptable to assume that the character of the OMT programme is at least to the largest extent monetary in kind.

d) If interpreted in accordance with the Court of Justice’s judgment, the policy decision on the technical framework conditions of the OMT programme as well as its possible implementation also do not manifestly violate the prohibition of monetary financing of the budget. Although the Court of Justice considers the policy decision to be permissible even without further specifications, its implementation must fulfil further conditions in order for the purchase programme to not violate Union law. Thusly interpreted, and when comprehensively assessed and evaluated, the OMT programme fulfils the requirements formulated by the Senate’s order of 14 January 2014 requesting a preliminary ruling by the Court of Justice.

e) Since, against this backdrop, the OMT programme constitutes an ultra viresact if the framework conditions defined by the Court of Justice are not met, the German Bundesbank may only participate in the programme’s implementation if and to the extent that the prerequisites defined by the Court of Justice are met; i.e. if

• purchases are not announced,

• the volume of the purchases is limited from the outset,

• there is a minimum period between the issue of the government bonds and their purchase by the ESCB that is defined from the outset and prevents the issuing conditions from being distorted,

• the ESCB purchases only government bonds of Member States that have bond market access enabling the funding of such bonds,

• purchased bonds are only in exceptional cases held until maturity and

• purchases are restricted or ceased and purchased bonds are remarketed should continuing the intervention become unnecessary.

f) Their responsibility with respect to European integration does not require the Federal Government and the Bundestag to take action against the OMT programme in order to protect the overall budgetary responsibility of the Bundestag. If interpreted in accordance with the Court of Justice’s judgment, the OMT programme does not present a constitutionally relevant threat to the Bundestag’s right to decide on the budget. Therefore, it can currently also not be established that implementation of the OMT programme would pose a threat to the overall budgetary responsibility.

g) However, due to their responsibility with respect to European integration (Integrationsverantwortung), the Federal Government and the Bundestag are under a duty to closely monitor any implementation of the OMT programme. This compulsory monitoring shall determine not only whether the abovementioned conditions are met, but also whether there is a specific threat to the federal budget – deriving in particular from the volume and the risk structure of the purchased bonds, which may change even after their purchase.

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The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Judgement of 20 April 2016 – 1 BvR 966/09, 1 BvR 1140/09

In its judgment rendered today, the First Senate of the Federal Constitutional Court decided that the authorisation of the Federal Criminal Police Office (Bundeskriminalamt – BKA) to carry out covert surveillance measures in order to protect against threats from international terrorism is, in principle, compatible with fundamental rights under the German Basic Law. In some respects, however, the current design of the investigative powers does not satisfy the principle of proportionality. Consequently, the Federal Constitutional Court ruled various provisions within the overall legal structure unconstitutional. Consolidating long-established case-law, the decision addresses the legal requirements for carrying out covert surveillance measures, as well as the issue of the transfer of data for other purposes to third-party authorities, and finally, for the first time, the requirements for the transfer of data to authorities in third countries.

With regard to the legal requirements for carrying out covert surveillance measures, the provisions introduced in 2009 are in part too unspecific and too broad. Some also lack supplementary rule-of-law safeguards, particularly safeguards protecting the core area of private life or guaranteeing transparency, individual legal protection and judicial review. Numerous parts of the provisions concerning the transfer of data lack – both with respect to authorities in Germany as well as in third countries – sufficient legal restrictions. Since the grounds for the unconstitutionality do not affect the core of the powers granted, the objectionable provisions will mainly remain in force, subject to restrictions, up to and including 30 June 2018.

In parts, the decision was not adopted unanimously; Justices Eichberger and Schluckebier delivered separate opinions.

Facts of the Case:

The constitutional complaints challenge certain powers which were introduced into the Federal Criminal Police Office Act (Bundeskriminalamtgesetz – BKAG) in 2009. The federal legislature thus assigned to the Federal Criminal Police Office tasks extending beyond its previous law enforcement duties and reaching into the domain of the protection against threats from international terrorism, which until then had been a task assigned to the Laender (federal states). An additional subject of the constitutional complaints concerns the previously existing rules in the Federal Criminal Police Office Act on the transfer of data to third countries, the scope of which has been extended by the newly attributed powers.

Further information on the background of the case can be found (in German) in Press Release no. 43/2015 of 16 June 2015.

Key Considerations of the Senate:

1. The challenged powers authorise the Federal Criminal Police Office to covertly collect personal data in the context of the protection against threats from international terrorism and the prevention of criminal offences and allow – depending on the respective power – interferences with the fundamental rights of the inviolability of the home, of the secrecy of telecommunication and of informational self-determination, as well as the fundamental right to the confidentiality and integrity of information technology systems. It is the legislature’s task to find a balance between the severity of interferences with fundamental rights on the one hand and the duty of the state to protect the population on the other. It must be considered, on the one hand, that the challenged powers for the most part authorise serious interferences with privacy, and, in specific cases, can even intrude into private refuges, whose protection is of particular significance for the safeguarding of human dignity. On the other hand, it needs to be considered that effective means of gathering information are of great importance for protecting against threats emanating from international terrorism to the democratic and free basic order and for the protection of fundamental rights. In this respect, the safety of the state, as a constituted power of peace and order, as well as the safety of the population it is bound to guarantee – all the while respecting the dignity and the intrinsic value of the individual – rank equally with other highly valued constitutional rights.
2. This decision fundamentally consolidates the existing case-law on the relevant constitutional requirements for achieving this balance. It shows that the powers attributed to the Federal Criminal Police Office are, in principle, not objectionable. However, stemming from the principle of proportionality, these powers are subject to overarching requirements in cases in which they – as most of them do – authorise serious interferences with privacy. In particular, the powers must be restricted to the protection of sufficiently weighty legally protected interests and are constitutional only in those cases in which there is a sufficiently specific foreseeable danger to these interests. Only under limited conditions may the investigative powers also extend to persons from whom the threat does not emanate and who belong to the target person’s sphere. With regard to powers which typically lead to interference with the strictly protected core area of private life, particular protective rules are needed. Sufficient protection of persons subject to professional confidentiality is also required. Moreover, the powers are subject to constitutionally required standards of transparency, individual legal protection and judicial review. Stemming from these standards are duties to inform the affected parties after the measures have been carried out, powers of judicial review, supervisory control on a regular basis, as well as reporting requirements vis-à-vis the Parliament and the public. Finally, these investigative powers must be supplemented by requirements to delete the recorded data.
3. In various respects, the challenged provisions do not meet these requirements.
4. a) The provisions on the use of special means of surveillance outside of homes, such as observation, audio and visual recording, the application of tracking devices or the use of police informants, are not sufficiently limited (§ 20g secs. 1 to 3 BKAG).
5. aa) The legislature opens such measures not only for the purpose of protecting against specific threats, but also for the prevention of crimes (§ 20g sec. 1 no. 2 BKAG). This approach is, in principle, permissible, but is subject to limits to which the provision does not adhere. The provision neither stipulates the requirement that an incident be present which is specific and foreseeable at least with regard to its nature, nor, alternatively, that the individual behaviour of a person substantiate the specific probability that he or she will commit terrorist offences in the near future. Thus, § 20g BKAG does not provide the authorities and the courts with sufficiently defined criteria to work with and allows measures which may be disproportionately broad.
6. bb) § 20g BKAG allows measures which can in part typically result in the monitoring of confidential situations ­– situations from which the state is strictly excluded. Thus, in order to safeguard the core area of private life both with respect to data collection and to data analysis, the legislature must provide protective provisions. These, however, are lacking here.
7. cc) Furthermore, to the extent that it relates to longer term monitoring or non-public conversations, the requirement of a judicial decision in § 20g sec. 3 BKAG is poorly designed, given that some of the measures are not at all subject to a prior judicial order, while other measures require a judicial order only after one month.
8. b) The provision on the surveillance of private homes (§ 20h BKAG), which allows data collection in the form of visual as well as acoustic surveillance, only partially satisfies the requirement of proportionality.
9. aa) The authorisation of the surveillance of private homes with a view to contact or accompanying persons (§ 20h sec. 1 no. 1 c BKAG) is not compatible with Art. 13 secs. 1 and 4 Basic Law (Grundgesetz – GG). The surveillance of private homes constitutes a particularly serious interference with privacy. Therefore, such a surveillance measure is only appropriate if it focusses exclusively on the communications of the target person from whom the threat emanates. Unlike other measures, this type of surveillance cannot be ordered to directly target third parties. However, this is not to say that third parties cannot be indirectly affected by such a measure.
10. bb) The provision for the protection of the core area of private life in § 20h sec. 5 BKAG is constitutionally insufficient. Since the surveillance of private homes can constitute a serious interference with privacy, the requirements of core area protection are strict. After such a measure has been carried out – with the exception of cases of immediate danger – all data must first be examined by an independent body, to verify whether it contains highly private information, before it can be used by the Federal Criminal Police Office. The provision, however, does not ensure that this is the case.
11. c) Sufficient protection of the core area of private life is lacking with regard to access to information technology systems (§ 20k BKAG). In this case, the body tasked with viewing the collected data is not sufficiently independent. It is necessary that the control essentially be carried out by external persons not charged with security tasks. While the recourse to personnel from the Federal Criminal Police Office for the purpose of involving staff with investigation-specific or technical expertise is not ruled out, the actual carrying out and decision-making responsibility must lie in the hands of persons independent from the Federal Criminal Police Office. By attributing the task of screening mainly to employees of the Federal Criminal Police Office, however, § 20k sec. 7 sentences 3 and 4 BKAG falls short of these requirements.
12. d) The provision on the surveillance of on-going telecommunications (§ 20l BKAG) is only partially compatible with the Constitution. In particular, the provision extending the scope of telecommunications surveillance to the prevention of criminal offences is too unspecific and disproportionately broad. This shortcoming is also found in the provision on the collection of telecommunications traffic data (§ 20m secs. 1 and 3 BKAG).
13. e) All of the challenged investigative and surveillance powers are lacking supplementary provisions, without which the proportionality of the challenged investigative and surveillance powers is not satisfied.
14. aa) The protection of persons subject to professional confidentiality is not viably designed, since a distinction is made between defence counsel and other lawyers. Since the surveillance measures in question do not pursue the aim of prosecuting offences but of protecting against threats, such a distinction is not suitable for protecting legal counsel.
15. bb) The provisions aiming to guarantee transparency, legal protection and judicial review do not completely satisfy the constitutional requirements. They lack adequate specifications on regular mandatory review, on a comprehensive documentation requirement which allows the full and effective review of the surveillance measures in question, and on reporting duties vis-à-vis Parliament and the public.
16. cc) The obligations to delete the collected data also only partially satisfy constitutional requirements. It is unconstitutional that there is a possibility that the deletion of collected data, once it has served its purpose, can in general be avoided on the grounds that the data is needed for law enforcement or for the prevention of crimes or as a precaution for the future prosecution of a criminal offence of considerable significance (§ 20v sec. 6 sentence 5 BKAG). This possibility thus permits the storage of data in view of new, only generally circumscribed uses for which the Act does not and, in this broadness, in fact cannot provide any legal basis. The very brief safekeeping period for the deletion protocols drawn up by the Federal Criminal Police Office is also not viable, as it does not sufficiently ensure the possibility of review at a later time.
17. The decision, leaning on existing case-law, develops new distinctions for conditions on the use of data extending beyond the original investigation procedure. The principles of purpose (Zweckbindung) and change in purpose (Zweckänderung) are relevant here. The generally permissible further use of data within the context of its original data collection purpose is to be distinguished from a change in purpose, which is only permissible within certain limits.
18. a) The legislature may permit the use of data extending beyond the original investigation procedure in the context of the original purpose of this data (further use), provided that the authority empowered to collect that data uses it within the same field of activity, for the protection of the same legally protected interests, and the enforcement or prevention of the same criminal offences, as authorised by the relevant data collection provision. It does not contradict the principle of purpose when the further use of data as a mere evidentiary basis for further investigations is permitted. However, the same does not apply for data originating from the surveillance of private homes or from access to information technology systems. Due to the severity of these interferences, every further use of such data must also fulfil the risk situation requirements needed for the initial data collection.
19. b) Moreover, the legislature may also permit the use of the data for purposes other than the purpose of the initial data collection (change in purpose). The proportionality requirements for such a change align on the principle of a hypothetical re-collection of data. Accordingly, the new use of the data must serve the protection of legally protected rights or aim to investigate criminal offences of such a weight that, by constitutional standards, collecting them again by comparably weighty means would be justified. A specific danger, which is required for the initial data collection, is generally not required a second time; it is necessary but generally also sufficient that there be a specific evidentiary basis for further investigations. Due to the particular severity of the interference that the surveillance of private homes and remote searches of information technology systems constitute, a change in purpose with regard to such measures is only permitted if the risk situation requirements applicable to the collection of the data are again fulfilled. With this specification, the decision consolidates a long line of case-law and carefully delimits it.
20. The provisions on the use and transfer of data to domestic authorities only partially satisfy these principles.
21. a) The fact that the Federal Criminal Police Office may use the data obtained, in principle irrespective of specific dangers, to carry out its function of protecting against threats from international terrorism (§ 20v sec. 4 sentence 2 no. 1 BKAG) does not raise concerns. However, this power is disproportionate with regard to data from the surveillance of private homes and remote searches. Due to the severity of the interference, a further use may only be permitted in cases where an imminent danger or a sufficiently specific risk situation is once again present.

In contrast, the statutorily unlimited power of the Federal Criminal Police Office to further use the data for the protection of witnesses or other persons (§ 20v sec. 4 sentence 2 no. 2 BKAG) is too unspecific and does not satisfy the constitutional requirements.

1. b) The powers to transfer data to other domestic authorities (§ 20v sec. 5 BKAG) are unconstitutional.

The transfer of data for the protection against threats is unconstitutional insofar as it allows a transfer for the general prevention of terrorist offences, irrespective of a specific evidentiary basis for further investigations. The provision on the transfer for data for law enforcement purposes is not compatible with the Constitution. The referenced provisions of the Code of Criminal Procedure (§ 161 secs. 1 and 2 Strafprozessordnung – StPO) neither sufficiently ensure the constitutionally required limitation of data transfer, nor do they ensure that the transfer of data from the surveillance of private homes or remote searches is limited to the purpose of prosecuting sufficiently serious criminal offences; the provision also does not rule out the transfer of data from the visual surveillance of private homes to law enforcement authorities, although pursuant to Art. 13 secs. 3 and 4 GG, such visual surveillance is only permitted with regard to the protection against threats, but not with regard to criminal prosecution. The powers for transferring data to offices for the protection of the Constitution, the Military Counterintelligence Agency and the Federal Intelligence Service are disproportionately broad (§ 20v sec. 5 sentence 3 no. 1, sentence 4 BKAG).

Furthermore, with respect to all transfer powers, the relevant requirements, which also apply here, for an effective review by the Federal Data Protection Commissioner are not sufficiently guaranteed.

6. The decision contains fundamental statements on the requirements for the transfer of data to security authorities in third countries. It is the first time the Federal Constitutional Court has been called upon to decide on this matter. The decision, however, does not pertain to transfers to Member States of the European Union (§ 14a BKAG).

The result of a transfer of data to third countries is that, after the transfer, the guarantees of the Basic Law can no longer be applied as such and the standards prevailing in the respective receiving country apply instead. This does not, however, fundamentally prevent a transfer to third countries. The Basic Law’s alignment towards international cooperation encompasses the respect for foreign legal orders and conceptions. In deciding whether to transfer personal data to third countries, the exercise of German state authority remains bound to uphold the fundamental rights. The transfer of data is thus subject to the general constitutional principles of change in purpose and purpose. In evaluating the new use of data, however, the autonomy of the other legal order must be respected. Third countries’ state authorities are only bound by their own laws.

Limits to the transfer of data emerge on the one hand in view of the respect of data protection guarantees. The limits in the Basic Law on the domestic collection and processing of data may not be undermined in their substance by an exchange of data between security authorities. The legislature must thus ensure that the protection of fundamental rights is not eroded by the transfer of collected data by German authorities to third countries and international organisations, just as it must not be eroded by the receiving and processing of data from foreign authorities which was obtained in violation of human rights. This does not mean that, in the legal order of the third country, institutional and procedural precautions must be guaranteed in line with the German model. What is required is the guarantee of an appropriate substantive level of data protection for the handling of the transferred data in the receiving state.

On the other hand, limits to the transfer of data arise concerning the use of data by the receiving state if violations of human rights are to be feared. In any event, the transfer of data to third countries is imperatively barred if violations of the fundamental principles of the rule of law are to be feared. Under no circumstances may the state be complicit in violations of human dignity.

The transfer of data to third countries presupposes a restriction to sufficiently weighty purposes for which the data is to be transferred and used, as well as the ascertainment that the data will be handled in the third country in acceptable conformity with human rights and data protection standards. For the rest, the guarantee of effective control is also needed here.

7. In part, the challenged power to transfer data to public authorities in other countries does not fulfil these constitutional requirements.
8. a) It defines the purposes for a transfer too broadly (§ 14 sec. 1 BKAG). The general authorisation of a transfer of data for the fulfilment of the tasks incumbent upon the Federal Criminal Police Office (§ 14 sec. 1 sentence 1 no. 1 BKAG) is not sufficiently delimited and thus disproportionate. It lacks standards ensuring that data from surveillance measures involving particularly intrusive interferences may only be transferred for the purpose of protecting legally protected interests or investigating criminal offences of such a weight that collecting them again with comparably weighty means would, by constitutional standards, be justified. The power to transfer data for the protection against a specific, present and significant danger to public security (§ 14 sec. 1 sentence 1 no. 3 BKAG) is generally not objectionable. However, it is insufficiently limited with regard to data stemming from the surveillance of private homes. Also, insofar as a transfer of data is permitted because there are indications that criminal offences of particular seriousness will be committed (§ 14 sec. 1 sentence 2 BKAG), limiting distinctions ­– following the criterion of a hypothetical re-collection of data – are lacking.
9. b) In contrast, the challenged provisions satisfy the requirements for ascertaining that the data will be handled in accordance with data protection standards and human rights in the receiving country. When interpreted in conformity with the Constitution, § 14 sec. 7 BKAG sufficiently ensures such ascertainment.
10. c) With regard to domestic transfer practices, it is constitutionally necessary to ensure a regular supervisory control, as well as the ordering of reporting duties; these requirements are, however, lacking here.
11. The challenged provisions are predominantly not to be declared void, but rather unconstitutional. Given that the constitutional shortcomings do not affect the granting of the powers as such, but essentially pertain solely to the provisions’ drafting in detail, these may – subject to the conditions determined by the Court – continue to apply up to and including 30 June 2018.

Separate Opinion of Justice Eichberger:

I cannot subscribe to the decision, in several respects concerning the conclusions drawn with regard to the challenged norms, and in parts of the reasoning.

The decision indeed moves within the framework of the case-law developed by the Court particularly over the past twelve years on the permissibility of interferences with fundamental freedoms for reasons of security, which is to be guaranteed by the state. However, the principles set out by the Senate today, as in the past, almost exclusively derive from the considerations carried out in the context of the proportionality test with a view to balancing the burdens imposed by serious measures upon the fundamental rights of the parties affected, on the one hand, and the state’s duties of protection with regard to terrorist threats, on the other. Yet here, too, the prerogative of appraisal with regard to the actual assessment of the risk situation and the prognosis of its development belongs to the legislature. In light of this, the Senate should not have set up such detailed requirements. In weighing the latent threat posed by covert surveillance and investigative measures, it must be kept in mind that most of the challenged norms do not authorise a general collection of data affecting a wide range of persons. Should, in a specific case of the carrying out of investigative measures, persons be affected to whom one can attribute little or no responsibility for the grounds of the investigation, a particular sacrifice is exacted of them as a citizen’s duty for the public guarantee of security.

Not all of the procedural, transparency and control requirements prescribed to the legislature – even if many of them make sense and may be right – are actually required exactly so by the Constitution. The judgment, despite its welcome steps toward consolidation, nevertheless leads to a problematic entrenchment of the excessive constitutional requirements in this field.

I consider it to be too far-reaching to derive from the principle of proportionality the requirements that persons affected by serious surveillance measures must be given effective sanctioning mechanisms; that the control of data collection and use must be carried out in regular intervals no longer than two years; and that reporting duties vis-à-vis Parliament and the public to ensure transparency and control must be provided. It would have been sufficient to merely prescribe the level of protection to be ensured by the legislature.

Insofar as the Senate considers the authorisation to carry out certain investigative and data collection measures for the purposes of the prevention of crime to be too unspecific and disproportionate, it needlessly fails to choose the possible option of an interpretation in conformity with the Constitution. Unlike the Senate, I consider the concept chosen by the legislature, to only require a judicial decision for an extension of the majority of the surveillance measures in § 20g sec. 2 BKAG, to be constitutionally tenable. Furthermore, I cannot share the Senate’s view that § 20g BKAG is also unconstitutional for not containing any regulation for the protection of the core area of private life.

With regard to the use of data obtained by means of surveillance measures, the judgment refines and consolidates the idea of a “hypothetical re-collection” as the notional base for determining the conditions for a change in purpose. I cannot back the exception called for by this concept, whereby every further use and change in purpose with regard to data from the surveillance of private homes or remote searches must be justified by an imminent or a sufficiently specific danger, just as for the initial collection of the data. Even in the context of the surveillance of private homes, the actual massive interference with privacy takes place when the investigation accesses the protected area. A further use – even one with a change in purpose – does indeed perpetuate this interference, but, even with regard to the surveillance of private homes (and similarly with remote searches), it does not reach the level of severity of the initial interference. The further use and change in purpose of intelligence obtained from surveillance measures must thus be subject to the general rules. The Senate should have corrected its existing case-law accordingly.

Separate Opinion of Justice Schluckebier:

Insofar as the decision objects to the challenged provisions for constitutional reasons, I cannot agree to large parts of the decision and the accompanying reasoning. In my opinion, the proportionality test applied in the decision is constitutionally misguided in several respects. Furthermore, the requirements established for the specificity of individual provisions are excessive. Ultimately, by means of numerous detailed requirements of a technical legislative nature the Senate puts its own notion of regulatory framework before those of the democratically legitimised legislature; however, as far as I am concerned, the Senate goes too far in doing so. Contrary to what the Senate assumed, some of the challenged provisions could in fact have been interpreted in conformity with the Constitution.

Generally it should be borne in mind that the legislature’s regulatory approach has essentially found an appropriate and tenable balance in the complex tension between the fundamental rights of persons affected by the police measures on the one hand, and the legislature’s obligation to protect the fundamental rights of individuals and the constitutionally protected legal interests of the general public on the other hand,. The legislature thus takes into account that, in a state governed by the rule of law, individuals must be able to rely on receiving effective protection by the state and on the protection of guaranteed fundamental freedoms against the state.

The Senate objects to the lack of an explicit statutory provision protecting the core area of private life particularly with regard to special methods for the collection of data outside private homes (§ 20g Abs. 2 BKAG); in my opinion, such an express provision is not necessary. Indeed, the affected persons are “in public” when they are not inside private homes. However, in those cases, they are not situated in specially protected private areas. The protection of the core area can be ensured at the level of the actual application of the law.

Furthermore, I do not share the reasoning with regard to the requested establishment of an “independent body” that is essentially staffed with external persons who are not entrusted with security functions and is, in respect of collection and evaluation, responsible for actually carrying out and adopting decisions on measures for the surveillance of private homes and remote searches. Given its complicated nature, the Senate’s suggested solution affects the effectiveness of the measures since the evaluation of findings is often very urgent and needed as quickly as possible in the context of the prevention of criminal offences and the protection against threats. For that reason, it does not sufficiently satisfy the requirements of appropriateness with regard to the effective prevention of terrorist crimes. The possibility offered to the legislature, to grant the Federal Criminal Police Office “certain short-term initial possibilities of taking action” in exceptional cases where danger will occur unless action is taken,– a case which, in practice, will occur rather often –, clearly contrasts the judgments’ assumption according to which the data’s special need for protection requires, as a rule, the almost complete exclusion of the Federal Criminal Police Office from the responsibility of initial review.

Insofar as the Senate assumes that the powers to a further use of the data collected in the context of the protection against threats from terrorism and the transfer of such data to domestic authorities and authorities in third countries are unconstitutional in several respects, I cannot fully agree to this either. This applies in particular insofar as the Senate states that it will permit the use of lawfully collected data in further contexts only in order to protect the same or equally important legally protected interests. The judgment predicates the transfer and use of the data for other purposes on whether, even after a change in purpose, this data serves to protect legally protected interests or to uncover criminal offences of such a weight that this could, by constitutional standards, justify collecting them again with comparably weighty means (criterion of a hypothetical re-collection of data). This perspective may be justified with regard to findings that were obtained through highly intrusive, particularly significant interferences, which is the case, for example, when measures such as the surveillance of private homes and remote searches were employed. However, with regard to other interferences, which result in so-called coincidental findings, this can, in my opinion, lead to hardly tolerable results since it requires the rule-of-law order to accept the occurrence of crimes and damage to legally protected interests. On condition that such coincidental findings were obtained through a lawful and thus also constitutional interference, my view is that it is an unacceptable consequence that a state under the rule of law is forced to deliberately “look away”. This deprives the potentially concerned individuals or the legally protected interests of the necessary protection while giving priority to the protection of the data of those persons whom the measures at issue actually target, especially given that this case does not concern a scenario of a change in purpose of mass data that was collected without cause and very broadly.

As for the additional statutory provisions called for by the Senate with regard to the transfer of data to authorities in other countries, I do not share the view that these are constitutionally required. The relevant provision (§ 14 BKAG) could have been interpreted in conformity with the Constitution. The provision explicitly states that the transfer of personal data is prohibited if there are reasons to believe that the data could be used in a manner which would violate the purpose of a German law or if, in the individual case, the protection-worthy interests of the person concerned prevail. This includes the existence of an appropriate data protection standard in the receiving state. The Act also contains transfer prohibitions and grounds for denial (§ 27 BKAG). With these, it can easily be ensured that the transfer of data does not in any way promote human rights violations in other states and that a prior ascertainment of the use of the transferred data in the receiving country takes place. Also in this context, the specifications in the regulatory framework which the legislature is now forced to create will inflate the text of this Act which is already inundated, badly legible and hardly comprehensible, leading to the opposite of norm specificity. However, in its practical application, there will not be any corresponding notable increase in the protection of the persons concerned.

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The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Press Release No. 6/2016 of 02 February 2016

Order of 12 January 2016
1 BvL 6/13

59a sec. 1 sentence 1 of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung) is unconstitutional and void to the extent that it prohibits lawyers to establish a professional partnership with physicians and pharmacists for the joint practicing of their professions. Such was the decision by the First Senate of the Federal Constitutional Court in an order published today in specific judicial review proceedings conducted upon referral by the Federal Court of Justice (Bundesgerichtshof). The prohibition to establish a partnership (Sozietätsverbot) disproportionately interferes with the freedom to practice an occupation (Art. 12 sec. 1 of the Basic Law, Grundgesetz – GG). The legislature permits the association of lawyers with other professional groups – in particular with patent attorneys, tax consultants and auditors – in a professional partnership. Compared to such partnerships, an inter-professional cooperation of lawyers with physicians and pharmacists does not hold such considerable additional risks regarding compliance with a lawyer’s professional duties as to justify a different treatment.

Facts of the Case and Procedural History:

The two petitioners in the initial proceedings are a lawyer and a physician and pharmacist. They established a professional partnership and applied for its entry into the partnership register. A Local Court (Amtsgericht) and a Higher Regional Court (Oberlandesgericht) denied the registration arguing that such a partnership conflicts with the exhaustive regulation of § 59a sec. 1 sentence 1 of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung – BRAO), which does not list the professions of physician and pharmacist. The Federal Court of Justice suspended the proceedings and referred it to the Federal Constitutional Court for review.

Key Considerations of the Senate:

1. The question referred to the Court must be limited to the part of the reviewed § 59a sec.1 sentence 1 BRAO that is essential for the decision of the regular courts. With regard to the concerned professions it must be limited to the cooperation of lawyers with physicians and pharmacists; regarding the form of cooperation it must be limited to the professional partnership.
2. § 59a sec. 1 sentence 1 BRAO is incompatible with Art. 12 sec. 1 GG in so far as the provision precludes an association between lawyers and physicians as well as pharmacists for joint practicing of their professions within a professional partnership.
3. a) It is true that the legislature pursues a legitimate purpose when interfering with the freedom to practice an occupation by limiting the professions permitted to combine in a professional partnership. The purpose of the provision is to ensure that the essential basic obligations of a lawyer stipulated in § 43a BRAO are complied with. These also include professional confidentiality, the prohibition to represent conflicting interests, as well as the duty to refrain from entering into professional relationships that compromise a lawyer’s professional independence.
4. b) It follows from the principle of proportionality that a law restricting fundamental rights must be suitable, necessary and appropriate to achieve the purpose pursued by the legislature. Accordingly, a law is necessary if the legislature could not have chosen another equally effective means with no or less restrictive impact on fundamental rights to achieve this purpose. A law is appropriate if an overall balancing of the weight of the interference, the significance and the priority of the reasons justifying it does not exceed the limits of reasonableness.
5. aa) To a large extent, the prohibition of a partnership with physicians and pharmacists is not necessary to ensure lawyers’ professional confidentiality; apart from that it is not appropriate.

(1) Violation of a lawyer’s obligation to maintain confidentiality under § 43a sec. 2 BRAO is subject to punishment according to § 203 sec. 1 no. 3 of the Criminal Code (Strafgesetzbuch – StGB). In principle, the legislature may bar those professions from joining a professional partnership for which a sufficient degree of confidentiality does not appear to be guaranteed. Following this approach, the legislature ruled out such deficits only for those professions mentioned in § 59a sec. 1 BRAO and hence permitted them to establish professional partnerships with lawyers.

(2) The legislative decision to thus exclude physicians and pharmacists from the group of professions permitted to establish a partnership is, however, generally already not necessary in order to safeguard the clients’ interest in confidentiality. When hiring an inter-professional partnership it is generally expected that client-related information is shared with the non-legal partners; sharing client-related information therefore does not constitute a breach of confidentiality. At least to a large extent, the prohibition of such a partnership is not necessary for protecting a lawyer`s confidentiality vis-à-vis third parties. Like lawyers, both physicians as well as pharmacists are obliged to maintain professional confidentiality. This obligation fully applies to all facts not generally known and which are confided to a professional in his or her professional capacity as physician or pharmacist or which he or she becomes aware of; a violation is subject to punishment under § 203 sec. 1 no. 1 StGB.

(3) In so far as the facts have not been confided or made known to the physician or pharmacist in this professional capacity, the non-legal partner is not obliged to maintain confidentiality. However, the requirement of proportionality stricto sensuis no longer met if the prohibition to establish a partnership is based solely on the fact that the non-legal partner is not obliged to maintain confidentiality in these cases. In order to provide competent legal advice and to be economically successful it may be essential for a law firm to offer legal assistance in specialised fields and establish to that end a permanent partnership with members of suitable professions. The resulting increased endangerment of confidentiality is small and does not justify the substantial interference with the freedom to practice an occupation. Notably, the legislature did not assume such additional risks in the case of those professions mentioned in § 59a sec. 1 BRAO and hence permitted them to establish partnerships with lawyers. But even in cooperation with professions allowed to establish a professional partnership under the above provision, situations might occur in which the non-legal partner becomes aware of circumstances that are subject to the lawyer’s confidentiality but not to his own professional obligation to maintain confidentiality. Furthermore, pursuant to § 30 sentence 1 and § 33 of the Federal Lawyers’ Rules of Professional Practice (Berufsordnung für Rechtsanwälte – BORA) it must be ensured that also the non-legal partners and the professional partnership observe the lawyers’ rules of professional practice.

(4)Prohibiting professional partnerships of lawyers with physicians and pharmacists is, to a large extent, not necessary or at least not appropriate for safeguarding the lawyer’s rights to refuse to testify. According to the relevant rules of procedure, physicians and pharmacists can claim their own right to refuse to testify. If, in individual cases, there should be situations in which the non-legal person’s right to refuse to testify falls behind the lawyer’s right to refuse to testify, the risk resulting from the reduced degree of protection of confidentiality is low and does not differ from the risk the legislature accepts in the context of those professions it has already granted the permission to establish a professional partnership.

(5) Nor does safeguarding the rights to protection against seizure under criminal procedural law, which also serves to protect the lawyer-client relationship, make it necessary to prohibit a professional partnership with physicians and pharmacists. The protection of these professional groups against seizure does not fall behind the protection lawyers can claim. Rather, § 97 of the Code of Criminal Procedure (Strafprozeßordnung – StPO) links the protection against consfiscation to the right to refuse to testify under § 53 sec. 1 sentence 1 nos. 1 to 3b StPO and is therefore applicable to lawyers as well as physicians and pharmacists.

(6)  Investigation measures in the repressive area of law enforcement, measures of protection against risks of public safety as well as measures for the prevention of criminal offenses are subject to different protection levels, which may affect the clients’ interest in confidentiality. Pursuant to § 160a sec. 1 StPO, the prohibition to take or use evidence applies in favour of lawyers is an absolute prohibition while the prohibition that applies in favour of physicians and pharmacists is relative pursuant to § 160a sec. 2 in conjunction with § 53 sec. 1 no. 3 StPO. However, also the professions mentioned in § 59a sec. 1 BRAO and that are thus permitted to establish a professional partnership are only subject to such a relative protection; in this respect, the legislature accepts a limited weakening of the clients’ interest in confidentiality in favour of the freedom to practice an occupation.

1. bb) A prohibition of partnerships between lawyers and physicians or pharmacists might still be necessary to protect a lawyer’s independence. However, also in that regard the prohibition is at least not appropriate.

(1) When several professions work in a partnership, impairments of the professional independence of individual partners – be it because the other partners’ interests are considered in order to avoid or solve conflicts of interest or due to prevailing power structures – can never be ruled out completely. The legislature’s assumption that it is necessary to meet risks to the professional independence is therefore plausible and not objectionable.

(2) Compared to the combinations of professions permitted to establish a partnership according to § 59a BRAO, the inter-professional cooperation of lawyers with physicians and pharmacists does not entail an increased potential endangerment of the lawyers’ independence so that its prohibition does not prove to be appropriate. Although, unlike the professions permitted to establish a partnership, an inter-professional cooperation between lawyers, physicians and pharmacists does not offer advice on business or commercial law issues in the broadest sense, this does not constitute a plausible reason for an increased need of protection in favour of the lawyer’s independence. To the contrary, the completely different field of professional activity of physicians and pharmacists rather confirms that the latter will show more respect for the independence of their legal partner alone because of their professional distance to legal issues.

The form of organisation at issue here does not increasingly jeopardise the independence either. Practicing a profession in a professional partnership does not exempt the respective professional from his or her legal obligations regarding their profession (cf. § 6 sec. 1 of the Act on Partnership Corporations Partnerschaftsgesellschaftsgesetz – PartGG). Furthermore, the managerial authority of the individual partner cannot be restricted with regard to the practicing of his or her profession (cf. § 6 sec. 2 PartGG). In addition, the protection mechanisms in the already mentioned Federal Lawyers’ Rules of Professional Practice apply irrespective of the corporate structure.

1. cc) The objective to avoid conflicts of interests does not justify a prohibition of professional partnerships between lawyers and physicians or pharmacists either.

(1) In accordance with § 43a sec. 4 BRAO and the more detailed provisions of § 3 BORA, lawyers are prohibited to represent conflicting interests. Essential parts of this prohibition are secured under criminal law by § 356 StGB pursuant to which a violation of the lawyer-client relationship is punishable. The professional codes of conduct for physicians and pharmacists do not have corresponding provisions; furthermore, physicians and pharmacists cannot be offenders under § 356 StGB. To forgo comparable provisions appears reasonable since physicians and pharmacists normally do not enter into an adversary relationship with third parties when acting in the interest of their patients. However, not all professions listed in § 59a BRAO are required to represent the interests of one party only as stipulated in § 43a sec. 4 BRAO, § 3 BORA. Only patent lawyers and, within the very limited scope of § 392 of the Fiscal Code (Abgabenordnung– AO), also tax consultants, tax representatives, auditors and certified accountants may become criminally liable for violating the lawyer-client relationship. Generally, the legal partner must therefore be compelled, in accordance with § 30 sentence 1 BORA, to contractually commit the non-legal partners to comply with the lawyers’ rules of professional practice. In accordance with § 33 sec. 2 BORA, a lawyer must furthermore prevent, by measures that take effect throughout the partnership, that the prohibition to represent conflicting interests is disregarded.

(2) Within this narrow scope, when permitting professional partnerships under § 59a sec. 1 BRAO, also the legislature accepted that in inter-professional cooperations risks to the lawyer’s integrity cannot be ruled out completely. A partnership with physicians and pharmacists in comparison to one with professions permitted for partnership does not entail a specifically increased endangerment of the lawyer’s integrity. Thus, also against that background the specific prohibition to establish a partnership constitutes an inappropriate interference with their freedom to practice an occupation.

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The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Order of 15 December 2015
2 BvL 1/12

The legislature is not barred from enacting statutes even if those contravene international treaties within the meaning of Art. 59 sec. 2 sentence 1 of the Basic Law (Grundgesetz – GG). Such was the decision of the Second Senate in an order published today within the context of a specific judicial review relating to the Double Taxation Treaty concluded between Germany and Turkey in 1985 (Abkommen zur Vermeidung der Doppelbesteuerung zwischen Deutschland und der Türkei von 1985 – DTT Turkey 1985). Art. 59 sec. 2 sentence 1 GG provides that, in the national context, international treaties have the same rank as statutory federal law, unless they fall within the scope of a more specific constitutional provision that deals with the relationship between domestic and international law and accords a different rank to such international treaties (Öffnungsklausel) (Arts. 1 sec. 2, 23, 24 GG). The principle of democracy requires that, within the boundaries set by the Basic Law, later legislatures be able to revoke legal acts of previous legislatures. Neither the rule of law nor the principle of the Constitution’s openness to international law (Grundsatz der Völkerrechtsfreundlichkeit des Grundgesetzes) yield a different result. Although the latter principle is also of constitutional rank, it does not entail an absolute constitutional duty to obey all rules of international law. Justice König filed a separate opinion.

Facts of the Case and Procedural History:

In a now defunct 1985 treaty aimed at avoiding double taxation (DTT Turkey 1985), Germany and Turkey inter alia agreed that income from employment earned in Turkey by persons fully liable for German taxes does not count into the basis of assessment (Bemessungsgrundlage) for German taxes and may only be used to set the tax rate (Steuersatz) for other sources of income. According to § 50d sec. 8 sentence 1 of the Income Tax Act (Einkommensteuergesetz– EStG) as amended by the 2003 Tax Amendment Act and in force today, the exemption “will only be granted, irrespective of the applicable [double taxation] treaty, if the citizen liable for taxation shows that the state entitled under the treaty to exercise the right of taxation has waived this right or that the taxes assessed by this state on the basis of the income in question have been paid”. In the initial proceedings, the plaintiffs – a married couple whose taxes are jointly assessed – challenged their income tax bill for the year 2004. The husband had earned income from employment in Germany and in Turkey. Since the couple had not shown that the income earned in Turkey had been taxed there or that Turkey had waived its right of taxation, the tax office had treated the entire gross income from employment as taxable. Legal recourse before the finance court remained without success. By order of 10 January 2012, the Federal Court of Finance suspended the appeal proceedings in order to obtain a decision by the Federal Constitutional Court on whether § 50d sec. 5 sentence 1 EStG is constitutional.

Key Considerations of the Senate:

1. According to § 80 sec. 2 sentence 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the referring court is required to show how its decision depends on the validity of the legal provision in question and with which superior legal provisions within the German legal order [translator’s note: i.e. provisions of the Basic Law, or – in the case of federal state law – also of federal law] that provision is incompatible. In doing so, it must provide the facts of the case, analyse the applicable ordinary law, detail its relevant jurisprudence, and consider the legal views developed by legal scholarship and jurisprudence. However, § 80 sec. 2 sentence 1 BVerfGG does not require the referring court to mention and elaborate on every single conceivable legal view. In principle, the issue of whether the validity of the legal provision in question is essential to the referring court’s decision is determined by that court’s legal view – unless that view is obviously absolutely untenable. According to these standards, the referral is admissible.
2. The referral is unfounded. § 50d sec. 8 sentence 1 EStG is constitutional.
3. a) Under the system of the Basic Law, international treaties have the same rank as statutory federal law. Therefore, they can be superseded by later federal statutes that contradict them.
4. aa) Within the German legal order, the rank and classification of an international treaty are determined by the Basic Law, several provisions of which regulate the relationship between international and national law. Since the effectiveness and applicability of international law within the German legal order depend on the Basic Law, they can also be limited by the Constitution. This may lead to discrepancies between the law effective in the national legal order and the state’s international obligations.
5. bb) Art. 25 sentence 2 GG provides that, in the national legal order, general rules of public international law rank above statutory law but below the Constitution. These general rules of public international law include customary international law and the general principles of international law, i.e. those rules of international law that bind all states, or at least most of them, irrespective of having been contractually recognised by them. Therefore, in principle, specific provisions of international treaties do not benefit from the precedence provided for in Art. 25 sentence 2 GG. In contrast to other legal systems, the Basic Law does not acknowledge a general precedence of international treaties over ordinary statutory law.

According to Art. 59 sec. 2 sentence 1 GG, international treaties that regulate the political relations of the Federation or that concern objects for which the Federation has the legislative competence enter into effect within the national legal order only after the necessary parliamentary Act of Assent has been passed. Furthermore, it follows from Art. 59 sec. 2 sentence 1 GG that, within the national legal order, international treaties, unless they fall within the scope of another more specific “opening clause” – particularly Arts. 23-25 GG –, have the same rank as statutory federal law and do not rank above it, and in particular not at a constitutional level.

Although the principle that agreements must be kept (“pacta sunt servanda”), which is recognised as a general rule of public international law, establishes a particular duty (under public international law) of the state vis à vis its contractual partner, it does not regulate the effectiveness or rank of international treaties within the national legal order. In particular, it does not make all provisions of international treaties general rules of public international law within the meaning of Art. 25 GG that would take precedence over statutory law.

1. cc) Art. 59 sec. 2 sentence 1 GG does not invalidate the principle that (federal) statutes are superseded by later (federal) statutes contradicting them (“lex posterior derogat legi priori”). The legal view claiming the opposite cannot prevail since, inter alia, it contravenes the principles of democracy and parliamentary discontinuity (Grundsatz der parlamentarischen Diskontinuität). Power in democracy is but temporary. It would be irreconcilable with this concept if Parliament could bind its successors and limit their ability to rescind or correct past legislative decisions. This would set political views in stone. Moreover, the legislature is not competent for denouncing international treaties. Hence, Parliament must be able to deviate from international treaties at least within the scope of its competences.

The jurisprudence of the Federal Constitutional Court does not preclude newer federal statutes from superseding provisions of public international law that conflict with them. In particular – and contrary to one legal view [held among legal scholars and by the referring court], the Federal Constitutional Court’s Görgülü order (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 111, 307) did not contain a holding to the effect that the legislature may deviate from international treaties only to protect fundamental constitutional principles. That order did not touch upon the consequences a violation by the legislature of international treaty law might have, but only addressed the legal consequences of regular courts insufficiently taking into account public international law. Moreover, the Görgülü order concerned the importance of the European Convention on Human Rights – a treaty concerning the protection of human rights, a matter that is specifically enshrined in Art. 1 sec. 2 GG.

1. dd) Public international law does not preclude the effectiveness on the national level of legal acts that violate public international law. Although it requires the states to perform in good faith the treaties they have entered into (Art. 26 of the Vienna Convention on the Law of Treaties, VCLT), it only precludes them from invoking national law to justify breaches of international obligations on the level of public international law (Art. 27 sentence 1 VCLT). Thus, public international law leaves it to the states to determine the consequences on the national level of collisions between international treaties and national laws according to the national rules governing the relationship between international and national law as well as those governing the conflict of laws. Hence, states may accord their national law precedence in cases of conflict. Nevertheless, such actions result in a breach of public international law that may yield consequences. Minor infractions generally entitle other states only to denounce the treaty in the cases and under the conditions envisaged in Art. 56 VCLT, to demand that the treaty be properly performed, or – as a subsidiary measure – to demand pecuniary reparation. In case of major infractions, other states parties may be entitled to terminate the treaty or to suspend its operation, irrespective of whether the treaty provides for a right of denunciation (Art. 60 VCLT).
2. ee) Nor does it follow from the unwritten principle of openness to international law that national statutes contravening international treaties are unconstitutional.

The principle of openness to international law has constitutional rank. It can be derived from the system of the constitutional provisions governing the relationship between Germany and the international community (in particular Arts. 23-26 and 59 sec. 2 GG). These provisions reflect the decision of the Basic Law in favour of international cooperation on the basis of respect and promotion of international law.

However, the principle of openness to international law does not entail an absolute constitutional duty to obey all rules of international law. Such an obligation would be contrary to the Basic Law’s differentiating provisions on the domestic rank of international law from which the principle of openness to international law is derived. According to the jurisprudence of the Federal Constitutional Court, the principle in particular serves as a guideline for the interpretation of fundamental rights, the constitutional principles derived from the rule of law, as well as statutory law. The jurisprudence of the Federal Constitutional Court’s chambers has further specified that, within the scope of the applicable methodical principles, one must always choose an interpretation that is favourable to international law. However, the principle of openness to international law […] does not apply in a way that is absolute and independent of the methodical limits of statutory interpretation.

Therefore, Art. 59 sec. 2 sentence 1 GG cannot be interpreted – in a way that is favourable to international law – to mean that the legislature may only in exceptional cases, i.e. only to prevent a violation of fundamental constitutional principles, override obligations under international law. Such an interpretation would be untenable under methodical aspects. This becomes particularly clear looking at double taxation treaties: Since double taxation treaties do not usually violate fundamental constitutional principles, de facto, they would – like the general rules of international law – generally rank above statutory law. However, such an equalisation would contravene the differentiation the constitutional legislature made in Arts. 25 and 59 sec. 2 GG. Interpretation of Art. 59 sec. 2 GG cannot ignore this fact – not even by invoking the principle of openness to international law.

1. ff) Lastly, in contrast to a legal view taken up by the Federal Court of Finance, unilateral treaty overrides are not unconstitutional for violating the rule of law. Interpretations of the Basic Law’s rule of law principle must satisfy the requirements of systematic constitutional interpretation. Interpretations (supposedly) based on the rule of law are limited at least by the Basic Law’s express provisions and by the principle of democracy. Therefore, even limited precedence of international treaty law over statutory law – particularly precedence that would contravene Arts. 25 sentence 2, 59 sec. 2 GG –, or limitations on the “lex posterior principle” cannot be derived from the rule of law principle.
2. b) Measured by these standards, § 50d sec. 8 sentence 1 EStG does not violate the Basic Law – irrespective of whether it truly constitutes a treaty override.

DTT Turkey 1985 is an international treaty. Thus, the standard for the constitutional review of an override of DTT Turkey 1985 is Art. 59 sec. 2 sentence 1 GG. Since, pursuant to Art. 20 sec. 3 GG, the legislature is bound only by the constitutional order and not by statutory law, it can rescind or alter the Act of Assent to DTT Turkey 1985 by passing laws that contravene the content of the double taxation treaty – irrespective of the continued international binding effect of DTT Turkey 1985. As explained, neither the principle of openness to international law nor the rule of law principle yield a different result.

Even if one were to assume that the permissibility of treaty overrides crucially depends on the legislature’ ability to end a (partly) no longer desired treaty in accordance with public international law, this would not render overrides impermissible. For, irrespective of whether denunciation is permissible under international law, the Basic Law does not allow the legislature to denounce international treaties (Art. 59 sec. 1 GG). Therefore, contrary to the view of the Federal Court of Finance, denouncing the double taxation treaty in order to renegotiate it and introduce the legislature’s own concepts does not constitute a less intrusive means of satisfying the principle of democracy.

1. c) § 50d sec. 8 sentence 1 EStG is compatible also with Art. 3 sec. 1 GG. While that provision differentiates between persons who are denied the preferential treatment of being exempted from German taxes because they did not provide the required evidence and persons who furnish such evidence who are exempt, and while § 50d sec. 8 sentence 1 EStG requires such evidence only for income from employment and not for other sources of income, this differentiation is sufficiently justified by a factual reason: By making the tax exemption dependent on providing relevant evidence as stipulated in § 50d sec. 8 sentence 1 EStG, the legislature aimed at counteracting the danger of abuse, which is higher in cases of exemptions for income from employment than in cases of income from other sources.

Separate Opinion of Justice König:

Neither the decision by the Senate’s majority nor its reasoning can convince me. The decision essentially upholds a legal view presented by the Second Senate in its 1957 judgment on the Reichskonkordat. In today’s globalised world, in which the states are linked by a multitude of international treaties that govern a large variety of issues, I hold this legal view (now) to be outdated. Rather, it is necessary to strike an appropriate balance between the principle of democracy on the one hand and the rule of law principle in conjunction with the principle of openness to international law on the other hand.

In striking this balance, one should particularly look at the following criteria: the aim pursued by the later statute as well as its relevance to the common good; the effects on the legal situation of the individuals who benefit from the international provision; the urgency of the deviating provision; the possibility of using reasonable means of ending the international obligation in accordance with public international law, e.g. issuing an interpretative statement, denouncing or modifying the treaty; as well as the legal consequences of a breach of public international law.

The proposed solution leads neither to an unconditional submission of the German legal order to international law, nor to absolute precedence of international law even over constitutional law. However, it obliges the (later) legislature to diligently weigh the various aspects mentioned above before deliberately deviating from an international treaty. Although it is true that Parliament cannot itself denounce or suspend an international treaty, it can express its political intentions and demand that Government take corresponding external steps. Since the proposed solution does not have a general “blocking effect”, it does not undermine the systematic concept of Arts. 25 and 59 sec. 2 GG. The legislature retains the competence to override international treaties, which flows from the principle of democracy; however, the rule of law interpreted in light of the principle of openness to international law gives rise to limitations concerning the exercise of this competence.

According to these standards, § 50d sec. 8 sentence 1 EStG as amended by the 2003 Tax Amendment Act would not be compatible with the Basic Law. It constitutes a treaty override in violation of international law. In weighing the abovementioned criteria, it is the aspects arguing for the unconstitutionality of the treaty override that hold more weight. In particular, the treaty could have been denounced and renegotiated, as eventually happened in 2011.

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The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Order of 03 November 2015
2 BvR 2019/09

By order published today, the Second Chamber of the Second Senate of the Federal Constitutional Court did not admit for decision a constitutional complaint lodged by a German company against the service of process in Germany of an action for damages brought in the United States of America. The constitutional complaint is directed against an order by the Düsseldorf Higher Regional Court (Oberlandesgericht) confirming that serving the action in Germany pursuant to the Hague Service Convention of 1965 was in compliance with the law. The complainant’s initial application [to reverse the Higher Regional Court’s order] has become moot after the U.S. courts, following the U.S. Supreme Court’s decision in the Kiobel case, had dismissed the action, and those decisions have become final. As the initial application has become moot, the necessary recognised legal interest in lodging a constitutional complaint is now lacking. The present case does not fall within the categories for which it is established under constitutional law that such an interest must be recognised by way of exception even after the initial application has become moot.

Facts of the Case and Procedural History:

The complainant is a corporation operating internationally as automotive supplier and arms manufacturer and also maintains two sites in the U.S.A. In November 2002, together with other multinational concerns, it was sued for damages by a group of South African plaintiffs in a class action before a court in the United States of America for aiding and abetting in human rights violations committed by the apartheid regime in South Africa. The plaintiffs invoked the Alien Tort Claims Act (ATCA), pursuant to which U.S. federal courts have original jurisdiction in civil actions brought by foreigners on tort acts committed in violation of international law or international treaties to which the United States is a member.

In April 2009, the U.S. District Court seized of the matter admitted the action to a limited extent but explicitly reserved its decision on personal jurisdiction and on the question of proper service for later. A U.S. Court of Appeals suspended the proceedings until decision of proceedings Kiobel et al. v. Royal Dutch Petroleum Co. et al. at that time already pending before the U.S. Supreme Court. In its judgment of 17 April 2013, the Supreme Court dismissed the Kiobel action for lack of jurisdiction of U.S. District Courts. It held that there was a presumption against extraterritorial application of laws (presumption against extraterritoriality), unless the legislature had specifically provided for such application. It further stated that even if claims touched and concerned the territory of the U.S.A., their link to the United States had to be strong enough to displace the presumption against the extraterritorial application of the ATCA. As a consequence, in December 2013, the District Court dismissed the action against the complainant in the present case. That decision has become final since then.

In Germany, the Düsseldorf Local Court (Amtsgericht), upon decree by the president of the Düsseldorf Higher Regional Court, served the action in July 2003. The Düsseldorf Higher Regional Court rejected the appeal against the service in its order of 22 July 2009 as unfounded. This order is challenged via the constitutional complaint.

Key Considerations of the Chamber:

The constitutional complaint is inadmissible.

1. The complainant’s initial application has become moot. After the final dismissal of the action in the United States, the complainant lacks the interest as well as the possibility to claim invalidity of the service of process.
2. Since the initial application has become moot, the complainant lacks the recognised legal interest in lodging a constitutional complaint that is necessary to further pursue the constitutional complaint. Only by way of exception and in particular cases can a legal interest in lodging a constitutional complaint still be recognised under such circumstances. The mere fact that the complainant is adversely affected by the decision on costs is not sufficient in this regard. The Federal Constitutional Court only acknowledges a continuing legal interest in lodging a constitutional complaint if the complainant, based on the risk of repetition of the challenged conduct, has a legitimate interest in the statement that the challenged act or omission was unconstitutional, or if there has been a profound and particularly severe interference with fundamental rights, or if otherwise a constitutional issue of general significance would not be clarified, and a severe interference with fundamental rights is asserted. These requirements are not met in the present case.
3. a) With regard to a risk of repetition, under constitutional law, the complainant does not have a legally recognised interest in having the challenged order reviewed for its compatibility with the Constitution. There is no indication that, as the complainant assumes, it will again have to face court proceedings in the United States in the future. Comments on the Kiobel judgment rendered by the US Supreme Court concur in that, in the future, the ATCA will no longer be applicable to circumstances as in the present case where foreign plaintiffs file suits against foreign defendants for violations of international law in a foreign country and that, therefore, comparable actions before U.S. federal courts are no longer to be expected.
4. b) Nor is there a profound and particularly severe interference with fundamental rights. Such interferences are mainly those which the Basic Law has made subject to a judicial decision, as for example the search of a person’s house or detention pending deportation. Service of process that jeopardizes mere financial interests of the complainant is not comparable to such interferences.
5. c) Finally, nor can a continuing recognised legal interest in lodging a constitutional complaint be derived from the assumption that an issue of general constitutional significance requires clarification. To the extent relevant for the decision in the present case, there are no constitutional concerns against the Hague Service Convention, which has been integrated into the German legal order by Act of 22 December 1977. For the present case there is no need to clarify whether the service of process in Germany of an action pending in a foreign country would be compatible with Art. 2 sec. 1 of the Basic Law (Grundgesetz – GG) in conjunction with the rule of law (Rechtsstaatsprinzip) if the objective pursued by the action obviously violated indispensable principles of a free state under the rule of law. The legal institutions (Rechtsinstitute) used and rules applied in the U.S. court proceedings against the complainant neither individually nor taken together constitute such an obvious violation.

In its jurisprudence, the Federal Constitutional Court has already adjudicated on some of these legal institutions: for example, it held that an action for punitive or exemplary damages under U.S. law does not per se violate indispensable rule-of-law principles. This also applies to the legal policy decision to permit class actions for tortious acts with a large group of people having sustained damages, a legal institution that must be generally respected by the German side. In such actions, an individual member of the “class” does not have to participate, as long as indispensable rights of defence are complied with. Nor does according to the Federal Constitutional Court’s jurisprudence a pre-trial discovery held between commencement of an action and the oral hearing constitute per se a violation of indispensable principles of a free state under the rule of law.

The obligation to respect these legal institutions might find its limits where proceedings in foreign courts are obviously being misused. There is, however, no evidence to indicate that the claim before the court is – at least in its amount – obviously without substance, that the defendant does obviously not have anything to do with the challenged conduct, or that considerable pressure, also by the media, is applied forcing the complainant to accept an unjustified settlement. Nor can it be ruled out from the outset that the complainant as a legal person under private law can be held responsible under international law. According to one view held in international law doctrine, a core of basic human rights obligations exists that also apply to individual natural persons or legal persons under private law and which, in case they are violated, might entail sanctions under international law. It cannot be completely ruled out that such violations might cause liability under private law. Therefore, the mere attempt to enforce such liability before the courts is not in itself sufficient to indicate obvious abuse of legal rights.

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The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Judgment of 23 September 2015

In a decision pronounced today, the Second Senate of the Federal Constitutional Court further specified the constitutional standards applying to the Bundestag’s right to participate in decision-making concerning deployments of armed German forces abroad. All deployments of armed military forces require parliamentary approval; there is no additional requirement that the deployment be of a certain military importance. In cases of imminent danger, the Federal Government may, by way of exception and for the time being, decide upon deployments alone. However, it is under the obligation to seek the Bundestag’s approval for continuing the deployment as soon as possible. Should the deployment in question already be over, the Federal Government must inform the Bundestag promptly and in a qualified manner of the reasons for its decision and the details of the deployment; yet, it is not obliged to seek retrospective approval by the Bundestag.

Therefore, the application for Organstreit (dispute between federal organs) proceedings lodged by the parliamentary group of ALLIANCE 90 / THE GREENS (BÜNDNIS 90 / DIE GRÜNEN) is unsuccessful. The evacuation of German citizens from Libya on 26 February 2011 constituted a deployment of armed military forces, which required parliamentary approval but was over before Parliament could be called upon.

Facts of the Case:

The Organstreit proceedings concern the issue of whether the Federal Government violated the rights of the Bundestag by not seeking its retrospective approval for deploying Bundeswehr (German armed forces) soldiers to evacuate German citizens from Libya on 26 February 2011. For further details concerning the facts of the case please see press release no. 105/2014 of 25 November 2014 (translator’s note: This press release is available only in German).

Key Considerations of the Senate:

1. a) The requirement of parliamentary approval for deployments of armed military forces (Parlamentsvorbehalt), which applies directly by virtue of the Constitution, gives the Bundestag the right to participate in decision-making concerning such deployments. In principle, parliamentary approval must be obtained before the deployment commences. The requirement of parliamentary involvement is not limited to deployments of armed military forces within systems of collective security but applies to all deployments of armed German forces abroad.
2. b) Considering its function and importance, the requirement of parliamentary approval enshrined in the Constitution’s provisions on armed forces must be interpreted in favour of Parliament. In particular, the issue of whether parliamentary approval is necessary cannot depend on the political or military evaluations and prognoses of the Federal Government – this holds true even in cases of imminent danger. Where the Constitution assigns a competence to the Bundestag in the form of a right to participate in decision-making in military matters, there is no room for independent decisions of the Federal Government.
3. a) According to the jurisprudence of the Federal Constitutional Court, Parliament must be involved in cases concerning “deployments of armed military forces”. Deployments fall within this definition if German soldiers are involved in armed activities. For making this determination, it is irrelevant whether there already is armed combat. What is decisive is whether there is a specific expectation that German soldiers will become involved in armed hostilities. Such a specific expectation must be based on tangible factual circumstances indicating that a deployment, taking into account its purpose, the particular political and military situation as well as the powers of the deployed forces, may lead to the use of armed force. Furthermore, the situation has to be such that involvement of German soldiers in armed hostilities is to be expected immediately. This can also be the case if the operational planning and the powers of the deployed forces indicate that due to the overall situation involvement of German soldiers in armed combat is probable and only depends on coincidences within the chain of factual events. The fact that the deployed soldiers are armed and authorised to use their weapons can serve as indicator for an impending involvement of German soldiers in armed hostilities. However, as long as the authorisation to use force is limited to cases of self-defence and the deployment is of a non-military nature, this authorisation alone does not lead to the deployment requiring parliamentary approval.
4. b) In principle, every deployment of armed German forces requires constitutive parliamentary participation. Even though the requirement of parliamentary approval was conceived having in mind the historic image of entry into a war, it is not limited to actual wars or war-like deployments abroad. The constitutive parliamentary participation provided for by the Constitution does not require that deployments envisaged by the Federal Government fulfil the historic image of entry into a war. Apart from the specific expectation of involvement in armed hostilities, deployments of armed forces do not need to be of particular military importance and do not need to aim at the offensive use of armed force in order to require parliamentary approval; a humanitarian purpose does not per se suspend the requirement of parliamentary approval. In principle, even deployments that evidently are of little importance and scope or of minor political importance may require parliamentary approval under the Constitution.
5. a) As a rule, the Constitution prohibits deployments of armed military forces without prior parliamentary approval. Thus, the Federal Government and the Bundestag must ensure that, in general, parliamentary approval is obtained before the decision to use armed force is taken and that no such decision is taken before approval proceedings have been completed.
6. b) In cases of imminent danger, the Federal Government may, by way of exception, preliminarily order armed military forces to be deployed without prior parliamentary approval. In order for a deployment to be continued, however, the Bundestag must approve it as soon as possible. This required immediate involvement of Parliament after a deployment has begun does not have the legal effects of a retrospective approval, namely that if such retrospective approval were denied, the deployment would have been illegal from the beginning on. The Federal Government’s emergency decision rather has the same legal effects as a decision taken in the usual order of things, with prior approval of the Bundestag. Therefore, in cases of deployments initiated by emergency decision of the Federal Government, parliamentary approval is constitutive only for the future. Denial of parliamentary approval obliges the Federal Government to terminate the deployment and to withdraw the forces deployed.
7. The issues of whether German soldiers were involved in armed activities and whether there was imminent danger are subject to full review by the Federal Constitutional Court. In particular, constitutional review of the criterion of imminent danger does not exceed the judiciary’s functions. Limitations of this kind are acknowledged when it comes to political discretion in the field of foreign policy as well as in defence matters. However, the Federal Government’s factual and legal evaluation in assuming imminent danger is no political decision but a determination of whether a factual situation fulfils the legal requirements of an emergency power that permits the Federal Government to take a preliminary (political) decision on an armed deployment of the Bundeswehr abroad – this determination can be reviewed using objective criteria. The legality of the decision depends on the facts known to the Federal Government at the time.
8. a) There is no room for constitutive parliamentary approval if Parliament cannot influence a deployment of armed military forces ordered by the Federal Government under its emergency powers for cases of imminent danger because it was over before parliamentary approval could be sought. Despite the subsidiary nature of the Federal Government’s emergency power, the Federal Government’s emergency decision to deploy armed military forces does not require retrospective approval by the Bundestag in order to be effective and legal. Moreover, it does not pertain to the Bundestag to judge the legality of executive actions. Therefore, retrospective decisions by Parliament are of no legal value. Thus, the constitutional requirement of parliamentary approval does not require the Federal Government to seek a Bundestag decision upon completed deployments.
9. b) However, the Bundestag as well as its committees are tasked with exercising parliamentary oversight over deployments of armed military forces that were initiated by emergency decision of the Federal Government because of imminent danger and that were over before Parliament could be involved. It follows from the constitutional requirement of parliamentary approval that the Federal Government must inform the Bundestag promptly and in a qualified manner about completed deployments of armed forces. This obligation of formal information concerns the relevant factual and legal considerations the Federal Government’s decision to deploy armed military forces is based on as well as the details and the outcome of this deployment. The Bundestag must be informed of all relevant matters. The amount of detail required depends on the deployment’s military and political importance. Furthermore, the information must be provided as soon as possible. Moreover, the Federal Government must inform Parliament in an effective way. In principle, the information must be provided to the Bundestag as a whole in order to enable all of its members to access the information. As a rule, information must be provided in writing. This requirement ensures that the information provided to the members of the Bundestag is clear, complete and can be easily reproduced.
10. According to these standards, the evacuation of German citizens from the Libyan town of Nafurah conducted by Bundeswehr soldiers on 26 February 2011 constituted a deployment of armed military forces within the meaning of the constitutional requirement of parliamentary approval. However, the respondent was not obliged to retrospectively seek the Bundestag’s legally non-binding political approval of the completed operation. The Organstreitproceedings at hand do not concern a possible violation of the parliamentary right to promptly receive qualified information on the completed deployment of armed military forces. Even though an application aimed at establishing a violation of competences may also include an application of smaller scope aimed at establishing a violation of a right to information that is linked to the competence in question, the applicant has neither in its application nor in the reasons provided expressly claimed a violation of the Federal Government’s duty to inform. Nor does the application’s true purpose, which must be determined by way of interpretation, give reason to believe that the applicant desired such a violation to be established.

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The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

– 2 BvR 987/10 – – 2 BvR 1485/10 – – 2 BvR 1099/10 –

Headnotes to the judgment of the Second Senate of 7 September 2011

1. Article 38 of the Basic Law protects the citizens with a right to elect the Bundestag from a loss of substance of their power to rule, which is fundamental to the structure of a constitutional state, by far-reaching or even comprehensive transfers of duties and powers of the Bundestag, above all to supranational institutions (BVerfGE 89, 155 <172>; 123, 267 <330>). The defensive dimension of Article 38.1 of the Basic Law takes effect in configurations in which the danger clearly exists that the competences of the present or future Bundestag will be eroded in a manner that legally or de facto makes parliamentary representation of the popular will, directed to the realisation of the political will of the citizens, impossible.
2. a)The decision on public revenue and public expenditure is a fundamental part of the ability of a constitutional state to democratically shape itself (see BVerfGE 123, 267 <359>). The German Bundestag must make decisions on revenue and expenditure with responsibility to the people. In this connection, the right to decide on the budget is a central element of the democratic development of informed opinion (see BVerfGE 70, 324 <355-356>; 79, 311 <329>).b) As representatives of the people, the elected Members of the German Bundestag must retain control of fundamental budgetary decisions even in a system of intergovernmental administration.
3. a) The German Bundestag may not transfer its budgetary responsibility to other actors by means of imprecise budgetary authorisations. In particular it may not, even by statute, deliver itself up to any mechanisms with financial effect which – whether by reason of their overall conception or by reason of an overall evaluation of the individual measures – may result in incalculable burdens with budget relevance without prior mandatory consent.b) No permanent mechanisms may be created under international treaties which are tantamount to accepting liability for decisions by free will of other states, above all if they entail consequences which are hard to calculate. Every large-scale measure of aid of the Federal Government taken in a spirit of solidarity and involving public expenditure on the international or European Union level must be specifically approved by the Bundestag.c) In addition it must be ensured that there is sufficient parliamentary influence on the manner in which the funds made available are dealt with.
4. The provisions of the European treaties do not conflict with the understanding of national budget autonomy as an essential competence, which cannot be relinquished, of the parliaments of the Member States, which enjoy direct democratic legitimation, but instead they presuppose it. Strict compliance with it guarantees that the acts of the bodies of the European Union in and for Germany have sufficient democratic legitimation (BVerfGE 89, 155 <199 ff.>; 97, 350 <373>). The treaty conception of the monetary union as a stability community is the basis and subject of the German Consent Act (BVerfGE 89, 155 <205>).
5. With regard to the probability of having to pay out on guarantees, the legislature has a latitude of assessment which the Federal Constitutional Court must respect. The same applies to the assessment of the future soundness of the federal budget and the economic performance capacity of the Federal Republic of Germany.

FEDERAL CONSTITUTIONAL COURT– 2 BvR 987/10 – – 2 BvR 1485/10 – – 2 BvR 1099/10 –

Pronounced on 7 September 2011 Wolf Amtsinspektorin as Registrar of the Court Registry

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

I.	1. of Prof. Dr. Wilhelm Hankel,
	2. of Prof. Dr. Wilhelm Nölling,
	3. of Prof. Dr. Karl Albrecht Schachtschneider,
	4. of Prof. Dr. Dr. h.c. Dieter Spethmann,
	5. of Prof. Dr. Dr. h.c. Joachim Starbatty,

– authorised representative
for 1, 2, 4, 5:

Prof. Dr. Karl Albrecht Schachtschneider,
Treiberpfad 28, 13469 Berlin –

1) against

the monetary policy of the Federal Republic of Germany (aid for Greece) for violation of the fundamental rights of the complainants under Article 38.1, Article 14.1 and Article 2.1 of the Basic Law (Grundgesetz – GG)

– 2 BvR 987/10 –,

2) against a)	the Federal Republic of Germany because it agreed financial aid for the Hellenic Republic with the other members of the Eurogroup, grants financial aid for Greece, in particular by means of the Act on the assumption of guarantees to preserve the solvency of the Hellenic Republic necessary for financial stability within the Monetary Union (Gesetz zur Übernahme von Gewährleistungen zum Erhalt der für die Finanzstabilität in der Währungsunion erforderlichen Zahlungsfähigkeit der Hellenischen Republik, Währungsunion-Finanzstabilitätsgesetz – WFStG, Act on Financial Stability within the Monetary Union) of 7 May 2010 <Federal Law Gazette (Bundesgesetzblatt – BGBl.) I p. 537>), guarantees loans from the Kreditanstalt für Wiederaufbau to the Hellenic Republic and induces the International Monetary Fund to support Greece financially,
b)	agreements of the European Union, in particular of the Eurogroup, in which financial aid for the Hellenic Republic was agreed, inter alia by the Federal Republic of Germany,
c)	the decision of the representatives of the governments of the Member States of the European Union, in particular of the governments of the Eurogroup, meeting within the Council of the European Union, of 10 and 9 May 2010 (Council Document 9614/10) and the decision of the Council of the European Union (Economic and Financial Affairs, ECOFIN) of 9 May 2010 to create a European Financial Stabilisation Mechanism, including the Conclusions of this Council (Rat-Dok. (Council Document) SN 2564/1/10 REV 1),
d)	Council Regulation (EU) no. 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ L 118/1),
e)	the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism (Gesetz zur Übernahme von Gewährleistungen im Rahmen eines europäischen Stabilisierungsmechanismus – StabMechG – Euro Stabilisation Mechanism Act) of 21 May 2010 (Federal Law Gazette I p. 627),
f)	the EFSF Framework Agreement between the Member States of the Eurogroup and the European Financial Stability Facility, EFSF, of 7 June 2010,
g)	the establishment of the special purpose vehicle (European Financial Stability Facility, EFSF, a société anonyme incorporated in Luxembourg, with its registered office in Luxembourg) to handle the rescue measures for ailing state budgets of members of the Eurogroup and Germany’s participation in this special purpose vehicle,
h)	the practice of the European Central Bank of buying up government bonds of the members of the Eurogroup and refinancing government bonds of every kind of the members of the Eurogroup,

– 2 BvR 1485/10 –,

II.	of Dr. Peter Gauweiler,

– authorised representatives:

1. Prof. Dr. Dietrich Murswiek,
   Lindenaustraße 17, 79199 Kirchzarten,
2. Prof. Dr. Wolf-Rüdiger Bub,
   Promenadeplatz 9, 80333 München –

against a)	the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism of 22 May 2010 (Federal Law Gazette I p. 627),
b)	the cooperation of the Federal Government in the intergovernmental decisions of the representatives of the governments of the euro area member states meeting within the Council of the European Union and of the representatives of the governments of the 27 EU Member States of 10 May 2010 (Council Document 9614/10) and in the decision of the Council of the EU of 9 May 2010 to create a European Stabilisation Mechanism (Conclusions of the Council [Economic and Financial Affairs] of 9 May 2010, Rat-Dok. SN 2564/1/10 REV 1 of 10 May 2010, p. 3) and in the decision of the Council on Council Regulation No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ L 118/1),
c)	the decisions of the Council of the European Union named under b) and the Council Regulation named under b),
d)	the purchase of government bonds of Greece and other euro area Member States by the European Central Bank,
e)	the cooperation of the Federal Government in the extra-treaty supplementation of the concept, laid down in the Treaty on the Functioning of the European Union, to ensure the price stability of the euro; this cooperation consists in the acts named under b) of cooperating in the decisions of the EU or of the Member States on the European Stabilisation Mechanism in conjunction with the cooperation in the decisions made within the European Union or between the euro area Member States on the Greek rescue package, the German part of which was implemented in the Act on the assumption of guarantees to preserve the solvency of the Hellenic Republic necessary for financial stability within the Monetary Union (Gesetz zur Übernahme von Gewährleistungen zum Erhalt der für die Finanzstabilität in der Währungsunion erforderlichen Zahlungsfähigkeit der Hellenischen Republik, Währungsunion-Finanzstabilitätsgesetz – WFStG, Act on Financial Stability within the Monetary Union) of 7 May 2010 (Federal Law Gazette I p. 537),
f)	the failure of the Commission and the Council of the European Union to use the measures provided in the Treaty on the Functioning of the European Union against the overindebtedness of euro area Member States and against its disregard of the budgetary discipline laid down in the Treaty and in this way to prevent the coming into existence of a state of emergency which is now used to justify the rescue packages which are incompatible with the Treaty (Greek rescue package and European Stabilisation Mechanism),
g)	the failure of the Federal Government to take measures against the speculators who in its representation speculate so aggressively against the euro or against particular euro area Member that the rescue packages are necessary to preserve the stability of the currency

– 2 BvR 1099/10 –

the Federal Constitutional Court – Second Senate – with the participation of

Justices Voßkuhle (President),
Di Fabio,
Mellinghoff,
Lübbe-Wolff,
Gerhardt,
Landau,
Huber, and
Hermanns

on the basis of the oral hearing of 5 July 2011 by

Judgment

holds as follows:

1. The proceedings are dealt with together for a joint decision.
2. The constitutional complaints are rejected as unfounded.

Grounds:

A.

1

The constitutional complaints challenge German and European legal instruments and further measures which are related to attempts to solve the current financial and sovereign debt crisis in the area of the European monetary union.

I.

2

1. The Treaty on European Union (Maastricht Treaty) of 7 February 1992 (OJ C 191/1; Federal Law Gazette II p. 1253) provided for a common monetary policy of the Member States, which was in stages to create a European monetary union and finally to communitarise the monetary policy in the hands of a European System of Central Banks (ESCB) (for an earlier decision on the following facts, see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 125, 385 ff.). In the third stage, the euro was introduced in 2002 as the single currency. In order to guarantee financial discipline to support the uniform monetary policy, at the same time the Stability and Growth Pact (Resolution of the European Council on the Stability and Growth Pact, Amsterdam, 17 June 1997, OJ C 236/1) entered into force; in the interest of the stability of the euro, this provides for new borrowing at a maximum rate of 3% of the gross domestic product (GDP) and a maximum level of indebtedness of 60% of the GDP.

3

2. The Hellenic Republic (hereinafter Greece) has since 2001 been a member of the group of 16 (since January 2011: 17) of the 27 Member States of the European Union (Council Decision 2000/427/EC of 19 June 2000 in accordance with Article 122(2) of the Treaty on the adoption by Greece of the single currency on 1 January 2001, OJ L 167/19) whose single currency is the euro (Eurogroup). The details of the size of the Greek budget deficit in the year 2009 had to be corrected from 5% to almost 13% of the GDP, for 2010, an increase of the national debt to 125% of the GDP and thus more than twice the reference level of 60% of the GDP was expected (see press release of the Economic and Financial Affairs Council <ECOFIN Council>, 16 February 2010).

4

3. Against this background, the European Council of the heads of state and government met in Brussels on 11 February 2010 in order to deliberate on possible measures relating to Greece. On this occasion, the European Council announced that it would take determined and coordinated action, if needed, to safeguard financial stability in the euro area as a whole (see Statement by the Heads of State or Government of the European Union, 11 February 2010). On 16 February 2010 the ECOFIN Council tightened the excessive deficit procedure against Greece which had been introduced in April 2009 and called for the deficit to be reduced by 4 percentage points within one year (from 12.7% in the year 2009 to 8.7% in the year 2010) and to further reduce it by 2012 to a maximum of 3% of the GDP (see press release of the ECOFIN Council, 16 February 2010). Following growing unrest on the financial markets, on 25 March 2010 the heads of state and government of the euro countries declared that they were prepared to support Greece in addition to financing by the International Monetary Fund (IMF) with their own bilateral loans (see Statement by the Heads of State and Government of the Euro Area, 25 March 2010). Evidently this statement also failed to convince the financial markets with lasting effect. After the Fitch Ratings Agency downgraded its rating for Greece to BBB- on 9 April 2010 and the risk surcharges on Greek government bonds rapidly reached record levels, on 11 April 2010 the Euro area finance ministers reached agreement on the structure of the aid for Greece, to be granted in the form of bilateral loans from states in the euro area, and on its extent and the interest rate. In order set incentives for Greece to return to market financing, the IMF’s pricing formula, with certain adjustments, was to be used as the reference rate to determine the conditions of the bilateral state loans. On 12 April 2010, the EU Commission, in consultation with the European Central Bank (ECB), entered into negotiations with the IMF and Greece, in which the conditions of the Greek rescue package were specified. The support was to be activated at the moment when it was actually needed, and needed above all to satisfy its liabilities on the bond markets. The participating states were then to decide on the disbursements (see Statement on the support to Greece by Euro area Member States, 11 April 2010).

5

4. On 23 April 2010, Greece applied for financial aid from the EU and the IMF (see Joint statement by European Commission, European Central Bank and Presidency of the Eurogroup on Greece, IP/10/446, 23 April 2010). Thereupon, on 2 May 2010, the states of the Eurogroup declared that they were ready, in the context of a three-year IMF programme with an estimated total financing requirement in the amount of 110 billion euros, to provide up to 80 billion euros as financial aid to Greece in the form of coordinated bilateral loans, up to 30 billion euros of which would be provided in the first year (see Statement by the Eurogroup, 2 May 2010). The shares of the individual states in the loans are based on the respective shares of the euro area Member States in the capital of the ECB. Germany’s share as one of the 15 states which formed the Eurogroup at the time (without Greece) was to be 27.92% (see draft bill of the CDU/CSU and FDP parliamentary groups, Bundestag printed paper (Bundestagsdrucksache , BTDrucks) 17/1544, p. 4). The German share of the credits was therefore, if all Eurogroup states (apart from Greece) participated, approximately 22.4 billion euros, up to 8.4 billion euros of which was payable in the first year. The IMF was to take a share of 30 billion euros (see draft bill of the CDU/CSU and FDP parliamentary groups, BTDrucks 17/1544, p. 1). The financial aid from the Eurogroup is provided subject to strict conditionality which was agreed between the IMF and the EU Commission (in consultation with the ECB) and Greece. The arrangements between the states of the Eurogroup with Greece and between themselves consist of two agreements. On the one hand there is the Loan Facility Agreement between the states of the euro area and Greece, which essentially establishes the loan conditions and requirements for granting the loan, and on the other hand the Intercreditor Agreement, an agreement between the Member States of the euro area which lays down the rights and duties of the Member States between themselves. Both agreements, with regard to Greece’s measures of financial and economic policy, relate to the Memorandum of Understanding entered into with Greece (see Greece: Memorandum of Understanding on Specific Economic Policy Conditionality, 2 May 2010), which lays down the conditions for granting loans and in particular makes the disbursement of the financial aid conditional on strict requirements with regard to budget consolidation. The disbursement of the individual tranches is therefore coupled to compliance with quantitative performance criteria. Thus, detailed savings goals are laid down for each quarter; these must be achieved by means of measures such as tax increases or the cancellation of bonuses in the civil service (see Greece: Memorandum of Understanding on Specific Economic Policy Conditionality, 2 May 2010, p. 1). The Intercreditor Agreement also provides for internal balancing of interest and disbursements for financially ailing lender countries. As a result, a lender which has higher refinancing costs than the borrower’s interest under the loan agreement may require that it is granted an adjustment of interest which is financed pro rata from the interest revenue of the other lenders. In addition, if it has higher refinancing costs than the borrower’s interest under the loan agreement, a lender may apply not to take part in the disbursement of the next tranche. The other lenders decide on this application by a two-thirds majority of their capital shares. As soon as this lender again has lower refinancing costs than the borrower’s interest, it is provided that its share of the loan should again be adjusted to the share provided in the loan agreement. No lender is responsible for the commitments of another lender.

6

5. In order to take the necessary measures on a national level, on 7 May 2010 the German Bundestag passed the challenged Act on the assumption of guarantees to preserve the solvency of the Hellenic Republic necessary for financial stability within the Monetary Union (Act on Financial Stability within the Monetary Union – WFStG, Federal Law Gazette I p. 537). The provisions of the Act on Financial Stability within the Monetary Union are as follows:

7

§ 1 – Guarantee authorisation

8

(1) The Federal Ministry of Finance is authorised to give guarantees up to the total amount of 22.4 billion euros to the Hellenic Republic; these are necessary as emergency measures to preserve the solvency of the Hellenic Republic in order to ensure financial stability in the monetary union. The guarantee serves to safeguard loans of the Kreditanstalt für Wiederaufbau to the Hellenic Republic, which are to be disbursed together with the loans of the other Member States of the European Union whose currency is the euro and of the International Monetary Fund. It is based on the measures agreed between the International Monetary Fund, the European Commission on behalf of the Member States of the European Union and the Hellenic Republic, with the cooperation of the European Central Bank. The loans from the Kreditanstalt für Wiederaufbau are to be disbursed in the first year up to the amount of 8.4 billion euros.

9

(2) A guarantee is to be applied against the maximum amount thus authorised in the amount in which the Federal Government can be called upon under the guarantee. Interest and costs are not to be charged on the amount authorised.

10

(3) Before guarantees are given under subsection 1, the German Bundestag ‘s budget committee must be informed, unless for compelling reasons an exception is advisable. In addition, the German Bundestag ‘s budget committee is to be informed quarterly on the guarantees given and their correct use.

11

§ 2 – Entry into force

12

This Act shall enter into force on the day after it is promulgated.

13

6. The share of the aid measures assumed by Germany will be lent by the Kreditanstalt für Wiederaufbau (KfW), which requires a Federal Government guarantee for this. § 1.1 of the Act on Financial Stability within the Monetary Union authorises the Federal Ministry of Finance to give guarantees of this nature, which secure the granting of the guarantee by the KfW.

14

7. On the same day, 7 May 2010, the heads of state and government of the Eurogroup met again in Brussels and inter alia stated that they were in favour of strengthening economic governance in the euro area and regulating the financial markets more intensively and combating speculation (for an earlier decision on the following facts, see BVerfGE 126, 158 <160 ff.>). They reaffirmed their determination to exploit all means to preserve the stability of the euro area. For this purpose they agreed inter alia that the EU Commission should propose a European stabilisation mechanism to preserve the stability of the financial markets in Europe (euro rescue package). Thereupon, on 9 May 2010, the ECOFIN Council passed a resolution to create a European stabilisation mechanism, which consists of two parts: the European Financial Stabilisation Mechanism (EFSM), based on an EU regulation, on the one hand and the European Financial Stability Facility (EFSF), a special purpose vehicle based on an inter-state agreement between the Member States of the Eurogroup to grant loans and credit lines, on the other hand. These instruments are intended to give financial assistance to Member States which are in difficulties caused by exceptional occurrences beyond their control (see the “Agreement on Conditions” on the “central structural elements of the EFSF”). The ECB also agreed to be involved in the new approach by resolving on a “securities markets programme”. Inter alia , the ECB Governing Council in this connection authorised the national central banks of the Eurosystem to purchase on the secondary market debt instruments issued by central governments or public entities of the Member States (OJ L 124/8).

15

8. Council Regulation No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ L 118/1) is based on Article 122.2 of the Treaty on the Functioning of the European Union (TFEU). This provides that where a Member State is in difficulties or is seriously threatened with severe difficulties caused by exceptional occurrences beyond its control, it may be granted European Union financial assistance. The Council is of the opinion that the exceptional situation consists in the fact that the intensification of the global financial crisis has led to a grave deterioration for more than one Member State of the Eurogroup, which exceeds what can be explained by fundamental economic data. The European Financial Stabilisation Mechanism is to remain in effect for as long as is necessary to preserve the stability of the financial markets and is to have a total financial volume of up to 60 billion euros, which makes it necessary for the EU to borrow. The Regulation lays down the details of the conditions and procedures under which a Member State may be granted financial assistance by the EU. The decision on the grant of financial assistance is made by the Council on a proposal of the EU Commission, by a qualified majority.

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9. In addition to the introduction of the EFSM, the heads of state and government of the Eurogroup agreed to support each other financially through a special purpose vehicle, the EFSF. A special purpose vehicle is a legal person or an entity equivalent to a legal person which is usually founded for a quite specific purpose and is dissolved after this purpose has been achieved. It was resolved that the participating Member States, paying due regard to their constitutional provisions, guarantee the special purpose vehicle in proportion to their share of the paid-in capital of the ECB (see Decision of the Representatives of the Governments of the Euro Area Member States Meeting within the Council of the European Union, of 9 May 2010, Council Document 9614/10). The EU Commission may, through the EFSF, be tasked by the Member States of the Eurogroup (see Decision of the Representatives of the Governments of the 27 EU Member States of 9 May 2010, Council Document 9614/10).

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10. With regard to this special purpose vehicle, which at this date had not yet been founded, first of all framework conditions were agreed (“Agreement on Conditions”): The shareholders are all Member States of the Eurogroup; every Member State of the Eurogroup delegates one director to the board of the company, and in addition the EU Commission delegates an observer. The special purpose vehicle is to be founded under Luxembourg law. Its purpose is to issue bonds and to grant loans and credit lines to cover the financing requirements, subject to conditions, of Member States of the Eurogroup who are in difficulties. The guarantees for the special purpose vehicle in the amount of 440 billion euros will be shared among the Member States of the Eurogroup in proportion to their share of the capital of the ECB; the liabilities of the Member States under the guarantee are limited to their share plus 20% for each bond issue. The increase of up to 20% results from the fact that not all Eurogroup Member States will be involved in all bond issues. The decisions will be made unanimously; the life of the special purpose vehicle is limited to three years from its foundation, irrespective of the date of maturity of loans granted or bonds issued by the special purpose vehicle and of guarantees given by Eurogroup Member States.

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11. In addition, a framework agreement is to be entered into between the Eurogroup participating states and the proposed special purpose vehicle; this will govern the details of the issue of bonds on the capital market by the special purpose vehicle, of the declaration of guarantee of the Eurogroup states and of the terms of the loan extension (see EFSF Framework Agreement, draft of 20 May 2010). On the basis of Germany’s share in the ECB capital, the German share of the guarantee volume was to be 123 billion euros; in cases of unforeseen and absolute need, it was anticipated that the amount might be exceeded by 20% (see draft bill of the CDU/CSU and FDP parliamentary groups, BTDrucks 17/1685, p. 1). The total volume of the stabilisation instruments in the amount of 750 billion euros is calculated on the basis of the volume of the EFSM in the amount of 60 billion euros, the volume of the EFSF in the amount of 440 billion euros and the (expected) participation of the IMF in the amount of half of the sums named, that is a further 250 billion euros (see Conclusions of the ECOFIN Council of 9 May 2010, Rat-Dok. SN 2564/1/10 REV 1).

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12. In order to create the conditions on a national level to give financial support through the special purpose vehicle (EFSF), on 21 May 2010 the German Bundestag passed the challenged Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism (hereinafter: Euro Stabilisation Mechanism Act, Federal Law Gazette I p. 627). After the Bundesrat had resolved on the same day not to refer the bill to the Mediation Committee, the Act was promulgated on 22 May 2010. The provisions of the Euro Stabilisation Mechanism Act are as follows:

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§ 1

21

Guarantee authorisation

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(1) The Federal Ministry of Finance is authorised to give guarantees up to a total amount of 123 billion euros for loans which are raised by a special purpose vehicle founded or commissioned by the euro area Member States to finance emergency measures to preserve the solvency of a euro area Member State, provided these emergency measures for the preservation of the solvency of the affected Member State are necessary to ensure financial stability in the monetary union. The condition is that the affected Member State has agreed an economic and financial policy programme with the International Monetary Fund and the European Commission with the cooperation of the European Central Bank and that this is approved by mutual agreement of the euro area Member States. Prior to this, the risk to the solvency of a euro area Member State must be established by mutual agreement of the euro area Member States, without the participation of the Member State involved, together with the International Monetary Fund and the European Central Bank. Guarantees under sentence 1 may only be given by 30 June 2013 at the latest.

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(2) The giving of guarantees under subsection 1 is subject to the condition that the euro area Member, without the participation of the Member State involved and with the cooperation of the European Central Bank and in consultation with the International Monetary Fund, mutually agree that emergency measures under the Council Regulation to create a European financial stabilisation mechanism are not or not in full sufficient to avert the risk to the solvency of the euro area Member State in question.

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(3) A guarantee is to be applied against the maximum amount thus authorised in the amount in which the Federal Government can be called upon under the guarantee. Interest and costs are not to be charged on the amount authorised.

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(4) Before giving the guarantees under subsection 1, the Federal Government will endeavour to reach agreement with the German Bundestag budget committee. The budget committee has the right to submit an opinion. If for compelling reasons a guarantee has to be given before agreement has been reached, the budget committee must be subsequently informed without delay; the absolute necessity of giving the guarantee before agreement is reached must be justified in detail. In addition, the German Bundestag ‘s budget committee is to be informed quarterly on the guarantees given and their correct use.

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(5) Before the guarantees are given by the Federal Ministry of Finance, the agreement on the special purpose vehicle must be submitted to the German Bundestag ‘s budget committee.

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(6) The scope of the guarantees under subsection 1 may, if the requirements of § 37.1 sentence 2 of the Federal Budget Code are satisfied, with the consent of the German Bundestag ‘s budget committee be exceeded by up to 20 per cent of the sum stated in subsection 1.

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§ 2

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Entry into force

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This Act shall enter into force on the day after it is promulgated.

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13. On 7 June 2010, the Grand Duchy of Luxembourg founded the special purpose vehicle, initially alone (see European Financial Stability Facility, Société Anonyme, 7 June 2010). On the same day, the finance ministers of the Eurogroup and a representative of the special purpose vehicle accepted the Framework Agreement (see EFSF Framework Agreement, Execution Version of 7 June 2010). Article 13.8 of this Framework Agreement gives the other Member States the right to assume their shares of the special purpose vehicle.

II.

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In their constitutional complaints, the complainants challenge German and European legal instruments and further measures which are related to attempts to solve the current financial and sovereign debt crisis in the area of the European monetary union. All complainants assert that there is a violation of their fundamental rights under Article 38.1, Article 14.1 and Article 2.1 of the Basic Law.

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1. The first complainants are of the opinion that Article 38.1 sentence 2 of the Basic Law gives every citizen a right that the principles of the structure of the state in the Basic Law are at least in essence safeguarded. They submit that fundamental principles of the Basic Law have been disregarded, in particular the principle of the social welfare state, and that the principles of the constitutional rules governing public finances have been disregarded and in particular there has been a violation of borrowing limits (Article 115 of the Basic Law). Germany has largely abandoned its budgetary sovereignty. They state that the measures are contrary to convergence and thus to stability, and that they also violate the fundamental right to property of Article 14.1 of the Basic Law, and they submit as follows:

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a) aa) Article 38 of the Basic Law grants an individual right that every instance of European integration policy must be supported by sufficiently specific decisions of the German Bundestag and of the Bundesrat . Legal instruments which depart from the concept of the European Union monetary union would be ineffective in Germany, for if they took effect, this would lack parliamentary accountability and would therefore violate Article 38.1 of the Basic Law. The German Bundestag has assumed responsibility for the monetary union, but only subject to particular basic conditions to ensure the stability of the European Union currency. The stability criteria are binding not only as the limit of the sovereign powers transferred, because the Bundestag and the Bundesrat were not prepared or entitled to be accountable for a development of the monetary union independent of these stability criteria, but also because a stability community strictly bound by the convergence criteria is a subject agreed on by European Union treaty. Parliament bears responsibility for and legitimises European Union policy only within the limits of the sovereign powers transferred. Just as the policy of a monetary union cannot take effect in Germany without a German Consent Act, such a policy can also not assert itself under the Basic Law contrary to the Consent Act, whose basis is in the treaty. It would also violate the right equivalent to a fundamental right under Article 38.1 of the Basic Law.

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bb) If there is a departure from the stability principle of the Maastricht Treaty, the German Bundestag and the Bundesrat are not responsible or accountable for this policy, and this violates the citizen’s constitutional rights. Measures which are resolved upon by the European Council and the Council of the Finance Ministers and implemented by the Act on Financial Stability within the Monetary Union disregard the limits of the powers of the European Union and can have no effect in Germany. The measures do not only violate the convergence principle of financial stability law in the narrow sense, but also ignore the requirement of convergence in currency law, that is, the budgetary independence of the members of the monetary union. Decisions of the German Bundestag passed by a simple majority cannot democratically assume responsibility for the aid measures of the European Union and Germany. Whether the monetary union following the stability concept of the Treaty may be expected to result in the European currency being stable depends on whether convergence is realised in such a way that the monetary union can be a community which guarantees stability and in particular monetary stability in the long term (BVerfGE 89, 155 <204>).

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b) In the commitment to grant financial aid to other members of the Eurogroup in order to avert their budgetary hardships, Germany has largely abandoned its budgetary sovereignty, which is an essential part of economic sovereignty. In this way, Parliament’s right to decide on the budget, which defines democratic parliamentarianism (Article 110.2 sentence 1 of the Basic Law), is restricted in a way which surrenders existential statehood in an anti-democratic manner. Limits to permissible loan guarantees can be found in the fundamental budgetary principle of Article 110.1 sentence 2 of the Basic Law. It is impossible for Germany to satisfy its commitments under the guarantees without borrowing.

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c) The measures are contrary to convergence and thus to stability, and they also violate the fundamental right to property of Article 14.1 of the Basic Law. This fundamental right guarantees the “citizen’s fundamental right to price stability”. It also receives its substance from the principle of the social welfare state. This guarantee of property is violated by a policy of money instability. Together with the value of money, inflation materially reduces monetary claims. As a result of inflation, monetary wealth loses value to a greater or lesser extent. It is true that the guarantee of property does not generally guarantee the value of assets, but it does afford protection against a state policy which encourages inflation. It also follows from Article 14.1 of the Basic Law that the state has a duty to protect the stability of value of property. The policy of the European Union and of Germany is contrary to convergence and thus to stability and it gives rise to fears of a present and immediate loss of value of the complainants’ personal assets. The legal protection of property calls for inflation to be averted in an early stage. For if one waits until inflation has developed, the damage has already occurred. The constitutional complaint proceedings must examine whether the monetary policy of the European Union and of Germany creates a risk of inflation.

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d) The federal bodies have no powers to undertake acts which are contrary to the Basic Law; at all events, all powers end where they violate the core of constitutional identity, which under Article 79.3 of the Basic Law is not at the disposal of the policies of the federal bodies. The core of constitutional identity also restricts the powers of the European Union bodies. Both the European Union policy and the national policy of the euro rescue package violate not only the principle of conferral, but in the form of inflation policy also violate the core of Germany’s constitutional identity, in particular the principle of the social welfare state. They even hold the danger of creating a currency reform which is contrary to the social welfare state. The European Union is attempting to develop Article 122.2 TFEU into a form of federal emergency constitution. This is an arrogation of power which has the quality of a coup d’état. The European Financial Stabilisation Mechanism creates the “financial union”, which is at the same time a “social union”. It creates the “transfer union” and the liability community. Financial aid for ailing state budgets is a form of financial compensation which departs from the concept of the monetary union.

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2. The second complainant also submits that his fundamental rights and rights equivalent to fundamental rights under Article 38.1, Article 14.1 and Article 2.1 of the Basic Law have been violated. He states that the euro stabilisation mechanism is incompatible with the Treaty on the Functioning of the European Union and has the effect of altering the Treaty (a). Both these elements are significant with regard to more than one violation of a fundamental right ((b) and (c)). He submits as follows:

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a) The euro stabilisation mechanism – in the same way as the earlier aid to Greece – violates the bailout prohibition of Article 125.1 TFEU, which rules out European Union liability for commitments of the Member States and liability of the Member States for commitments of other Member States. It is the purpose of this provision to ensure comprehensive legal responsibility of the Member States for their own public-revenue conduct. Only if it is clear to every Member State that neither the European Union nor other Member States are liable for or guarantee that state’s own commitments and therefore there is a risk of state insolvency in certain circumstances is there sufficient incentive to satisfy the requirements of stability in the long term and not to engage in an irresponsible debt policy at the cost of the others – who admittedly have no legal obligation, but might see themselves, as a result of the pressure of economic circumstances, de facto forced to be responsible for the commitments of the Member State with unsound economic activity – and to enjoy prosperity on credit in the hope that ultimately the others will pay for this.

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A justification of this violation by a state of emergency under Article 122.2 TFEU is out of the question. In particular, the overindebtedness of Greece and other states is not an event comparable to a natural disaster, but the result of a financial policy for which, according to the Treaty, the states in question are solely responsible. In the case of overindebtedness, state bankruptcy is an economic consequence of the state’s own conduct, for which the state in question must take responsibility under the meaning and purpose of Article 125 TFEU. If the impending insolvency of a Member State were to be understood as an exceptional occurrence within the meaning of Article 122.2 TFEU, scarcely an area of application for the bailout prohibition would remain.

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The contravention of the bailout prohibition by the euro stabilisation mechanism is not an isolated infringement of the Treaty; on the contrary, the concept of the stability union provided for by the Treaty is permanently destroyed, and replaced by the completely different concept of a liability and transfer union. In addition, the euro stabilisation mechanism as such represents the institutionalisation of ongoing failure to fulfil Treaty obligations. In the Maastricht Treaty, the Federal Republic of Germany only consented to monetary union subject to the proviso that the provisions guaranteeing stability should be in force and be strictly applied. Every time it disregards these provisions, the European Union leaves the Treaty foundation of monetary policy and oversteps the scope of competence defined in the Member States’ Acts to ratify the Treaty. Politically, there may be differing opinions as to whether such a turning away from the previous conception is desirable or not. But legally, at all events, such a fundamental change of design is possible only by a formal amendment of the Treaty. The participation of the Federal Government and the Bundestag in the de facto alteration, sanctioned by custom, of the Treaty on the Functioning of the European Union is incompatible with the principle of democracy.

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b) In its Lisbon judgment, the Federal Constitutional Court recognised a comprehensive right of the individual to participate in the democratic legitimation of state authority – a “right to democracy” – which is not restricted to legitimation in connection with the transfer of sovereign powers. In substance, admittedly, this right equivalent to a fundamental right does not entail a comprehensive review of the lawfulness of the whole of the state’s activity, but it does entail a “review of democracy”. This right of the individual under Article 38. 1 of the Basic Law has been violated in several ways by the challenged acts and omissions.

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aa) Ultra vires acts of the European Union bodies contravene the principle of democracy and infringe the complainant’s right equivalent to a fundamental right under Article 38.1 of the Basic Law because they involve the exercise of sovereignty in Germany which is not democratically legitimised. From Article 38.1 of the Basic Law there follows in general the right of every citizen that state authority and European sovereign power is democratically legitimised, unless the constitution itself – within the limits of Article 79.3 of the Basic Law – permits restrictions or modifications of the democratic principle of legitimation. The challenged acts and omissions of the European Union bodies, as ultra vires acts, contravene Article 38.1 of the Basic Law. This applies to the decision of the Council of 9 May 2010 to introduce a euro stabilisation mechanism (violation of the bailout prohibition of Article 125.1 TFEU), to Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (violation of the bailout prohibition of Article 125.1 TFEU), to the purchase of government bonds of Greece and of other euro area Member States by the European Central Bank (violation of Article 123.1 TFEU) and to the coordination of the rescue packages, that is, of the aid to Greece and the euro stabilisation mechanism, by the Council and the EU Commission (violation of the bailout prohibition of Article 125.1 TFEU). These are manifest and serious cases of overstepping of competence within the meaning of the Federal Constitutional Court’s Honeywell case-law.

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Unlike in the case of the review against fundamental rights, the Federal Constitutional Court has not retracted its authority for ultra vires review of European Union acts. The focus is not on a constant, regular overstepping of European Union competences; instead, the Federal Constitutional Court reviews every individual overstepping of the limited individual competences. Since European Union acts which are not covered by the limited individual competences can have no legal effect in the Member States, they are subject in full to review by the Federal Constitutional Court. Consequently, the complainant can also challenge the fact that the European Union acts violate Article 14.1 or Article 2.1 of the Basic Law; in this case, the Solange II case-law is not pertinent. From the perspective of German constitutional law, ultra vires acts of the European Union bodies are to be disregarded by German state authority because they are not covered by the German Consent Act ratifying the Treaty and thus are not based on an effective transfer of sovereign powers. Every overstepping of their competence by European Union bodies also severs the democratic legitimation connection which is based on the Consent Act.

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bb) Article 38.1 of the Basic Law has also been violated by the Federal Government’s cooperation in the ultra vires acts of the European Union bodies.

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cc) The same applies to the acts of the Federal Government, which in cooperation with the European Union bodies and with the governments of the other Member States led to a fundamental change of the stability conception of the European monetary union. Not only the Federal Government was involved in this de facto alteration of the Treaty outside the legal Treaty amendment procedure, but also the Bundestag and the Bundesrat , by passing the Act on Financial Stability within the Monetary Union of 7 May 2010 and the Euro Stabilisation Mechanism Act of 22 May 2010. Admittedly, as a rule measures for which Parliament as legislature gives authorisation by statute do not lack democratic legitimation. But it must be noted that the Basic Law makes differing requirements of the democratic legitimation conveyed by the Act of parliament. An amendment of primary European Union law, except where it is a case of a simplified treaty amendment procedure provided for in EU law, requires an international-law treaty and a Consent Act ratifying the treaty within the meaning of Article 23.1 of the Basic Law to be entered into. Treaty amendments without such a ratifying Act do not satisfy the constitutional requirements for democratic legitimation.

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dd) In addition, the complainant finds his rights under Article 38.1 of the Basic Law violated in that the de facto abolition of the bailout prohibition encroaches upon the people’s constituent power. A liability community and a European centralisation of budget policy may not even be introduced by a Treaty amendment unless the Member States are given other competences by the European Union by way of compensation. For with this impetus to centralisation the limit of what the Federal Constitutional Court, in the Lisbon decision, regarded as constitutional by way of transfer of sovereign powers would be clearly exceeded. In this decision, the Court emphasised the importance of the budgetary sovereignty of the national parliaments as the most important element of state sovereignty.

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ee) There is also a violation of the principle of democracy guaranteed by Article 38.1 of the Basic Law because the guarantee authorisation and the institutional embodiment of the special purpose vehicle in the Euro Stabilisation Mechanism Act is too imprecise and possibilities of parliamentary monitoring and influence were lacking when the Act was implemented. What standards are to be imposed before guarantees are given on the economic and financial policy programme of the Member State which is to benefit and in what way the performance of this programme in practice is monitored and safeguarded cannot be understood from the challenged statute. It is true that the Federal Government has a right of veto, because the programme has to be approved by mutual agreement of the Member States. However, this veto position is relativised in view of the immense political pressure. In addition, the institutional structure of this special purpose vehicle is not defined in the Act. Nor did the delegates have access to articles of association of the special purpose vehicle when the Act was passed. The “Agreement on Conditions”, which sketches the “central structural elements of the EFSF” in a few words, was by no means sufficient to enable the Bundestag to make an accountable decision.

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In addition, under § 1.4 of the Euro Stabilisation Mechanism Act, the Federal Government is merely obliged to attempt to reach agreement with the Bundestag budget committee before giving guarantees. This is not enough, since in the case of conflict the obligation to attempt to reach agreement leaves the decision on a financial volume of half of the federal budget to the Federal Government.

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ff) With regard to the German Bundestag ‘s budget responsibility, the second complainant finds a violation of Article 38.1 of the Basic Law in particular in the fact that responsibility for the guarantee authorisation given in § 1 of the Euro Stabilisation Mechanism Act in the amount of 147.6 billion euros (123 billion euros plus 20%) exceeds what is possible in a parliamentary democracy. If one adds to this the guarantee authorisation in favour of Greece in the amount of 22.4 billion euros agreed in the Act on Financial Stability within the Monetary Union, this is a total amount which is much larger than the largest federal budget item and which greatly exceeds half of the federal budget. Admittedly, it is not likely that the Federal Government will have to assume liability for all guarantees in full, but it is also not unrealistic to prepare for this possibility. The Bundestag renounces its budget responsibility and its responsibility for the public interest if it ties itself down in this volume in advance for future budget years. With good reason, the Basic Law provides that decisions on revenue and expenditure are to be made in annual budgets or in budgets relating to years, which are adopted as Budget Acts. Admittedly, Article 115. 1 of the Basic Law permits the Bundestag to authorise by statute guarantees of various kinds which may result in expenditure in future financial years. But this presupposes that these are obligations which remain on the scale of customary individual budget items. If, however, half the federal budget is potentially spent in advance in this way, this is a quantum leap. In drafting Article 115 of the Basic Law, the legislature creating the constitution was not thinking of such exorbitant orders of magnitude. It contradicts the principle of parliamentary budget responsibility that the whole or – as in the present case – half of the budget is disposed of in advance and thus room to manoeuvre in order to perform the state’s many duties is abandoned.

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gg) Moreover, Article 38.1 of the Basic Law is also violated by the fact that the Decision of the Representatives of the Governments of the Euro Area Member States Meeting within the Council of the European Union of 9 May 2010 is a treaty under international law and under Article 59.2 in conjunction with Article 115.1 of the Basic Law it required the consent of Parliament in the form of a Consent Act. In the absence of a Consent Act, the democratic legitimation necessary under Article 59.2 of the Basic Law is lacking.

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hh) Finally, the second complainant finds a violation of Article 38.1 of the Basic Law in the fact that Parliament was compelled by the Federal Government to pass the Act on Financial Stability within the Monetary Union and the Euro Stabilisation Mechanism Act, in that the Federal Government claimed that there was a state of emergency with threatening catastrophic consequences or actually caused this state of emergency by a number of omissions. A characteristic of parliamentary democracy is that Parliament debates on various possible decisions and the majority decides in favour of one of the alternatives. If parliament is forced to decide in favour of one alternative because otherwise an absolutely intolerable evil threatens, a democratic choice between alternatives on the basis of competing political conceptions is impossible. However, it is debatable whether there really is only one way out of the Greek crisis and the “euro crisis”. Respected economists think that a far better solution could be achieved if the creditors take a “haircut”. But if there are realistic alternatives, it is undemocratic to put Parliament under such pressure.

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c) In addition to Article 38.1 of the Basic Law, Article 14.1 of the Basic Law is also violated by the challenged acts and omissions. They lead to the collapse of the legal stability structure of the currency system. Admittedly, in its decision on the introduction of the euro, the Federal Constitutional Court stated clearly that by law the currency policy must orient itself towards the objective of price stability, which follows from Article 14.1 in conjunction with Article 88 of the Basic Law, but that there is no individual right to demand that this obligation is fulfilled. This is also correct, because and to the extent that the law of economic, financial, currency and social policy allows tolerance for structuring and prognosis. But where there are strict legal commitments with regard to the structuring of the economic regulatory framework for the development of monetary value, no reason is apparent to restrict the individual right under Article 14.1 of the Basic Law. This is precisely the nature of the legal position in the present case. For the policy violates Article 125.1 and Article 123.1 TFEU and thus fails to observe the limits established by treaty of provisions determining the content and limits of property. It would be a one-sided and impermissibly restrictive point of view if one were always to understand provisions determining the content and limits of property only as restrictions of the rights of owners. They are at the same time constitutive elements of the owner’s rights. Since the legal scope of owners’ rights follows from the totality of the statutory provisions determining the content and limits of property, the individual also has a claim for state authority to observe the provisions determining the content and limits of property.

III.

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The German Bundestag (1) and the Federal Government (2) submitted written opinions on the constitutional complaints.

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1. The German Bundestag is of the opinion that the constitutional complaints are inadmissible (a) and unfounded (b) and submitted as follows:

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a) The complainants disregard the limits of constitutional complaint proceedings and also of the judicial decisions of the Federal Constitutional Court. The constitutional complaint, which is designed to give an individual recourse to justice, is completely pushed into the background and the complainants conduct themselves as if they were champions of the public. The decisions made by the Council of the European Union and the acts and omissions of the ECB and the EU Commission are outside the scope of a constitutional complaint under Article 93.1 no. 4a of the Basic Law and § 90 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). Nor do the Solange II case-law of the Federal Constitutional Court and the statements on European ultra vires acts made in the Lisbon judgment lead to a different result. Independently of this, there is no entitlement to file a specific constitutional complaint, for the complainants are exposed to mere reflex effects, and this is not sufficient to assume a direct effect on them.

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aa) The possibility of a violation of Article 14 of the Basic Law has not been shown. It is true that specific property rights are protected, and consequently so is property in the form of money and the basic possibility of being able to exchange money for material assets. However, Article 14 of the Basic Law contains no guarantee of value; the exchange value of property rights is not covered by the guarantee of property, provided that the possibility of exchange is not completely ruled out. The area of protection of Article 14.1 of the Basic Law does not include monetary stability, and therefore there is no fundamental right to a stable currency. Furthermore, the challenged measures serve to ensure the monetary stability of the euro and for this reason too they do not contravene Article 14 of the Basic Law.

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bb) An infringement of Article 2.1 of the Basic Law is out of the question. Only if an infringement of Article 14.1 of the Basic Law were to be assumed would there at the same time be an infringement of Article 2.1 of the Basic Law, but by reason of its subsidiarity this would then be overridden as a fall-back fundamental right.

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cc) Where the argument is based on objective constitutional law (the principle of the social welfare state), this is outside the area of application of a constitutional complaint. The principle of the social welfare state alone does not give rise to any individual rights. The principle of the social welfare state includes the requirement for the state to create the minimum requirements for an existence inline with human dignity. This does not include the guarantee of a stable currency, because the principle of the social welfare state does not relate to the general economic conditions of environment and existence.

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dd) Nor has the possibility of a violation of Article 38 of the Basic Law been shown. State power and the influence on the exercise thereof are legitimised by election, and in the area of application of Article 23 of the Basic Law, Article 38.1 of the Basic Law precludes emptying this of meaning by relocating duties and powers of the Bundestag in such a way that the principle of democracy, insofar as Article 79.3 in conjunction with Article 20.1 and 20.2 of the Basic Law declares it to be inviolable, is violated (BVerfGE 89, 155 <171>). This guarantee is not relevant, because duties and powers of the German Bundestag are not relocated. The Federal Republic of Germany does not abandon its statehood. The challenged statutes are statements of the German legislature and as such an expression of continuing statehood. In the present context, Article 38.1 of the Basic Law gives no protection against the democratically legitimised legislature.

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b) The constitutional complaints are also unfounded. Fundamental rights have not been violated. Nor does an argument which places an alleged contravention of provisions of European primary law in centre stage carry weight. Insofar as the constitutional complaints assert that there have been violations of law and place these violations in the context of ultra vires review, they overlook the fact that the concept of ultra vires acts does not imply a general review, encroaching upon areas of discretion, by Member State courts of the lawfulness of all European physical acts or legal instruments.

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aa) Apart from the fact that violations of the European treaties by the federal legislature cannot be challenged by way of a constitutional complaint, the accusations are also substantively incorrect with regard to European Union acts.

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(1) In Article 122 TFEU, there was a legal basis for European Union acts. Under Article 122.2 TFEU, the Council may under certain conditions grant a Member State financial assistance from the European Union if this Member State, by reason of natural disasters or exceptional occurrences beyond its control, is in difficulties or is seriously threatened with severe difficulties. It is true that there is no natural disaster in the present case. However, the financial crisis and the developments on the financial markets are exceptional occurrences within the meaning of Article 122.2 TFEU. They are also beyond the control of the Member States considered, that is Greece, Portugal, Spain, Italy and Ireland. The difficulties within the meaning of Article 122. 2 TFEU need not in their entirety arise without fault. Even if Greece and other euro area Member States had themselves actuated their strained budget situations, it would only have been the financial crisis, contagious tendencies entailed by it and the developments on the financial markets which would have led to difficulties or to the threat of severe difficulties. These difficulties within the meaning of Article 122.2 TFEU consist in a substantial deterioration of loan conditions of some euro area Member States, which could have resulted in these Member States being insolvent, and in the danger that these tensions would spread from the government bonds market to other markets and would adversely affect the functioning of the international financial markets.

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(2) The purchase of government bonds of Greece and of other euro area Member States by the European Central Bank is not a violation of Article 123 TFEU. This provision only prohibits the ECB from directly purchasing debt instruments of public-sector bodies and institutions. Consequently, only the purchase of government bonds direct from state issuers, that is, the euro area Member States, is prohibited. The direct purchase of government bonds by the ECB from the secondary market is not prohibited.

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(3) There is no violation of Article 125 TFEU and the bailout prohibition contained therein. There is no aspiration to achieve a completely different conception of the monetary union, away from the stability community and towards the liability and transfer community. Article 125 TFEU is open to interpretation to the extent that it may simply contain a “prohibition of a commitment to give financial aid”, with the result that voluntary financial aid is not affected. Under Article 125 TFEU, neither the European Union nor individual Member States are liable for the obligations of sovereign agencies of other Member States and they do not take responsibility for such obligations. In this way the bailout prohibition prevents creditors of Member States or these Member States themselves from being able automatically to call upon the European Union or other Member States as if they were guarantors of the debts of these Member States. However, this does not mean that Article 125 TFEU contains a general prohibition of financial assistance for Member States. There is no obligation to give assistance, but this is not forbidden. The aid from the Member States does not contravene the bailout prohibition for another reason too. Under the wording of Article 125.1 TFEU – “… A Member State shall not be liable for or assume the commitments …” – a Member State is only forbidden to enter into the debt relationship between another Member State and its creditor, with the result that the bailout prohibition specifically does not contain a general prohibition of voluntary assistance between the Member States. For this voluntary assistance creates a new, independent commitment and is therefore not conceptually an entry into an old commitment.

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In addition, a further reason why the financial assistance of the European Union does not violate Article 125 TFEU is that Article 122.2 TFEU authorises the European Union to grant financial assistance and at the same time can be regarded as the ground of justification for deviating from the prohibition of Article 125 TFEU. Even if one were to infer from the provision a prohibition of assistance, it would still be the case that when choosing between the loss of currency stability and giving assistance, in the last resort European Union law could not stand in the way of giving assistance. On the contrary, it would have to be objectively interpreted following the purposive approach. In the political process, reference has repeatedly been made to the last-resort nature of the present measure. It appears absurd to hold fast to a narrowly interpreted bailout clause if assistance is the last means to preserve the stability of the currency, which is precisely what a narrowly interpreted bailout clause is intended to achieve.

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bb) Finally, in all considerations of lawfulness it must be taken into account that this is an area in which considerable latitude must be given to economic and political assessment and prognosis. The Bundestag and the Federal Government are responsible for the stability of the currency. The Federal Constitutional Court cannot release the politically responsible actors of this responsibility by interpretation of constitutional law. If parts of the euro rescue package were invalidated, this would lead to considerable uncertainty on the financial markets and might completely call into question the stabilisation of the financial markets now achieved. Doubt could be cast on Germany’s willingness and ability to defend the European integration achieved and the joint currency. Trade-offs on the stabilisation package would directly entail substantial risks to the functioning of the financial system in the euro area. As a consequence, a substantial devaluation of the euro could be expected. The probable effects would be a new acute financial and economic crisis in the euro area and beyond it, high welfare loss in Germany and Europe and further political dangers and distortions, which would extend far beyond the economic area.

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2. The Federal Government also regards the constitutional complaints as inadmissible (a), but at all events as unfounded (b). It submitted as follows:

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a) With regard to the secondary-law measures and other practices to be regarded as equivalent to these of the bodies of the European Union, the constitutional complaints are at minimum inadmissible because the conditions under which such acts may be the subject of a constitutional complaint are not satisfied. Nor is it sufficiently shown that the protection of fundamental rights regarded as essential in each case is not generally guaranteed on the European Union level. In addition, the complainants are not affected by the challenged measures in an individual manner. The constitutional complaint proceedings give them no right to challenge provisions which could have only indirect effects on them as part of the general public. In other respects too, there is no possibility that a fundamental right or a right equivalent to a fundamental right has been violated.

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aa) Article 38.1 of the Basic Law only protects against an erosion of the Bundestag ‘s competences by the transfer of sovereign powers or by ultra vires acts of the European Union. On the basis of Article 38.1 of the Basic Law, losses of substance of democratic freedom of action may be challenged; this also includes encroachments upon the principles laid down in Article 79.3 of the Basic Law as the identity of the constitution. But such a case is not applicable in the present matter. Nor can the alleged violations of Articles 123 and 125 TFEU be seen as ultra vires acts in the sense of manifestly wrongful recourse to competences not transferred and therefore reserved to the Member States. Consequently, the challenged European Union measures are also incapable of being violations of Article 38.1 of the Basic Law. Insofar as the second complainant asserts that there has been a violation of Article 38.1 of the Basic Law because there is no statute under Article 59.2 of the Basic Law, it is plain that no violation of this right equivalent to a fundamental right is possible. This follows from the mere fact that an alleged violation of Article 59.2 of the Basic Law cannot be challenged by way of a constitutional complaint.

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bb) Nor is there a violation of the fundamental right to property under Article 14.1 of the Basic Law. The “civil right to price stability” alleged by the first complainants does not exist. Even if a state duty under objective law to protect monetary value resulted from the principle of the social welfare state or other provisions of the Basic Law, this does not entail a fundamental right of the individual. The second complainant may not rely on the argument that violations of strict legal commitments in shaping economic framework conditions for the development of monetary value could be challenged by constitutional complaint with reference to Article 14.1 of the Basic Law. It is true that the fundamental right to property protects concrete legal interests with the value of assets and thus also property in the form of money, but it does not protect monetary value. The area of protection of Article 14.1 of the Basic Law does not include the purchasing power of money. The subject of protection of the fundamental right is essentially only the substance of specific legal positions which have the value of assets and their use. With regard to money too, only its existence and the possibility of using it as a means of payment are guaranteed, but not its exchange value. In addition, the challenged measures – even if a fundamental right to monetary stability existed – could not violate such a fundamental right, because they would serve to guarantee the euro as currency and thus also the monetary stability of the euro.

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b) At all events, the constitutional complaints are unfounded. The practices of German constitutional bodies and bodies of the European Union that are challenged do not adversely affect the fundamental rights or rights equivalent to fundamental rights of the complainants (aa). Even if other German constitutional law (bb) and the law of the European Union (cc) could be matters open to review by a constitutional complaint, there would be no violation of prior-ranking law.

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aa) (1) Article 38.1 of the Basic Law has not been violated, for there has been no transfer of sovereign powers on the basis of Article 23.1 of the Basic Law which could have resulted in an erosion of the Bundestag ‘s competences. The German Bundestag ‘s scope of action has in no way been restricted by law. In the Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism, the Bundestag exercised its competences. The challenged acts of cooperation of the Federal Government in the circle of the representatives of the governments of the Member States meeting within the Council of the European Union and in the passing of decisions in the Council and these decisions themselves also do not violate the right equivalent to a fundamental right under Article 38 of the Basic Law. Political agreement on bilateral measures was made expressly subject to the states’ domestic constitutional provisions. The same applies to the decision of the Council of the European Union (Economic and Financial Affairs) of 9 May 2010. The decision of the Council to introduce a European financial stabilisation mechanism, by which it passed Regulation (EU) no. 407/2010, was made on the basis of Article 122.2 TFEU and is not a measure extending competence which could erode the rights of the Bundestag . The acts of cooperation of the current German representative from time to time therefore cannot have been violations of Article 38 of the Basic Law.

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(2) Article 14.1 of the Basic Law has also not been violated; its area of protection has not even been touched on. The measures decided on serve to protect financial stability in the euro area, the euro currency as such and thus also monetary stability. For this reason they cannot violate the fundamental right to property. Even if one presumes that the challenged measures carry dangers for the stability of the euro, consideration should be given to the legislature’s economic and political latitude for assessment and prognosis, which should at all events be recognised.

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bb) (1) The measures of assistance in the form of loan guarantees to threatened Member States do not violate Article 115 of the Basic Law, nor do they contravene other constitutional law relating to the budget. The principle of budgetary equilibrium (Article 110.1 sentence 2 of the Basic Law) requires only a formal balancing of revenue and expenditure, but it forbids neither guarantees nor borrowing. Under Article 115.1 sentence 1 of the Basic Law, guarantees, like borrowing, require authorisation by federal statute in an amount which is either determined or determinable. The legislature exercised the responsibility to safeguard Parliament’s right to decide on the budget which was assigned it by the Basic Law. In addition, the budget committee was given extensive rights of participation and monitoring under § 1.4 and §1.5 of the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism which exceeded the mere right of information which is otherwise customary when guarantees are given (see § 3.8 and § 3.9 of the Budget Act 2010). Article 115 of the Basic Law provides for no upper limit in figures for guarantees. There is no basis in the Basic Law for limiting the amount of a guarantee to the magnitude of “customary” individual budget items.

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(2) Nor do the measures disregard the core of constitutional identity in the form of the principle of the social welfare state. It is true that constitutional identity, which is laid down in Article 79.3 of the Basic Law, includes the core of the principle of the social welfare state. However, monetary stability is not one of the elements which constitute this core based on the concept of the social welfare state.

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(3) There is no violation of Article 59.2 of the Basic Law. Even violations of Article 59.2 of the Basic Law are not permitted to be challenged by a constitutional complaint, and there is no violation either with regard to the matters agreed by the government representatives meeting within the Council or with regard to the EFSF Framework Agreement. This follows firstly from the mere fact that these are not agreements under international law. Secondly, even if one were to assume that they were agreements under international law, the requirements in Article 59.2 of the Basic Law which make a Consent Act necessary would not be satisfied.

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cc) Nor can Article 38. 1 of the Basic Law have been violated under the aspect that the challenged measures contravene European Union law or lead to an alteration or even destruction of the concept of the monetary union as a stability community. On the contrary, it is precisely their objective to preserve the monetary union as a stability community.

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(1) Regulation (EU) No 407/2010 is permissibly based on Article 122.2 TFEU. Under this provision, the Council may under certain conditions grant a Member State financial assistance from the European Union if this Member State, by reason of natural disasters or exceptional occurrences beyond its control, is in difficulties or is seriously threatened with severe difficulties. The global financial crisis and the negative developments on the financial markets, which cannot be explained solely by the basic economic data, constitute such exceptional occurrences. Article 122.2 TFEU authorises only emergency measures. This proves that the Financial Stabilisation Mechanism is only an emergency measure, not a permanent institution which could result in the “liability and transfer community” feared by the complainants. An argument against assuming a permanent institution is the general restriction to measures subject to a time-limit and the obligation of review, which is intended to ensure that the Regulation applies only as long as the exceptional occurrences which threaten the financial stability of the European Union as a whole continue to exist (Article 9 of Regulation <EU> no. 407/2010).

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(2) Article 125 TFEU does not conflict with the grant of aid through the Financial Stabilisation Mechanism, for Article 122.2 and Article 125 TFEU are part of a uniform system of provisions introduced at the same time. It is true that Article 125 TFEU is intended to preserve the budgetary discipline of the Member States by obliging them to take out loans on market conditions. For this reason, a narrow interpretation of Article 125 TFEU may suggest forgoing measures of assistance even where there are imminent dangers to financial stability. However, if the Member States had forgone the measures challenged by the constitutional complaint, serious consequences would have had to be feared, not only for the euro area. Every mechanical application of Article 125 TFEU would have considerably endangered the economy and also the currency in the euro area and beyond. The provision is not tailored to the case of an already existing acute danger to the financial stability of the euro system. The Member States were permitted to act to avert this danger because in Article 125 TFEU there is a gap relating to the case of burdens on Member States in the euro area resulting from a financial crisis, at all events insofar as there is an imminent danger to the whole economic and monetary union. This gap, in the sense of the lack of a necessary restriction, can be closed if it is interpreted purposively with the result that Article 125 TFEU does not apply if the monetary union would otherwise be endangered. In the decision on the emergency measures, in the opinion of the Federal Government the federal legislature has latitude of decision and judgment. At all events, the fact that the legislature, on the basis of consultations in the circle of the finance ministers and of opinions of the European Central Bank, decided in favour of this protective mechanism in order to prevent the feared far-reaching market reactions does not overstep the latitude for judgment to which it is entitled. In this connection it is essential that the measures are merely situation-related emergency reactions, which are therefore subject to a time-limit.

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(3) In other respects too, the Federal Government did not cooperate in an extra-treaty supplementation of the concept, laid down in the Treaty on the Functioning of the European Union, to ensure the price stability of the euro. The challenged measures were not a de facto amendment of the European Union treaties. The European Union does not arrogate to itself any sovereign powers not yet transferred to it which erode the competences of the German Bundestag and thus may violate Article 38 of the Basic Law.

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The bilateral aid and the German emergency measures provided by the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism are not elements of an overall strategy aimed at creating a liability and transfer community. Nor do they establish an arrangement for permanent financial compensation. The fact that these are emergency measures and not a long-term financial transfer is shown on the one hand by the strict requirements laid down in the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism, and on the other hand by the time-limit both for the Act and for the measures of the special purpose vehicle which coordinates the national aid (Article 2.5.b, Article 10, Article 11 of the EFSF Framework Agreement). If the existing extraordinary situation should take a positive course with the result that the emergency measures are no longer needed, there would be nothing to prevent them being terminated prematurely. For this very reason, Regulation (EU) No 407/2010 establishing a European financial stabilisation mechanism, which governs the European Union measures preceding the bilateral aid, includes a commitment to a half-yearly review of the need for its continuance. The Federal Government will continue its commitment to the preservation of price stability in the monetary union and also to an improvement of the associated procedures to protect the stability of the euro as a currency. In this connection, the Council, not least as the result of a German initiative, affirmed its complete determination to ensure the sustainability of public finances in all Member States and to accelerate plans for budget consolidation and structural reforms. The Council also affirmed its determination to bring forward reforms with great urgency to reinforce the monetary union framework in order to ensure the sustainability of public finances. The Federal Government supports these measures because they serve the stability of the euro. It would oppose endeavours to develop the stabilisation mechanism into a permanent institution in the form of a transfer union, which would be inconsistent with the concept of the monetary union as a stability community, and would not permit de facto amendments to the treaty.

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(4) Finally, the purchase of government bonds by the ECB does not contravene European Union law, for Article 123 TFEU prohibits only the direct acquisition of debt instruments of state issuers, but not purchase on the secondary market.

IV.

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As expert third parties (§ 27a of the Federal Constitutional Court Act), the German Bundesbank (1) and the European Central Bank (2) submitted opinions.

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1. In the opinion of the German Bundesbank, the decisions of May 2010 are defensible, all in all, from an economic point of view (a). However, they do put quite considerable strain on the foundations of the monetary union (b). Additional reform steps are necessary to safeguard the monetary union as a stability community in future in order to be prepared for financial crises of Member States too (c). The Bundesbank submits as follows:

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a) The latest developments have revealed fundamental weaknesses in the current financial policy provisions and have shown the economic consequences where competitive positions in the monetary union diverge in the long term. In view of the risks to the stability of the European monetary union, the decisions made by the European Union finance ministers in May 2010 are defensible, all in all, from an economic point of view. It is true that they do not remove the deeper causes of the intensification of the crisis, that is, the dangerous situation of state finances and the past undesirable macroeconomic developments in some states of the monetary union which entail a continuing high need for capital imports. Countering these undesirable developments calls instead for comprehensive financial and economic corrections, the implementation of which takes time and which often only reach their full effect in the medium term. But in view of the situation of the strongly networked financial sector in the euro area, which as a whole is still fragile, a correction at short notice was not possible in May 2010 without the risk of massive economic distortions throughout the euro area. In order to gain the necessary time and against the background of the dangerous situation, the creation of a possibility of support subject to strict conditions and a time-limit is a suitable means.

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b) However, the decisions put quite considerable strain on the foundations of monetary union. Against the background of the gaps and weaknesses in the existing set of provisions, which became plain to see at the latest in the course of the crisis, it is now important to create a framework for the monetary union which in future will better guarantee policies encouraging stability and in particular solid public finances in the Member States. The current financial provisions of the monetary union have to date not been adequate to prevent the escalation of the situation in May 2010, and they have also been additionally weakened by the rescue measures. It is therefore now necessary to combine these rescue measures, as intended, with a toughening of the fiscal rules and an improvement of the statistical foundations. The Bundesbank has repeatedly pointed out that the criterion of indebtedness has particular importance for a stability-oriented monetary policy. It should be given more weight in future. For indebtedness levels of over 60% it should be laid down how quickly they should be reduced and what sanctions will apply if this is not achieved. The deficit criterion could be strengthened if extraordinary provisions which were relaxed in the reform of the Stability and Growth Pact were once again drafted more narrowly and above all greater pressure were created in the precautionary part of the Pact if the conditions were not complied with. Altogether, there is a need for a quicker reaction to undesirable developments and thus an acceleration of the current procedure. The central concern is to improve the inadequate implementation of the provisions. Thus the imposition of sanctions should be less subject to the political negotiation process and more strongly comply with the rules. A commitment to firmer entrenchment of the European fiscal provisions – and in particular of the medium-term budget objectives – in national budget law, as for example in the German brake on debt, would also be effective. In the case of manifest serious undesirable developments, strengthened macroeconomic monitoring on the European level is also necessary. However, in this connection both the independence of monetary policy within the existing framework and the subsidiarity principle must also be taken into account; a basic tendency to centralisation of economic policy and to fine-tuning of the economic process does not make sense.

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c) The future safeguarding of the monetary union as a stability community demands additional reform steps over and above the toughening of the existing set of provisions in order to be prepared for a financial crisis of Member States which nevertheless occurs. In this connection, a variety of instruments have been suggested for discussion. Thus, for example, the introduction of a state insolvency code has been suggested as an essential element of a reformed set of framework provisions. Especially against the background of the latest experience, such a procedure would take account of the no-bailout principle. Thus, the creditors of state debt instruments would also be called upon to solve the debt crisis. They would then have a greater incentive even in advance to demand interest rates appropriate to the risk, and they would have a tendency also to allow for undesirable developments which had not yet become directly observable in fiscal policy figures, for example non-sustainable economic structures or future burdens on government budgets. Using the disciplining function of the financial markets in this way would have the advantage that interest in sound public finances in individual Member States would at least not solely depend on the political decision process on the European level, which in the past has often been shown to be insufficient. Such proposals or further-reaching proposals to supplement the existing framework must be examined if the existing sanction mechanism proves to be inadequate. A critical view must be taken if the present European Financial Stability Facility, which is subject to a time-limit, were to become a long-term support facility. From the view point of the advocates of such a proposal, this would take better account of the fact that the interconnection of the capital markets has greatly increased since the Maastricht Treaty was passed and thus the effects of economic contagion which the payment default of one state in the monetary union has on the other Member States have increased. But at the same time such a course of action would additionally weaken the personal responsibility of the national financial policies, and it would be a further step in the direction of a liability and transfer community. The risk of default on government bonds of individual Member States would be distributed among all states in the monetary union and thus the disciplining effect of the financial markets would be largely removed. The probability that with such an unsound financial policy the creditors of the state in question would call for adequate risk premiums would be reduced and thus the incentive for a cautious budgetary policy would be weakened. In addition, the intended participation of the International Monetary Fund in the present financing facility, which is subject to a time-limit, plays an important role in the credibility of the consolidation packages from the point of view of the markets, and if there were a long-term European stabilisation facility this participation would probably be extremely difficult to ensure. As part of the collective monetary policy, the euro system is committed to the objective of guaranteeing stable prices in the monetary union. In a monetary union based on stability, however, it is a central duty of financial policy to ensure that sound state finances and a suitable institutional framework appropriately support monetary policy. For the long-term stability of the monetary union, the crucial factor will be not allowing the window of opportunity for reforms to strengthen the financial framework and the capacity for growth in the Member States to pass unused.

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1. The European Central Bank points out that the current financial situation and the economic and currency decisions based on it are linked to the global economic and financial crisis. It submits as follows: The crisis began with turbulences on the financial markets in August 2007 and drastically intensified in September 2008 when the collapse of Lehman Brothers led to the financial markets virtually drying up in the industrial countries; this had considerable effects on the real economy in the countries affected. The turbulences on the financial markets and the intensification of the crisis required decisive and energetic measures by the political decision-makers, including the ECB, at that time, in order to guarantee price stability in the euro area. In the weeks and months following this, there was again a drastic and abrupt aggravation of the situation on the financial markets. The epicentre of the tensions was in the European bond markets, in particular in the government bonds markets. These extremely serious tensions on the financial markets affected the whole euro area including the interbank market, the stock market and the foreign exchange market, and it threatened to spread to the global financial markets. The development on the government bonds markets quickly affected the money markets and resulted in a marked increase of uncertainty in connection with the risk of counterparty default. Quotations which reflect this risk of default rose to twelve-month maximums. There was also a liquidity squeeze on the interbank markets. The liquidity position in the area of unsecured loans deteriorated, not only for term money, but also for overnight money. On the European overnight money market, liquidity fell to the lowest level since the beginning of the economic and monetary union in January 1999. The global economic and financial crisis led to unprecedented challenges for political decision-makers, in particular in the industrial countries, which were most severely affected. The latest developments with regard to the increasingly more difficult situation on the government bond markets had the potential to considerably increase the total risk to the financial stability of the euro area, and it should be noted that financial stability is a basic condition of the guarantee of price stability.

V.

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Applications by the complainants for the issue of temporary injunctions were rejected by the Federal Constitutional Court in orders of 7 May and 9 June 2010 (BVerfGE 125, 385; 126, 158).

VI.

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On 5 July 2011, the Federal Constitutional Court held an oral hearing in which the parties explained and expanded upon their legal viewpoints.

B.

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The constitutional complaints against the Act on Financial Stability within the Monetary Union and against the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism are admissible insofar as they challenge an injury to the permanent budgetary autonomy of the German Bundestag on the basis of Article 38.1 sentence 1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law (I). Apart from this, the constitutional complaints are inadmissible (II).

I.

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1. The Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism may be the subject matter of a constitutional complaint in constitutional complaint proceedings as measures by German state authority.

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2. The complainants submit with sufficient substantiation that they themselves may be presently and directly affected by violation of a fundamental right or right equivalent to a fundamental right which is challengeable under Article 93.1 no. 4a of the Basic Law and § 90.1 of the Federal Constitutional Court Act (§ 23.1 sentence 2, § 92 of the Federal Constitutional Court Act).

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a) Insofar as the complainants assert a violation of their right equivalent to a fundamental right under Article 38.1 sentence 1 of the Basic Law by the Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism, the entitlement to file a constitutional complaint depends on the contents of the individual challenges (see BVerfGE 123, 267 <329>). The constitutional complaints are admissible with regard to the alleged erosion of the budgetary autonomy of the German Bundestag .

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aa) In their submission that the sustained (long-term) budgetary autonomy of the German Bundestag is violated in the sense of the erosion of its competences, the complainants set out with sufficient substantiation the possibility of a violation of their right equivalent to a fundamental right under Article 38.1 sentence 1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law.

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(1) Article 38.1 and 38.2 of the Basic Law guarantees the individual right to take part, in compliance with the constitutional election principles, in the election of the Members of the German Bundestag (see BVerfGE 47, 253 <269>; 89, 155 <171>; 123, 267 <330>). Here, the act of election does not consist solely in a formal legitimation of state power on the federal level under Article 20.1 and 20.2 of the Basic Law. The right to vote also comprises the fundamental democratic content of the right to vote, that is, the guarantee of effective popular government. Article 38 of the Basic Law protects the citizens with a right to elect the Bundestag from a loss of substance of their power to rule, which is fundamental to the structure of a constitutional state, by far-reaching or even comprehensive transfers of duties and powers of the Bundestag , above all to supranational institutions (BVerfGE 89, 155 <172>; 123, 267 <330>). The same applies, at all events, to comparable commitments entered into by treaty, which are connected institutionally to the supranational European Union, if the result of this is that the people’s democratic self-government is permanently restricted in such a way that central political decisions can no longer be made independently.

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(2) This substantive extent of protection of Article 38 of the Basic Law does not in general give rise to any right of the citizens to have the lawfulness of democratic majority decisions reviewed by the Federal Constitutional Court. The right to vote does not serve to monitor the content of democratic processes, but is intended to facilitate them. Article 38.1 of the Basic Law, as the fundamental right to participate in the democratic self-government of the people, therefore in principle grants no entitlement to file a specific constitutional complaint against decisions of Parliament, in particular enactments.

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(a) Since the judgment on the Maastricht Treaty on European Union, the Federal Constitutional Court has recognised an exception to this principle if, by reason of relocations of duties and powers of the Bundestag under international agreements, an erosion of Parliament’s political legislative possibilities guaranteed by the constitutional system of competences is to be feared (see BVerfGE 89, 155 <172>). This view holds that the principle of representative rule of the people protected by the right to vote may be violated if the Bundestag ‘s rights are substantially curtailed and thus a loss of substance occurs of the democratic freedom of action for the constitutional body which has directly come into being according to the principles of free and equal election (see BVerfGE 123, 267 <341>). Such a possibility of challenge is restricted to structural changes in the organisation of government such as may occur when sovereign powers are transferred to the European Union.

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This review of state power accessed by every citizen’s constitutional complaint was already criticised in connection with the Maastricht judgment (Tomuschat, Europäische Grundrechte-Zeitschrift – EuGRZ 1993, p. 489 <491>; Bryde, Das Maastricht-Urteil des Bundesverfassungsgerichts – Konsequenzen für die weitere Entwicklung der europäischen Integration , 1993, p. 4; König, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht  – ZaöRV 54 <1994>, p. 17 <27-28>; Bieber, Neue Justiz – NJ 47 <1993>, p. 241 <242>; Gassner, Der Staat 34 <1995>, p. 429 <439-440>; Cremer, NJ 49 1<1995>, pp. 5 ff.). Similar opinions were also expressed following the Lisbon judgment (Schönberger, Der Staat 48 <2009>, pp. 535 <539 ff.>; Nettesheim, Neue Juristische Wochenschrift – NJW 2009, p. 2867 <2869>; Pache, EuGRZ 2009, p. 285 <287-288>; Terhechte, Europäische Zeitschrift für Wirtschaftsrecht – EuZW 2009, p. 724 <725-726). However, the Senate adheres to its opinion. The citizen’s claim to democracy, ultimately rooted in human dignity (see BVerfGE 123, 267 <341>) would lapse if Parliament abandoned core elements of political self-determination and thus permanently deprived citizens of their democratic possibilities of influence. The Basic Law has provided, in Article 79.3 and Article 20.1 and 20.2 of the Basic Law, that the connection between the right to vote and state power is inviolable (see BVerfGE 89, 155 <182>; 123, 267 <330>). In the revised version of Article 23 of the Basic Law, the constitution-amending legislature made it clear that the mandate to develop the European Union is subject to permanent compliance with particular constitutional structural requirements (Article 23.1 sentence 1 of the Basic Law) and that in this connection an absolute limit is created by Article 79.3 of the Basic Law to protect the identity of the constitution (Article 23.1 sentence 3 of the Basic Law), which at all events in this context requires less than cases of imminent totalitarian seizure of power for it to be exceeded. Citizens must be able to defend themselves in a constitutional court against a relinquishment of competences which is incompatible with Article 79.3 of the Basic Law. The Basic Law provides for no more extensive right of challenge.

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The defensive dimension of Article 38.1 of the Basic Law therefore takes effect in configurations in which the danger clearly exists that the competences of the present or future Bundestag will be eroded in a manner that legally or de facto makes parliamentary representation of the popular will, directed to the realisation of the political will of the citizens, impossible. The entitlement to make an application is therefore only granted if there is a substantiated submission that the right to vote may be eroded.

103

(b) The entitlement to file a specific constitutional complaint under Article 38.1 of the Basic Law may also exist if, and this is the only matter at issue in this case, guarantee authorisations under Article 115.1 of the Basic Law which implement matters decided in international agreements may by their nature and extent result in massive adverse effects on budgetary autonomy.

104

The fundamental decisions on public revenue and public expenditure are part of the core of parliamentary rights in democracy. Article 38.1 sentence 1 of the Basic Law excludes the possibility of depleting the legitimation of state authority and the influence on the exercise of that authority provided by the election by fettering the budget legislature to such an extent that the principle of democracy is violated (see BVerfGE 89, 155 <172>; 123, 267 <330> in each case on the relocation of duties and powers of the Bundestag to the European level). By putting the elements into specific terms and objectively tightening the rules for borrowing by Federal and Länder governments (in particular Article 109.3 and 109.5, Article 109a, Article 115 of the Basic Law new, Article 143d.1 of the Basic Law, Federal Law Gazette I 2009 p. 2248), the constitution-amending legislature made it clear that a constitutional commitment of the parliaments and thus a palpable restriction of their power to act is necessary in order to preserve the democratic freedom of action for the body politic in the long term. The act of voting would be devalued if the German Bundestag no longer disposed of these means of organisation to fulfil state functions resulting in expenditure and to exercise its powers, when its power to act is legitimised by the voters to use these very means of organisation.

105

Whereas conventional guarantee authorisations within the meaning of Article 115.1 of the Basic Law, as the discussion in the oral hearing showed, entail no extraordinary risks to budgetary autonomy and therefore the Basic Law contains no restrictions in this connection, guarantee authorisations to implement obligations which the Federal Republic of Germany undertakes as part of international agreements to preserve the liquidity of states in the monetary union certainly have the potential to restrict the Bundestag ‘s possibilities of political organisation to a constitutionally impermissible extent. Such a case would have to be feared, for example, if the Federal Government, without the requirement of the Bundestag ‘s consent, were permitted to give guarantees to a substantial extent which contribute to the direct or indirect communitarisation of state debts, that is, guarantees where only the conduct of other states decided when the guarantee would be called upon.

106

(3) In the circumstances of the present case, the complainants’ submissions satisfy the strict requirements for showing the violation of a fundamental right.

107

The present case concerns statutory authorisations for the giving of a guarantee with effect outside the state and the creation of an international mechanism intended to be temporary to preserve the liquidity of states in the monetary union. With regard to the German Bundestag ‘s right to decide on the budget affected by this, this is a case of the creation of obligations whose effects may be equivalent to a transfer of sovereign powers if the Bundestag is no longer able to dispose of its budget on its own responsibility. Since it has not yet been clarified in the case-law of the Federal Constitutional Court subject to what requirements in such a combination of circumstances the right under Article 38.1, Article 20.1 and 20.2, and Article 79.3 of the Basic Law may be violated, in this respect it is sufficient to submit that the challenged statutes are merely first steps towards a historically unprecedented automatic liability which is becoming established and altogether is constantly increasing and which does indeed correspond to the shaping or transformation of transferred sovereign powers within the meaning of Article 23.1 of the Basic Law and at all events is designed to be such a shaping or transformation.

108

bb) Insofar as the second complainant submits on the basis of Article 38.1 sentence 1 of the Basic Law that there is also an extra-treaty supplementation of the concept provided in the Treaty on the Functioning of the European Union to ensure the price stability of the euro, his constitutional complaint is inadmissible.

109

It is true that the principle of the Basic Law’s openness towards European law (see BVerfGE 123, 267 <354>; 126, 286 <303>) and the constitutionally protected viability of the European Union’s legal order (see BVerfGE 37, 271 <284>; 73, 339 <387>; 102, 147 <162 ff.>; 123, 267 <399>) subject German agencies to an obligation when they act functionally for the European Union within its institutional organisation, and at the same time constitutionally bind them to observe European Union law. But this is not relevant in the present case. The second complainant has not submitted with sufficient substantiation to what extent domestic requirements of the particular responsibility of German legislative bodies in the European integration process (responsibility for integration) might not be complied with. It may therefore remain undecided subject to what requirements constitutional complaints against extra-treaty supplementation of primary European Union law may be based on Article 38.1 sentence 1 of the Basic Law (see BVerfGE 123, 267 <351>; with reference to the amendment of treaty law by European Union bodies without ratification procedures). In particular, no decision is necessary as to when measures of German state power which have an extra-treaty effect on primary European Union law or which substantively or institutionally supplement it may be challenged in constitutional complaint proceedings in the same way as a Consent Act to agreements under international law. It may also remain undecided whether contraventions of the principle of democracy – at all events in conjunction with the principle of the rule of law – are in principle also challengeable in this way. For the second complainant has at all events not shown a specific context which suggests an extra-treaty supplementation of primary European Union law in such a way that a violation of the right to vote seems possible. In particular, he has not submitted with sufficient substantiation that an extra-treaty supplementation of primary European Union law might be connected to the Act on Financial Stability within the Monetary Union or the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism.

110

b) The constitutional complaints against the Act on Financial Stability within the Monetary Union and against the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism are also inadmissible insofar as the complainants submit that there is a violation of their fundamental right under Article 14.1 of the Basic Law.

111

aa) Whether, and if so in what more detailed circumstances, the purchasing power of money is included in the area of protection of the fundamental right to property of Article 14.1 of the Basic Law (see BVerfGE 97, 350 <370-371>) need not be decided here. The same applies with regard to the constitutional protection against inflationary effects which are clearly induced by the state and which may possibly be desired in economic policy (see Herrmann, Währungshoheit, Währungsverfassung und subjektive Rechte , 2010, p. 338 ff.). In particular, it is not necessary to answer the question as to how far the provision on the organisation of government of Article 88 sentence 2 of the Basic Law, as a result of the statutory requirement of independence and as a result of the commitment to price stability, also serves the goal of the individual protection of property (see BVerfGE 89, 155 <174>; 97, 350 <376>).

112

bb) At all events, the complainants neither show in a substantiated manner an inflationary effect in the sense of such an intentional state economic policy, nor do they submit sufficient facts to show that the purchasing power of the euro is substantially objectively impaired by the challenged measures. The fact that the challenged authorisations to give guarantees – with regard to their volume – entail considerable challenges for the budgetary policy of the Federal Republic of Germany does not alter the fact that the sums which have been involved to date do not as yet display such massive effects on monetary stability that a justiciable violation of the guarantee of property is possible, and in particular the submissions of the complainants do not support this. It is not in general the task of the Federal Constitutional Court in the course of constitutional complaint proceedings to review economic and financial policy measures to identify negative effects on monetary stability. Such a form of review only comes into consideration in marginal cases – which have not sufficiently been shown in the present case – where there is a manifest decrease of monetary value as a result of state measures. With regard to the support measures challenged in the present case too, the result is the general conclusion that monetary value is in a particular way related to and dependent on the Community (see BVerfGE 97, 350 <371>).

II.

113

With regard to the other subject matters of the constitutional complaints, the constitutional complaints are inadmissible in their entirety.

114

1. Insofar as the constitutional complaints are directed against the Federal Government’s cooperation in the intergovernmental Decisions of the Representatives of the Governments of the Euro Area Member States Meeting within the Council of the European Union and of the Representatives of the Governments of the 27 EU Member States of 10 May 2010 (Council Document 9614/10) and against the cooperation of the Federal Government in the decision of the Council of the European Union of 9 May 2010 to create a European stabilisation mechanism (Conclusions of the Council [Economic and Financial Affairs] of 9 May 2010, Rat-Dok. SN 2564/1/10 REV 1 of 10 May 2010, p. 3), and against the cooperation of the Federal Government in the decision of the Council on the Council Regulation establishing a European financial stabilisation mechanism of 10 May 2010 (Council Document 9606/10), the complainants are not directly burdened (see BVerfG, Order of the Second Chamber of the Second Senate of 12 May 1989 – 2 BvQ 3/89 –, NJW 1990, p. 974; BVerfG, Order of the Third Chamber of the Second Senate of 9 July 1992 – 2 BvR 1096/92 , Neue Zeitschrift für Verwaltungsrecht – NVwZ 1993, p. 883; Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 2, 75 <76>).

115

The various acts of cooperation of the Federal Government are not acts of sovereign power against the complainants which are challengeable by constitutional complaint. In this respect, despite the differences between the law of international agreements and supranational law, the same applies as to acts of cooperation of German bodies in agreements under international law (see BVerfGE 77, 170 <209-210>; BVerfG, Order of the Second Chamber of the Second Senate of 12 May 1989 – 2 BvQ 3/89 –, ibid.).

116

2. The submissions of the complainants that their fundamental rights are directly violated by the intergovernmental decisions of the representatives of the governments of the euro area Member States meeting within the Council of the European Union and of the representatives of the governments of the 27 EU Member States of 10 May 2010 (Council Document 9614/10), the decision of the Council of the European Union of 9 May 2010 to create a European stabilisation mechanism (Conclusions of the Council [Economic and Financial Affairs] of 9 May 2010, Rat-Dok. SN 2564/1/10 REV 1 of 10 May 2010, p. 3), the decision of the Council on the Council Regulation establishing a European Financial Stabilisation Mechanism of 10 May 2010 (Council Document 9606/10) and the purchase of government bonds of Greece and other euro area Member States by the European Central Bank are inadmissible because they are not based on qualified subject matters of constitutional complaints. The challenged acts – notwithstanding other possibilities of review with regard to the right to apply them in Germany (see BVerfGE 89, 155 <175>; 126, 286 <302 ff.>) – are not sovereign acts of German state authority within the meaning of Article 93.1 no. 4a of the Basic Law and § 90.1 of the Federal Constitutional Court Act which may be challenged by the complainants.

117

3. Insofar as the second complainant’s constitutional complaint challenges an alleged omission of the EU Commission to use the measures against the indebtedness of euro area Member States provided in the Treaty on the Functioning of the European Union and to counteract their disregard of the budgetary discipline laid down in the Treaty and to prevent in this way a state of emergency coming into existence which is now used as the justification of the rescue packages (Greek rescue package and European stabilisation mechanism) which are incompatible with the Treaty, the constitutional complaint is also inadmissible. The same applies insofar as the second complainant submits that the Federal Government omitted to take measures against the speculators who, by the account of the Federal Government, speculate against the euro or against particular euro area Member States so aggressively that the rescue packages are needed to save the stability of the currency.

118

An omission on the part of the legislature may be the subject of a constitutional complaint if the complainant can rely on an express mandate of the Basic Law which essentially defines the content and scope of the duty to legislate (see BVerfGE 6, 257 <264>; 23, 242 <259>; 56, 54 <70-71>). Fundamental principles which could justify the assumption of such a duty to act on the part of the Federal Government of the EU Commission have neither been submitted with substantiation by the second complainant, nor are they otherwise apparent.

C.

119

The constitutional complaints are unfounded insofar as they are admissible. There are no well-founded constitutional objections to the Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism.

I.

120

Article 38.1 sentence 1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law determine the basis for judicial review. The right to vote, as a right equivalent to a fundamental right, guarantees the citizens’ self-determination and guarantees free and equal participation in the state authority exercised in Germany (see BVerfGE 37, 271 <279>; 73, 339 <375>; 123, 267 <340>, with reference to the respect for the constituent power of the people). The guaranteed content of the right to vote includes the principles of the requirements of democracy within the meaning of Article 20.1 and 20.2 of the Basic Law, which Article 79.3 of the Basic Law guarantees as the identity of the constitution (see BVerfGE 123, 267 <340>).

121

1. There is a violation of the right to vote if the German Bundestag relinquishes its parliamentary budget responsibility with the effect that it or a future Bundestag can no longer exercise the right to decide on the budget on its own responsibility.

122

a) The decision on public revenue and public expenditure is a fundamental part of the ability of a constitutional state to democratically shape itself (see BVerfGE 123, 267 <359>). The German Bundestag must make decisions on revenue and expenditure with responsibility to the people. In this connection, the right to decide on the budget is a central element of the democratic development of informed opinion (see BVerfGE 70, 324 <355-356>; 79, 311 <329>). On the one hand, the right to decide on the budget serves as an instrument of comprehensive parliamentary monitoring of the government. On the other hand, the budget brings the fundamental principle of equality of the citizens up to date in the imposition of public charges as an essential manifestation of constitutional democracy (BVerfGE 55, 274 <302-303>). In relation to the other constitutional bodies involved in establishing the budget, the elected parliament has a paramount constitutional position. Article 110.2 of the Basic Law provides that the competence to prepare the budget lies solely with the legislature. This particular position is also expressed by the fact that the Bundestag and Bundesrat are entitled and obliged under Article 114 of the Basic Law to monitor the Federal Government’s execution of the budget (see BVerfGE 45, 1 <32>; 92, 130 <137>).

123

The budget, which under Article 110.2 sentence 1 of the Basic Law is declared by the Budget Act, is not merely an economic plan, but at the same time a sovereign act of government in the form of a statute (see BVerfGE 45, 1 <32>; 70, 324 <355>; 79, 311 <328>). It is subject to a time-limit and task-related. The state functions are presented in the budget as expenses which must be covered by revenue under the principle of compensation (see BVerfGE 79, 311 <329>; 119, 96 <119>). The extent and structure of the budget thus reflect overall government policy. At the same time, the revenue achievable restricts the latitude to exercise state functions resulting in expenditure (see Article 110.1 sentence 2 of the Basic Law). Budget sovereignty is the place of conceptual political decisions on the correlation of economic burdens and privileges granted by the state. Therefore the parliamentary debate on the budget, including the extent of public debt, is regarded as a general debate on policy (BVerfGE 123, 267 <361>).

124

b) As representatives of the people, the elected Members of the German Bundestag must retain control of fundamental budgetary decisions even in a system of intergovernmental administration. In its openness to international cooperation, systems of collective security and European integration, the Federal Republic of Germany commits itself not only in legally, but also in fiscal policy. Even if such commitments assume a substantial size, parliament’s right to decide on the budget has not been infringed in a way that could be challenged with reference to the right to vote. The relevant factor for adherence to the principles of democracy is whether the German Bundestag remains the place in which autonomous decisions on revenue and expenditure are made, even with regard to international and European commitments. If decisions were made on essential budgetary questions of revenue and expenditure without the requirement of the Bundestag ‘s consent, or if supranational legal obligations were created without a corresponding decision by free will of the Bundestag , Parliament would find itself in the role of merely re-enacting and could no longer exercise overall budgetary responsibility as part of its right to decide on the budget.

125

2. Against this background, the German Bundestag may not transfer its budgetary responsibility to other actors by means of imprecise budgetary authorisations. In particular it may not, even by statute, deliver itself up to any mechanisms with financial effect which – whether by reason of their overall conception or by reason of an overall evaluation of the individual measures – may result in incalculable burdens with budget relevance without prior mandatory consent, whether these are expenses or losses of revenue. This prohibition of the relinquishment of budgetary responsibility does certainly not impermissibly restrict the budgetary competence of the legislature, but is specifically aimed at preserving it.

126

a) Accordingly, the Federal Constitutional Court has already, in connection with the opening up of the state political regime to the European Union which is intended to realise a unified Europe (see Article 23 of the Basic Law), referred to constitutional limits which the Basic Law creates to prevent Parliament limiting its own right to decide on the budget (see BVerfGE 89, 155 <172>; 97, 350 <368-369>). In this view, a transfer of the right of the Bundestag to adopt the budget and control its implementation by the government which would violate the principle of democracy and the right to elect the German Bundestag in its essential content would at all events occur if the determination of the type and amount of the levies imposed on the citizen were supranationalised to a considerable extent and thus the Bundestag would be deprived of its right of disposal (see BVerfGE 123, 267 <361>).

127

A necessary condition for the safeguarding of political latitude in the sense of the core of identity of the constitution (Article 20.1 and 20.2, Article 79.3 of the Basic Law) is that the budget legislature makes its decisions on revenue and expenditure free of other-directedness on the part of the bodies and of other Member States of the European Union and remains permanently “the master of its decisions”. There is a considerably strained relationship between this principle and guarantee authorisations which are intended to ensure the solvency of other Member States. Admittedly, it is primarily the duty of the Bundestag itself to decide, while weighing current needs against the risks of medium- and long-term-guarantees, in what maximum amount guarantee sums are responsible (see BVerfGE 79, 311 <343>; 119, 96 <142-143>). But it follows from the democratic basis of budget autonomy that the Bundestag may not consent to an intergovernmentally or supranationally agreed automatic guarantee or performance which is not subject to strict requirements and whose effects are not limited, which – once it has been set in motion – is removed from the Bundestag ‘s control and influence. If the Bundestag were to give indiscriminate authorisation in a substantial degree to guarantees, fiscal disposals of other Member States might lead to irreversible, possible massive, restrictions on national political legislative discretions.

128

For this reason, no permanent mechanisms may be created under international treaties which are tantamount to accepting liability for decisions by free will of other states, above all if they entail consequences which are hard to calculate. The Bundestag must specifically approve every large-scale measure of aid of the Federal Government taken in a spirit of solidarity and involving public expenditure on the international or European Union level. Insofar as supranational agreements are entered into which by reason of their magnitude may be of structural significance for Parliament’s right to decide on the budget, for example by giving guarantees the honouring of which may endanger budget autonomy, or by participation in equivalent financial safeguarding systems, not only every individual disposal requires the consent of the Bundestag ; in addition it must be ensured that sufficient parliamentary influence will continue in existence on the manner in which the funds made available are dealt with. The responsibility for integration borne by the German Bundestag with regard to the transfer of competences to the European Union (see BVerfGE 123, 267 <356 ff.>) has its counterpart here for budget measures of equal weight.

129

b) The provisions of the European treaties do not conflict with the understanding of national budget autonomy as an essential competence, which cannot be relinquished, of the parliaments of the Member States which enjoy direct democratic legitimation, but instead they presuppose it. Strict compliance with it guarantees that the acts of the bodies of the European Union in and for Germany have sufficient democratic legitimation (BVerfGE 89, 155 <199 ff.>; 97, 350 <373>). The treaty conception of the monetary union as a stability community is the basis and subject of the German Consent Act (BVerfGE 89, 155 <205>). In this regard, the treaties are parallel, not only with regard to currency stability, to the requirements of Article 88 sentence 2 of the Basic Law, and if appropriate also of Article 14.1 of the Basic Law, which makes compliance with the independence of the European Central Bank and the primary objective of price stability permanent constitutional requirements of a German participation in the monetary union (see Article 127. 1, Article 130 TFEU). Further central provisions on the design of the monetary union also safeguard constitutional requirements of democracy in European Union law. In this connection, particular mention should be made of the prohibition of direct purchase of debt instruments of public institutions by the European Central Bank, the prohibition of accepting liability (bailout clause) and the stability criteria for sound budget management (Articles 123 to 126, Article 136 TFEU). Although in this connection the interpretation of these provisions in detail is not essential, it is nevertheless possible to derive from them the fact that the independence of the national budgets is constituent for the present design of the monetary union, and that the acceptance of liability for decisions of other Member States with financial effect which overstretches the bases of legitimation of the association of sovereign states (Staatenverbund ) – by direct or indirect communitarisation of state debts – is to be avoided.

130

3. In establishing that there is a prohibited relinquishment of budget autonomy with regard to the extent of the guarantee given, the Federal Constitutional Court must restrict itself to manifest violations and in particular with regard to the risk of guarantees being called upon it must respect a latitude of assessment of the legislature.

131

a) The restriction to manifest violations applies to the question as to the maximum amount of a guarantee that can be responsibly given, with regard to the risks of its being called on and the consequences then to be expected for the budget legislature’s freedom to act. Whether and how far a justiciable limit of the extent of guarantee authorisations can be derived directly from the principle of democracy is questionable. At all events, unlike in the case of borrowing, Article 115.1 of the Basic Law does not explicitly provide for such a restriction (see Kube, in: Maunz/Dürig, GG , Art. 115 , marginal nos. 78, 124, 241-242; Wendt, in: von Mangoldt/Klein/Starck, GG , 6th ed. 2010, Art. 115 , marginal no. 26; for a more cautious view on the old legal position, see Siekmann, in: Sachs, GG , 5th ed. 2009, Art. 115 , marginal no. 21, according to whom guarantees of various types, at all events in the amount of the payment obligations which experience has shown to be realised, should be included in the figure for borrowing without restriction). How far what is known as the brake on debt, which was incorporated into the Basic Law in the year 2009 by the 57th Act Amending the Basic Law (57. Gesetz zur Änderung des Grundgesetzes ; Article 109.3, Article 115.2 of the Basic Law), nevertheless imposes an obligation to observe upper limits need not be decided with regard to the challenged statutes. At all events, in the present connection with its general standards based on the principle of democracy, only a manifest overstepping of extreme limits is relevant.

132

b) With regard to the probability of having to pay out on guarantees, the legislature has a latitude of assessment, which the Federal Constitutional Court must respect. The same applies to the assessment of the future soundness of the federal budget and the economic performance capacity of the Federal Republic of Germany. In this connection, the Federal Constitutional Court may not with its own expertise usurp the decisions of the legislative body which is the institution first and foremost democratically appointed for this task.

II.

133

The right to elect the Bundestag under Article 38.1 of the Basic Law is not violated by the Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism. The Bundestag has not eroded its right to decide on the budget in a constitutionally impermissible manner and thus disregarded the material content of the principle of democracy.

134

1. Insofar as it is possible to derive from the democratic principles of Article 20.1 and 20.2 of the Basic Law, which are declared unamendable by Article 79.3 of the Basic Law, a prohibition for configurations like the present one to burden present or future federal budgets with disproportionately great commitments, even if these are only guarantees, it is at all events impossible in the present case to establish that such a limit to burdens has been overstepped.

135

An upper limit to the giving of guarantees following directly from the principle of democracy could only be overstepped if in the case where the guarantee is called upon the guarantees took effect in such a way that budget autonomy, at least for an appreciable period of time, was not merely restricted but effectively failed. This cannot be established in the present case. The legislature considers that the guarantee authorisation contained in § 1 of the Euro Stabilisation Mechanism Act in the amount of 147.6 billion euros (123 billion euros plus 20%) is acceptable from the point of view of the budget even in addition to the guarantee authorisation in favour of Greece contained in the Act on Financial Stability within the Monetary Union in the amount of 22.4 billion euros; this is constitutionally unobjectionable. The same applies to the expectation that even in the case that the guarantee risk were realised in full, the losses of approximately 170 billion euros could be refinanced by way of increases of revenue, reductions of expenses and long-term government bonds, albeit possibly with the loss of growth possibilities and creditworthiness with corresponding losses of income and risk premiums. In this respect, it is in particular not relevant whether the guarantee sum is potentially far greater than the largest federal budget item and substantially exceeds half of the federal budget, because this alone cannot be the yardstick of a constitutional limit of the legislature’s latitude for action.

136

2. None of the challenged statutes creates or consolidates an automatic effect as a result of which the German Bundestag would relinquish its right to decide on the budget. At present there is no occasion to assume that there is an irreversible process with adverse consequences for the German Bundestag ‘s budget autonomy.

137

a) Even the currently applicable legal basis of the monetary union, which cannot be influenced by the two challenged statutes, does not permit an automatic effect by which the German Bundestag could relinquish its budget autonomy. All legal and factual effects of the two challenged statutes, in particular those of the further steps of execution contained in them, are decisively influenced by the treaty conception of the monetary union. The development of this is laid down in a foreseeable manner and subject to parliamentary accountability (see BVerfGE 89, 155 <204>; 97, 350 <372-373>; 123, 267 <356>). The German Consent Act to the Treaty of Maastricht (Federal Law Gazette II 1992 p. 1253; now as amended by the Treaty of Lisbon, Federal Law Gazette II 2008 p. 1038) continues to guarantee with sufficient constitutional detail that the Federal Republic of Germany does not submit to the automatic creation of a liability community which is complex and whose course can no longer be controlled (see BVerfGE 89, 155 <203-204>). De facto changes which might cast question on the binding character of this legal framework cannot at present be established by the Court; the same applies with regard to the current discussion on changes in the incentive system of the monetary union.

138

b) The challenged statutes contain no normative provisions which could – in the necessary overall consideration – undermine the principle of permanent budget autonomy.

139

aa) The Act on Financial Stability within the Monetary Union restricts the guarantee authorisation by amount, indicates the purpose of the guarantee, provides to a certain extent for the payment modalities and makes certain agreements with Greece the basis of the giving of guarantees. Thus the content of the guarantee authorisation is largely defined. Against this background it is acceptable that the German Bundestag participates in the further execution of the statutes merely in the form of giving information to the budget committee.

140

bb) The Euro Stabilisation Mechanism Act defines not only the purpose and the basic modalities, but also the volume of possible guarantees, which cannot be altered either by the Federal Government or by the special purpose vehicle without the consent of the Bundestag . The giving of guarantees is possible only during a particular period of time and it is made contingent on agreeing an economic and financial programme with the Member State affected. This programme must be consented to by the mutual agreement of the euro area Member States, which gives the Federal Government a determining influence.

141

However, § 1.4 of the Act merely obliges the Federal Government to endeavour, before giving guarantees, to reach agreement with the German Bundestag ‘s budget committee, which has the right to state an opinion (sentences 1 and 2). Insofar as compelling reasons mean that a guarantee must be given before agreement is reached, the budget committee must be subsequently informed without delay; the absolute necessity of giving the guarantee before agreement is reached must be justified in detail (sentence 3). In addition, the budget committee is to be informed quarterly on the guarantees given and their correct use (sentence 4). On the basis of these provisions alone, the continuing influence of the Bundestag on the guarantee decisions would not be ensured by procedural precautions – over and above the general political supervision of the Federal Government. For these precautions – even together with the objective, the amount of the guarantee limits and the time-limit of the Euro Stabilisation Mechanism Act – would not prevent parliamentary budget autonomy being affected in a manner which would adversely affect the right to vote. It is therefore necessary, in order to avoid unconstitutionality, for § 1.4 sentence 1 of the Euro Stabilisation Mechanism Act to be interpreted to the effect that the Federal Government, subject to the cases named in sentence 3, is obliged to obtain the prior consent of the budget committee.

D.

142

This decision was passed by seven votes to one insofar as it treats the constitutional complaints as admissible.

Voßkuhle	Di Fabio	Mellinghoff
Lübbe-Wolff	Gerhardt	Landau
Huber		Hermanns

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