Federal Constitutional Court dismisses summary motions against resolution by 20th Bundestag on constitutional amendments

In four decisions in the Alt-Bundestag I-IV proceedings (2 BvE 3/25, 2 BvE 2/25, 2 BvE 5/25 and 2 BvE 4/25), the Second Senate of Germany’s Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) dismissed several constitutional disputes between federal bodies relating to the planned special session of the 20^th Bundestag and rejected the motions for an interim injunction in another case (2 BvE 4/25).

I. Decisions by the Federal Constitutional Court on motions against planned special session of the Bundestag

The motions by the AfD parliamentary group, the Left party’s preliminary group and its future members of the 21^st Bundestag and several AfD members of the Bundestag were rejected as clearly unfounded in the principal proceedings, making the motions for an interim injunction irrelevant. However, no decision has yet been made on the main substance of the constitutional dispute between federal bodies initiated by the independent member of the Bundestag Joana Cotar, which concerns the possible infringement of members’ rights by the design of the legislative procedure. In her case, the court rejected the motions for a temporary injunction.

1. Facts

In exploratory talks following the general election for the 21^st Bundestag on 23 February 2025, the CDU/CSU and SPD agreed on 4 March 2025 on amendments to Germany’s constitution, the Basic Law (Grundgesetz – GG), that would allow for significant new government debt (see our article of 6 March 2025 on the reform proposals initially developed without the participation of the Greens). The vote on the amendment to the financial constitution is to be decided by the 20^th Bundestag before the newly elected Bundestag convenes. Unlike in the new Bundestag, in which the AfD and the Left parliamentary groups combined will have enough seats for a so-called blocking minority, the SPD and CDU/CSU parliamentary groups in the “old” Bundestag, together with the Greens parliamentary group, will achieve the two-thirds majority required for amendments to the Basic Law.

On 6 March 2025, the council of senior members of the 20^th Bundestag discussed the timetable for the proposed amendments to the Basic Law. The leaders of the CDU/CSU parliamentary group and the SPD parliamentary group in the 20^th Bundestag first asked the president of the Bundestag to convene two special sessions on 13 and 18 March 2025. The president then informed the members of the 20^th Bundestag of the convocation, referring to the request for convocation. Also on 6 March 2025, the preliminary council of senior members of the newly elected Bundestag met to discuss the date of the constituent session, planned for 25 March 2025. As no consensus could be reached at the meeting of the preliminary council of senior members on bringing forward the constituent session, the president of the Bundestag kept to the original date, as she felt obliged to do so in accordance with Article 39 of the Basic Law and section 1 of the Bundestag rules of procedure, based on the majority vote of the CDU/CSU and SPD.

The bill submitted by the SPD and CDU/CSU parliamentary groups on the planned amendment to financial constitutional law was made available as a Bundestag document on 10 March 2025. The first reading was on 13 March 2025. On 14 March 2025, the final result of the general election to the 21^st Bundestag was officially announced by the Federal Electoral Committee in accordance with the first sentence of section 42(3) of the Federal Elections Act (Bundeswahlgesetz – BWahlG). On the same day, the heads of the CDU/CSU, SPD and Greens agreed on the exact content of the constitutional amendments adopted by the budget committee of the 20th Bundestag on 16 March 2025. According to the CDU/CSU, SPD and Greens parliamentary groups, the final draft is to be passed by the “old” Bundestag on 18 March 2025.

2. Numerous motions before the Federal Constitutional Court: Interpretation under constitutional procedural law

The procedure for adopting the amendments to the Basic Law using the votes of the 20^th Bundestag is not only politically controversial, but has also led to legal disputes. Numerous parties have applied to the Federal Constitutional Court, some with similar and some with different grounds. These raise the fundamental question of whether the constitutional bodies and their constituent parts that have yet to be constituted can be parties to legal proceedings (see a) below). The constitutional disputes between federal bodies sought involved motions for an interim injunction under section 32(1) of the Federal Constitutional Court Act (Bundesverfassungs-gerichtsgesetz – BVerfGG). In these proceedings, a limited standard of review applies to the court (see b) below).

a) Constitutional disputes between federal bodies: Future members of the Bundestag and parts of federal bodies submit motions

In a constitutional dispute between federal bodies, the applicant claims according to section 64(1) of the Federal Constitutional Court Act that the constitutional rights and duties assigned to it or the body it belongs to have been infringed or directly jeopardised by a legally relevant measure or omission on the part of the defendant (section 64(1) of the Federal Constitutional Court Act). The applicant can therefore assert its own rights assigned to it by the Basic Law or, by way of representative action, the rights of the body it belongs to. In addition to several current and future members of the Bundestag, the current AfD parliamentary group also claimed an infringement of rights because the 20^th Bundestag was convened by the president of the Bundestag and a resolution was adopted on the proposed amendments to the Basic Law by the Bundestag, which, in addition to infringing its own constitutional rights, also complained of an infringement of the rights of the 20^th Bundestag by way of the capacity to sue. The “preliminary group” in the future Bundestag, the Left party, also filed a petition for an action against an organ, in which it sought to claim the rights of the “preliminary group” were infringed as well as the rights of the future 21^st Bundestag by way of standing as a party to the proceedings. The term “preliminary group” is used when a parliamentary group convenes before the newly elected Bundestag does so.

The special procedural feature of the proceedings lies in the fact that future members of the Bundestag or future members of the bodies of a future Bundestag want to initiate proceedings on a constitutional dispute between federal bodies. In view of the question of whether these actors have the capacity to be parties to legal proceedings or the right to sue, the admissibility of these proceedings can already be called into question. The 21^st Bundestag does not yet exist in the legal sense until it convenes. Likewise, pursuant to the first sentence of section 45(1) of the Federal Elections Act, membership of the Bundestag is contingent upon the Bundestag convening. It is not yet clear from the Federal Constitutional Court whether members of the future Bundestag or “preliminary groups” can invoke rights arising from their future legal status or rights of the Bundestag that has not convened yet. In any case, where the applicants assert the timely receipt of their rights as a body, it may be necessary to recognise their capacity to be a party to legal proceedings and their right to bring an action.

The fact that this issue could be central to the prospects of success of their proceedings on a constitutional dispute between federal bodies was also recognised by the Left party’s preliminary group’s lawyers and by its only future members of parliament. They therefore also explicitly addressed the applicants’ capacity as a party to proceedings. However, the Federal Constitutional Court deliberately left this issue, and thus the question of whether the motion for proceedings on a constitutional dispute between federal bodies is admissible, open-ended. Since the question can only arise in the transitional phase from the old to the new Bundestag and thus in a very specific situation, no judicial clarification is likely in the near future.

b) Interim relief: Restricted scope of review

Each of the constitutional disputes between federal bodies involved motions for an interim injunction pursuant to section 32(1) of the Federal Constitutional Court Act to prevent the special sessions of the 20^th Bundestag from being held and resolutions from being passed at short notice. Under section 32(1) of the Federal Constitutional Court Act, in the event of a dispute the Federal Constitutional Court may issue a temporary order to provisionally regulate a situation if urgently required to avert serious disadvantages, to prevent imminent violence or for another important reason in the public interest.

However, the Federal Constitutional Court’s standard of review is limited in this type of proceedings. Unlike in summary proceedings in the administrative courts, there is, in principle, no summary review of the principal issue by the Federal Constitutional Court. In the first stage, the Court only reviews whether the principal proceedings prove to be inadmissible from the outset or manifestly unfounded. The underlying consideration is that the Federal Constitutional Court should not issue an interim injunction if the principal proceedings are obviously unlikely to be successful. However, the bar for obvious unfoundedness is high. It is therefore important that the Court, at the time of its decision, be of the opinion that no aspect is apparent that could help the proceedings on the merits to succeed. If a motion for a temporary injunction clears this first hurdle, the second step is to weigh up the consequences according to the double hypothesis. This is when the Federal Constitutional Court weighs the disadvantages that would arise if a temporary injunction were not issued but the principal proceedings were later successful against the disadvantages that would arise if the temporary injunction were issued but the principal proceedings were unsuccessful. If this standard is applied strictly, the prospects of success of the principal proceedings must be disregarded at the second stage of examination.

3. Decision by the Federal Constitutional Court on points of dispute relating to the law on state organisation in the principal proceedings

However, the motions by the AfD parliamentary group, the Left party “preliminary group” and several members of the Bundestag were unanimously rejected by the Federal Constitutional Court as the principal issues were patently unfounded according to the first sentence of section 24 of the Federal Constitutional Court Act (2 BvE 3/25, 2 BvE 2/25 and 2 BvE 5/25). The summary motions related to the principal proceedings then became irrelevant.

In its rulings, the Federal Constitutional Court stated its position on several issues of state organisation law.

a) The rights of the 21^st Bundestag, parliamentary groups and members are not infringed by convening of 20^th Bundestag

The future members of the Bundestag from the Left party and their “preliminary group” claim that their constitutional rights in the second sentence of Article 38(1) of the Basic Law in conjunction with Article 20(1), Article 79(1) to (3) and Article 39(1) of the Basic Law had been infringed when the 20^th Bundestag convened. The convening of the “old” Bundestag for an extraordinary session on 18 March 2025 precludes the simultaneous convening of the newly elected 21^st Bundestag, although it would be capable of convening once the official election result was announced on 14 March 2025. Therefore, the president of the Bundestag has acted unlawfully in convening the 20^th Bundestag. The constitutional provision of Article 39(2) of the Basic Law, which states that the Bundestag must convene for the constituent session within 30 days of the election, is to be interpreted to mean that the newly elected Bundestag must convene “as soon as possible”. Furthermore, the Left party’s “preliminary group” claims it is being deprived of its opportunities for participation in breach of the second sentence of Article 38(1) of the Basic Law, since it does not have parliamentary group status in the 20^th Bundestag, and the 21^st Bundestag infringes its own right to convene according to the first sentence of Article 20(2), Article 38(1), Article 79(1) and the first sentence of Article 39(1) of the Basic Law. The Left party’s “preliminary group” asserts this right to convene in its own name.

However, the Federal Constitutional Court rejected this argument. The new Bundestag was not prevented from convening by the “old” Bundestag convening. Instead, the new Bundestag alone decides when to convene and thus when the electoral term of the “old” Bundestag ends and thus when its rights and duties as laid down in the second sentence of Article 39(1) of the Basic Law expire. It is parliamentary practice and in accordance with section 1.1 of the Bundestag rules of procedure for the president of the “old” Bundestag to convene the newly elected Bundestag. However, under constitutional law, the Bundestag is free to convene in other ways. On the other hand, the president of the 20^th Bundestag can convene the “old” Bundestag at any time, pursuant to the second sentence of Article 39(3) of the Basic Law, and pursuant to the third sentence, in principle it is obliged to do so if one third of the members of the “old” Bundestag request it, the Court said. Whether the president of the Bundestag has to prioritise convening the new Bundestag over convening the “old” Bundestag in the transitional period between the general election and convening the new Bundestag does not need to be conclusively clarified. This is because such an obligation could only be breached if the new Bundestag had decided to convene and had agreed on a date. In this specific case, however, there was no such agreement.

b) Criteria for a request within the meaning of the third sentence of Article 39(3) of the Basic Law

According to the first sentence of Article 39(3) of the Basic Law, the (constituted) Bundestag itself determines the resumption and completion of its sessions. According to the second sentence of Article 39(3) of the Basic Law, the president of the Bundestag may also reconvene the Bundestag earlier (right to convene) and is obliged to do according to the third sentence of Article 39(3) of the Basic Law if a third of the members, the Federal President or the Federal Chancellor request (obligation to convene). In this context, both the AfD parliamentary group and its members took the constitutional position in the proceedings that there had been no request within the meaning of the third sentence of Article 39(3) of the Basic Law. A request from parliamentary groups was not sufficient for this, even if they made up a total of a third of the members of the Bundestag. This is because it cannot be inferred from the request of a parliamentary group that all the members of that group also agree with the request. Instead, specific, hand-signed requests are required from a third of the members. Therefore, the convening of the 20^th Bundestag is unconstitutional on formal grounds alone, it was argued.

The Federal Constitutional Court countered that according to the second sentence of Article 39(3) of the Basic Law, the president of the Bundestag does not need any specific reasons to convene a session of the Bundestag. This is because, in this case too, holding the session is ultimately a matter for the Bundestag to decide within the framework of its right to assemble. The president of the Bundestag would have to obtain parliamentary authorisation at the beginning of the scheduled meeting, and parliament could also adjourn the meeting again immediately. In this context, the criteria for a request in the third sentence of Article 39(3) of the Basic Law are irrelevant anyway. Furthermore, the Basic Law does not specify how to determine whether the necessary quorum has been reached. The fact that the signature of the authorised representatives of a parliamentary group or several parliamentary groups with the appropriate quorum is regarded as sufficient cannot be objected to on constitutional grounds, the Court said.

c) Has the 20^th Bundestag lost its legitimacy and powers to the 21^st Bundestag?

The AfD parliamentary group also argued that the powers of the “old” Bundestag should be restricted in favour of the newly elected parliament, which has not yet convened. In any case, the 20^th Bundestag lacks the authority to pass constitutional amendments, it argued.

The core issue is the democratic legitimacy of the Bundestag. This does not follow from the act of convening in accordance with Article 39(2) of the Basic Law, but directly from the election itself, in which the people exercise their public authority (Article 20(2) of the Basic Law), the AfD argued. The new Bundestag would have democratic legitimacy immediately after the election. However, as the new Bundestag gains legitimacy, the “old” Bundestag loses legitimacy, which in turn would affect the powers of the current Bundestag. The “old” Bundestag would therefore lack the power to make decisions for which the Basic Law requires a two-thirds majority and thus a particularly high degree of democratic legitimacy. For example, the “old” Bundestag would no longer be able to pass any constitutional amendments during the transition period between the new election and the convening of the new Bundestag, it was argued.

The Federal Constitutional Court was not convinced by this line of argument either and made it clear that the 20^th Bundestag has sufficient democratic legitimacy to vote on amendments to the Basic Law until the end of its legislative term. According to the second sentence of Article 39(1) of the Basic Law, the legislative period of a Bundestag only ends when the new Bundestag convenes. This ensures that the state is never without a parliament capable of acting. Until the new Bundestag convenes, the “old” Bundestag is not restricted in its ability to act, the Court said.

4. No decision in summary proceedings on whether Joana Cotar’s right of consultation was infringed

In another decision (2 BvE 4/25), the Federal Constitutional Court decided on the motions by the independent member of the Bundestag, Joana Cotar, for an interim injunction. Cotar also opposed the scheduling and holding of the special sessions of the 20^th Bundestag.

a) Link to the Heilmann decision

In the grounds for her application, the applicant referred to the Heilmann decision (2 BvE 4/23) by the Federal Constitutional Court on 5 July 2023, in which the legislative process for the second amendment to the German Building Energy Act (Gebäudeenergiegesetz) was temporarily halted. In its decision at the time, the Federal Constitutional Court stated that every member of the Bundestag has the right to an appropriate period of time to process information relating to the matter under discussion as part of the right to equal participation in the parliamentary decision-making process. This also led to certain criteria for the constitutional design of the legislative process, the Court said. It added that if the procedure is squeezed into a very short period of time and the regulatory material is very complicated, the processing of the information by all members of the Bundestag, and thus their right to be consulted as laid down in the second sentence of Article 38(1), may be undermined contrary to the constitutional law.

Ms Cotar claimed she was unable to participate in the parliamentary decision-making process on an equal footing due to the short notice for supplying the documents and the design of the procedure as a whole. This is particularly relevant since, as a result of the new election, the personal staff of the politicians no longer represented in the Bundestag will lose their jobs. She, too, no longer had a personal assistant, Cotar said. That created an imbalance in resources compared to the members of the parliamentary groups. There was also no objective reason for the tight schedule of the legislative procedure, she argued.

b) Consequences of urgent proceedings assessed to Cotar’s detriment

In its ruling, the Federal Constitutional Court does not say whether the motion in the proceedings on the constitutional dispute between federal bodies is inadmissible or manifestly unfounded (first level of review) and confines itself to the second level of review, which is necessary in the context of the Court’s summary legal protection and weighs up the consequences. If the interim injunction sought were to be granted and the applicant’s motion were unsuccessful in the proceedings on the merits, this would constitute a substantial encroachment on the autonomy of parliament and hence on the original jurisdiction of another supreme constitutional body, the Court said. Furthermore, an interim injunction would mean that a resolution by the 20^th Bundestag could definitively not be passed, as a result of which the members of the 20^th Bundestag seeking to pass a resolution would definitively and irretrievably lose their right to pass a resolution according to the second sentence of Article 38(1) of the Basic Law.

On the other hand, if the interim injunction were not granted and the applicant were to succeed in the subsequent principal proceedings, there would also be an irreversible, substantial breach of her rights as a member of the Bundestag, as she would be irretrievably deprived of the opportunity to participate in the deliberations and the adoption of resolutions on the planned amendments to the Basic Law to the extent guaranteed by constitutional law.

Since the rights of the members of the Bundestag would be infringed both in the event of the granting and the non-granting of the interim injunction, the reasons in favour of the adoption of an interim injunction did not prevail in the weighing of consequences. Furthermore, an encroachment on the procedural autonomy of the Bundestag would weigh particularly heavily here because of the real danger that making a decision on the bill tabled would become permanently impossible due to the principle of discontinuity.

c) Next steps in the proceedings

Unlike in the Alt Bundestag I-III proceedings, the proceedings on the constitutional dispute between federal bodies initiated by Joana Cotar have not yet been decided on the merits. The Federal Constitutional Court might be expected to provide more specific details on the standards set out in the Heilmann decision. However, it is more likely that the proceedings on the constitutional dispute between federal bodies will also become inadmissible because Ms Cotar has left the Bundestag. Since no comparable dispute between the applicant and the Bundestag can arise again, the then former member of the Bundestag will no longer have the necessary legal interest in bringing proceedings (see also BVerfGE 87, 207, 209).

It is still conceivable that Joana Cotar could file an objection to the dismissal of the summary decision pursuant to the first sentence of section 32(3) of the Federal Constitutional Court Act, in which case the Federal Constitutional Court would have to rule on the objection after a hearing. According to the first sentence of section 32(4) of the Federal Constitutional Court Act, however, such an objection would have no suspensive effect and therefore would not postpone the special session of the Bundestag either.

II. Latest developments regarding the planned constitutional amendments

After an agreement between the party leaders of CDU/CSU and SPD with the Greens on changes to the proposed constitutional amendments, the required qualified majority in the 20^th Bundestag could possibly be secured. However, given that these three parliamentary groups only have 31 more seats than the number of votes required for a two-thirds majority, the outcome remains to be seen.

In view of the vote in the Bundesrat planned for 21 March 2025, the Bavarian state government has now also announced that it intends to approve the amendment to the constitution for the planned billion-euro financial package proposed by the CDU/CSU and SPD. The CSU and Free Voters agreed on this in a meeting of the coalition committee.

At the same time, further applications for an interim injunction were received at the Federal Constitutional Court in Karlsruhe, which are intended to prevent a decision from being taken at the special session on 18 March 2025.

1. Legislative proposal amended following agreement between CDU/CSU, SPD and Greens

After the Greens’ parliamentary group refused to agree to the planned changes to the constitutional law on public finances for some time, an agreement on a changed legislative proposal was finally reached last Friday. The Greens’ negotiators were able to negotiate an expansion of the concept of defence spending in the talks. The exemption from the debt brake, which is to be included in Articles 109 and 115 of the Basic Law, is also intended to cover federal government spending on civil defence and civil protection, as well as on the intelligence services, on the protection of information technology systems and on aid for states attacked in breach of international law. This would also mean that aid for Ukraine, which has been attacked by Russia in breach of international law, would no longer have to be fully offset against the debt brake.

The planned constitutional provisions for the €500 billion special fund for infrastructure have also been altered under pressure from the Greens. The clarification that the special fund is to be created for “additional investments” is intended to prevent the shifting of investments that were planned anyway into the special budget. In addition, the party leaders agreed to give special consideration to climate protection targets. The special fund is also intended to specifically enable additional investment to achieve climate neutrality by 2045. €100 billion of the total is to go to the climate and transformation fund.

2. Further summary motions to the Federal Constitutional Court unsuccessful

According to the Federal Constitutional Court, three other disputes between federal bodies and four constitutional complaints were still pending before the court on Friday. In addition, further summary motions were submitted over the weekend by Joana Cotar and three FDP members of the Bundestag aimed at preventing the vote on the amendments to the Basic Law. They also argue that the consultation period was insufficient and that the rights of members of the Bundestag had therefore been infringed.

On Monday evening, the Federal Constitutional Court then rejected the motions for interim injunctions in six further decisions, Alt-Bundestag V-X (2 BvE 7/25, 2 BvE 8/25, 2 BvE 10/25, 2 BvE 11/25, 2 BvE 12/25 and 2 BvE 13/25). In its reasoning, the Court referred to the weighing of interests already carried out in 2 BvE 4/25 (Alt-Bundestag IV) and emphasised that there is no general principle that the mere threat of irreversible consequences created by the challenged measure would always require the prospects of success in the main action to be taken into account in the proceedings under section 32(1) of the Federal Constitutional Court Act. There is no exceptional situation that would justify deviation from this principle, the Court said.

In substantive terms, the applicants presented two new aspects in the proceedings. In the proceedings 2 BvE 7/25 (Alt-Bundestag V), the Left party members of the Bundestag argued that the alleged bill was in fact a bill of a potential future federal government and that it had been drafted by the latter, which however had no right to introduce a bill according to Article 76(2) of the Basic Law. In the proceedings 2 BvE 12/25 (Alt-Bundestag IX), the members of the FDP parliamentary group argued that the intended amendments to the Basic Law would open up enormous scope for incurring debt and would thus create a commitment for the future that was incompatible with the concept of intertemporal justice and the previous basic concept of debt relief provisions. The Federal Constitutional Court will address these arguments in the proceedings on the merits.

With the exception of the proceedings 2 BvE 11/25 (Alt-Bundestag VIII), which were based on renewed applications for an interim injunction by Joana Cotar as the applicant, the other proceedings were each connected with motions for actions regarding federal bodies, decisions on which are still pending.

The changes made to the proposed legislation as a result of the political agreement between the CDU/CSU, SPD and the Greens, however, make the timeframe even shorter. They may also lead to a breach of the right of members of the Bundestag to be consulted and make it slightly more likely that the motions in the principal matter will be successful.

 

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