Judgment of the Federal Constitutional Court on the Immigration Act 2002
In a judgment of December 18, 2002, the Federal Constitutional Court declared the Immigration Act 2002 to be unconstitutional and therefore null and void for formal reasons . The law therefore did not come into force on January 1, 2003. The regulations that came into effect on June 26 and July 1, 2002 were also included in the nullity consequence.
Following this decision, the government, at the initiative of Federal Interior Minister Otto Schily , reintroduced the law in January 2003; the corresponding version came into force on January 1, 2005.
Political background
While the Union- led opposition in the German Bundestag was unable to prevail over the red-green majority, there was a tie in the Bundesrat , so that the votes of the state of Brandenburg mattered. The governing grand coalition of the SPD and CDU had generally agreed in its coalition agreement to abstain from voting in the Federal Council in the event of a lack of agreement ( Federal Council clause ). This would have blocked the law. The Prime Minister Manfred Stolpe had made it clear that he would deviate from it and not tolerate objections from other ministers in his cabinet. CDU ministers, who were also appointed as members of the Federal Council for the Brandenburg government , faced the dilemma of endangering the government coalition or provoking its spontaneous cancellation by the Prime Minister or letting the unwanted law pass.
The Federal Council member Jörg Schönbohm (CDU) had therefore decided - in consultation with other Federal Council members of CDU-ruled countries, namely Peter Müller and Roland Koch - to vote once in dissent and then not to express himself clearly, while the other members appeal for him.
see further sections in the main articles Federal Council , Immigration Act
Main reasons for the judgment
In support of its decision, the majority of the Senate stated:
- The Immigration Act violates Article 78 of the Basic Law and is therefore void. Because of the provisions contained in it on the administrative procedure, it is a law that requires approval , but which did not receive the required majority of votes in the Federal Council.
- The state of Brandenburg has not given its approval because when the state was called in the Bundesrat, the votes were not cast uniformly. The federal states are each represented by their Bundesrat members present. The Basic Law assumes uniform voting and respects the practice of the electoral leaders who are determined by the state, without encroaching on the constitutional area of the state with commands and stipulations ( impermeability ). The casting of votes by a voting leader can, however, be contradicted at any time by another Federal Council member from the same country. This eliminates the electoral leadership. Here, the state of Brandenburg called up in the voting process did not cast its 4 votes uniformly.
- The inconsistency of Brandenburg's vote was not eliminated by the further course of the voting. The Federal President was allowed by his determination that the state of Brandenburg have voted inconsistently, the Federal Council member Manfred Stolpe not ask again, how the Land Brandenburg abstimme. The President of the Federal Council in charge of the vote is in principle entitled to clarify any ambiguities in the course of the vote and to work towards an effective vote in the state. However, if there is clearly no uniform state will and if, given the overall circumstances, it is not to be expected that such a will will come about during the vote, the right to inquire no longer applies. Here the will of the state of Brandenburg for inconsistent voting was clearly evident. There was clarity about the dissent.
- Even if the Federal Council President's right to inquire is generally assumed, this does not lead to any different result. The request should only have been made in the required neutral form. There were two ways of doing this: Either the state of Brandenburg could have been called a second time in the ongoing vote. This would have addressed the question of how the country votes to all members of the Federal Council present. Or the President of the Federal Council - as happened - could have asked a member of the Federal Council directly, but then, after the Prime Minister's "yes", to avoid ambiguity, Minister Schönbohm should have been asked whether he would stick to his "No". The silence without previous question is no legal declaration of value to a vote; there is no obligation for unsolicited interjection .
Special vote of the judges Osterloh and Lübbe-Wolff
Judge Osterloh and Judge Lübbe-Wolff agree with the majority of the Senate that the state of Brandenburg initially did not vote uniformly on the immigration law.
In their opinion, however, the state of Brandenburg was entitled to correct the voting behavior shown in the first round. You do not support the judgment in the result. Because the court disregarded this finding and carried out an incomplete examination:
- Because of the wording of Article 51, Paragraph 3, Sentence 2 of the Basic Law, there are already doubts that, in the event of inconsistent voting in one country, it can be said that an effective vote in the legal sense has taken place. For this reason alone, the country had a right to cast its votes again and now effectively.
- Even if Federal Council President Wowereit's inquiry had been inadmissible, this does not mean that the State of Brandenburg could no longer effectively exercise its right to correct. The opinion of the majority of the Senate boils down to the fact that the President of the Federal Council removes the right of a country to correct his vote if he offers the country the opportunity to do so without cause or if he asks wrongly. The fact that someone forfeits rights through the incorrect behavior of another, i.e. loses his right to express his will and to participate in legislation, is alien to the legal system. The constitution does not recognize “acting at the expense of third parties”.
- On the contrary, the President of the Federal Council opened a new round of voting with his inquiry. In this second round, it was no longer a matter of the previously inconsistent votes, but of whether the country would now vote uniformly. It happened. Minister Schönbohm did not maintain the dissent. He didn't dare to vote no again, because he didn't vote at all. His words 'you know my point of view, Mr President' are irrelevant in this context. However, the opinion confirmed by these words did not matter. Art. 51 (3) sentence 2 GG does not require that the representatives of a country in the Bundesrat are of a uniform opinion. That is precisely why it is necessary to make a precise distinction between votes and opinions. The Basic Law provides solely on the uniformity of the vocal duty, and postulated typus strictly only the votes of yes, no, abstention . There is therefore no second dissent among the members of the Federal Council of Brandenburg.
- The state of Brandenburg was authorized to change or withdraw its vote or to shake it by inconsistencies in every voting round - as long as it was running.
- At most, if it was found that the dissent persisted in the second vote, the President of the Federal Council could assume that the State of Brandenburg would not give a uniform vote in this vote, so that further inquiries would be unnecessary.
Web links
- German Federal Council: Plenary minutes 774 (PDF), p. 171 ff.
literature
- Günter Renner : The judgment of the Federal Constitutional Court on the Immigration Act . Evaluation and Conclusions. In: NJW . 2003, p. 332 ff .
Individual evidence
- ↑ BVerfG, judgment of December 18, 2002, Az. 2 BvF 1/02, BVerfGE 106, 310 = NJW 2003, 339.
