Dissolution of the Bundestag in 2005
| Question of confidence II | ||||||
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| Negotiated August 9, 2005 | ||||||
| Delivered August 25, 2005 | ||||||
| Case number: 2 BvE 4/05 2 BvE 7/05 |
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| Organ dispute among members of the Bundestag due to the dissolution of the Bundestag as a result of a vote of confidence by the Chancellor | ||||||
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| The resolution-oriented vote of confidence by the Chancellor in Parliament is constitutionally permissible if he wants to avert or de-escalate a political crisis. The examination by the court ranks fourth according to a resolution proposed by the Chancellor and is therefore severely restricted. | ||||||
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| Applied Law | ||||||
| Art. 63 , 67 , 68 of the Basic Law | ||||||
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Dissolution of the Bundestag 2005 (also vote of confidence II ) refers to the judgment of the Federal Constitutional Court , which confirms the dissolution of parliament and the arrangement of new elections as a result of the vote of confidence by Chancellor Gerhard Schröder . The main criterion is the purpose of Article 68 of the Basic Law , a question of trust aimed at dissolving it does not contradict it. The Chancellor's assessment that, given the current balance of power, he would no longer be able to pursue a policy supported by the confidence of the parliamentary majority in the future, was "no other assessment clearly preferable" ( Köhler's formula).
The decision develops the jurisprudence principles for examining such a vote of confidence from 1983 ( vote of confidence ).
central message
The decision is a milestone in the judicial practice of judicial self-restraint and develops the previous jurisprudence in two essential points:
- Real and fake questions of trust are equated in the result. A resolution-oriented vote of confidence by the Chancellor is not inadmissible under the constitution; rather, it is part of the toolkit for eliminating political crises and instabilities, alongside the constructive vote of no confidence, the minority government, the non-resolution-oriented vote of confidence and the resignation of the Chancellor. Any way of stabilization in line with the system is permitted for political bodies. In particular, the Chancellor should use a resolution-oriented vote of confidence to prevent further escalation of political instabilities and crises.
- The examination density by the Constitutional Court for new elections ordered in this way is reduced and is measured primarily on the basis of the distribution of roles and power as well as the order of the acting constitutional bodies: Chancellor, Parliament, President, Constitutional Court and only secondarily on the basis of the above. Crisis instruments. If a chancellor decides on a certain path of political stabilization, he cannot be required to disclose unmentioned and even hidden circumstances for the purpose of the crisis de-escalation so that his and subsequent decisions can be checked through substantive legal control. The constitution does not demand the legalization of politics. He may base political decisions on such circumstances, including the proposal to dissolve parliament according to Article 68 of the Basic Law. The court then only conducts a limited substantive examination according to the Koehler formula.
The court made it clear that by no means an unauthorized plebiscite for the government to acclaim its policy . Because the range of topics of an election campaign cannot be controlled by her, not even what motives the people will come to a certain vote for. At most, this would be the case with a monothematic focus of all political forces, so that the federal election relates to a single, specific issue. However, this is not the case in 2005.
Detailed statements
The decision is based on the following detailed statements:
- With Art. 63 , Art. 67 and Art. 68, the Basic Law aims for a government capable of acting. The ability to act does not only mean that the Chancellor determines politics and bears responsibility for it, but also that a majority of the members of the German Bundestag know behind them. Whether the Chancellor has a reliable parliamentary majority can only be partially assessed from the outside. From the parliamentary and political working conditions it can emerge that it remains hidden how the relationship of the Federal Chancellor to the political groups that support his policy develops.
- The genesis of Article 68 of the Basic Law confirms that the resolution-oriented question of confidence should only be justified if the capacity to act of a parliamentary federal government has been lost. Measured against the meaning of Article 68 of the Basic Law, it is not inappropriate if a Chancellor, who is only threatened with defeat in Parliament in future votes, already poses a dissolution-oriented vote of confidence. The ability to act is also lost if the Chancellor is forced to move away from the essential contents of his political concept in order to avoid openly losing approval in the Bundestag.
- The court examines the appropriate application of Art. 68 GG by the Chancellor and President only to the limited extent provided for by the constitution. The resolution-oriented vote of confidence is only constitutional if it corresponds not only to the formal requirements, but also to the purpose of Art. 68 GG.
- The assessment of the appropriate use of the resolution-oriented vote of confidence depends largely on whether a government is still capable of political action, i.e. what goals it is pursuing and what resistance it can expect from the parliamentary sphere. Such assessments have the character of a prognosis and are tied to the Chancellor's highly personal perceptions and deliberate assessments of the situation. Erosion and the undisclosed loss of trust cannot be portrayed or determined in court proceedings. What is not legitimately carried out openly in the political process does not have to be fully disclosed to other constitutional organs. The Federal Chancellor's assessment that he is no longer capable of acting adequately for his future policy cannot be checked by the Federal Constitutional Court and is not accessible to the usual procedural means of knowledge.
- The Basic Law has distributed the decision on the dissolution of the Bundestag to three constitutional organs and assigned each of them their own areas of responsibility. The Federal Chancellor, the Bundestag and the Federal President each have a chain of responsibility in their hands to prevent the dissolution according to their free political assessment. Because of the three-stage decision-making process, the review options of the Federal Constitutional Court are greatly reduced. In this respect, the Basic Law primarily relies on the system of mutual political control and political balance between the constitutional organs laid out in Article 68 of the Basic Law.
- Even if an impending loss of political capacity to act can be assessed most closely by the Federal Chancellor himself, the Federal Constitutional Court has to examine whether the limits of its scope of assessment have been complied with. The general political situation as well as individual circumstances do not necessarily have to lead to the Chancellor's assessment, but merely make them appear plausible. When examining the law, it should be asked whether a different assessment of the political situation is clearly preferable.
Special opinion of the judge Lübbe-Wolff
The judge Lübbe-Wolff agrees with the decision in the result, but objects to the interpretation of Art. 68 GG, with which the court built a mere control facade. The scientific conception of a formal constitutional interpretation was not followed far enough:
The question of trust is not a question of knowledge that everyone can answer or even check. The Federal Chancellor, who asked the vote of confidence, did not ask about the knowledge, but rather about the will of Parliament to support him and his political program in future voting behavior ( performative expression of will ). The question of confidence could therefore only be answered by Parliament itself.
The unwritten substantive element of Article 68 of the Basic Law, introduced in 1983, amounts to the fact that the Bundestag's vote is submitted for review by the Federal President and the court. The Federal Constitutional Court is not entitled to this role. Rather, in a democracy, the only permissible method of determining the will of parliament is a majority vote by parliament and nothing else.
The deficit of this interpretation has not been remedied by the Federal Chancellor's margin of appreciation. In fact, the court had given the scope of assessment so generously that it could practically no longer be able to correct the chancellor's prognosis. Although it requires a material impairment of the government's ability to act, it does allow an appeal to a “hidden minority situation” that cannot be presented in court. A constituent element that can be proven by referring to the hidden leads only to a pseudo legal existence.
This substantive element of the offense was introduced by the Constitutional Court in 1983 without any need and even then was not seriously applied. The court had nothing to offer against circumventing these material characteristics and installed a structural deficit in enforcement . Rather, a material interpretation of Article 68 of the Basic Law systematically creates the impression of an unconstitutional staging by the Chancellor. This is more detrimental to the stability interests that the court invokes for this interpretation than any early election.
The court should have abandoned such unnecessary requirements.
Special opinion of the judge Jentsch
Judge Hans-Joachim Jentsch was convinced that the applications should have been granted. He invokes a different view in jurisprudence . The reasons put forward by the Federal Chancellor do not indicate the inability to act and thus a material dissolution situation. The Basic Law knows the constructive vote of no confidence, but does not know of any “constructed distrust” of the Chancellor towards Parliament. Finally, the opinion of the Senate majority weakens the position of the German Bundestag:
For the constitutionally relevant argument that a steady and reliable majority is no longer available to the Chancellor, there are no visible or verifiable indications. The opinion of the majority of the Senate is based on a departure from the applicable standards of the 1983 decision, without indicating this.
If the Federal Chancellor were to be allowed, with reference to his assessment prerogatives, to ask the question of confidence in situations such as the present, this would come very close to parliamentary self-dissolution. The Basic Law does not know this way for good reasons and in the interests of the stability of the political system. Such a broad scope for decision-making by the Federal Chancellor would give up the material prerequisites which the Federal Constitutional Court established as an unwritten element of Article 68.1 sentence 1 of the Basic Law. He deprived the Federal President and the Constitutional Court of any basis for assessment if the Chancellor's assessment of the situation alone is decisive.
The present instrumentalization of the question of confidence weakens the position of Parliament. It contains the idea that the elected members of the German Bundestag are no longer suitable to reflect the will of the people. For feedback on government policy, the people themselves must be asked. This is not compatible with the design of representative democracy in the constitution and the mandate of the MP. The majority of the Senate allows a Federal Chancellor to call for new elections via a “bogus vote of confidence” if he considers the acclamatory confirmation of his policy to be necessary in order to overcome internal resistance.
Web links
Individual evidence
- ↑ BVerfGE 62, 1
- ↑ cf. 6th guiding principle .
