No constitutional review in complaint proceedings regarding non-recognition as a political party – Deutsche Zentrumspartei unsuccessful

Press Release No. 51/2022 of 08 June 2022

Order of 22 July 2021
2 BvC 10/21

By order of 22 July 2021, the Second Senate of the Federal Constitutional Court rejected a complaint lodged by the Deutsche Zentrumspartei (hereinafter: the complainant) challenging the refusal by the Federal Electoral Committee(Bundeswahlausschuss) to recognise the complainant as a political party for Bundestag elections. The Second Senate's decision was initially issued without reasons: something that had not previously occurred in complaint proceedings regarding non-recognition as a political party (Nichtanerkennungsbeschwerdeverfahren). In accordance with § 96d second sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG), the Second Senate has now stated the reasons for its decision.

In complaint proceedings regarding non-recognition, the Court does not ordinarily review the constitutionality of the provisions of electoral and party law that are relevant to the challenged decision: in this case § 2(2) second sentence in conjunction with § 23(2) fourth sentence of the Political Parties Act (Parteiengesetz - PartG). None of the possible exceptions to this general rule are applicable in the present case. The fact that the Court refrains in principle from conducting an "incidental" review of statutory provisions (inzidente Normenkontrolle, in which a statutory provision's constitutionality is reviewed not as the main subject matter but as an "incidental" question on account of the provision's relevance to a challenged measure) does not create gaps in legal protection that are incompatible with Art. 19(4) of the Basic Law (Grundgesetz - GG). Ultimately, the challenged decision of the Federal Electoral Committee is unobjectionable.

Facts of the case:

Pursuant to § 2(2) second sentence in conjunction with § 23 PartG, an association loses its legal status as a political party if, over a six-year period, it fails to submit a financial report in compliance with the statutory requirements. These statutory requirements include the obligation to have the financial report audited and certified by an accountant or sworn auditor. Pursuant to § 23(2) fourth sentence PartG, political parties are only exempt from the obligation to submit a certified financial report if they do not participate in the public funding programme for political parties and if their income or assets do not exceed EUR 5,000 for the financial year.

The complainant only provided the Bundestag with financial reports for 2019 and 2020. These reports were not audited or certified by an accountant or sworn auditor.

On 9 July 2021, the Federal Electoral Committee decided not to recognise the complainant as a political party for the upcoming Bundestag elections. In the reasons for its decision, the Federal Electoral Committee stated that the complainant had lost its legal status as a political party because, for each of the previous six years, it had either failed to submit a financial report or had submitted reports that were incomplete.

The complainant challenged the Federal Electoral Committee's decision, asserting that it violated Art. 21(1) GG, that the refusal to recognise the complainant as a political party was entirely disproportionate, and that the statutory provision of § 23(2) fourth sentence PartG was questionable under constitutional law. The complainant argues that the amount of income at which it becomes obligatory to submit a certified financial report should be raised since it is impossible for parties with an annual income of EUR 5,001 to cover the costs of their political activities and still have sufficient resources to pay for an accountant.

Key considerations of the Senate:

The complaint against non-recognition as a political party is unfounded.

I. When dealing with non-recognition complaints, the Federal Constitutional Court does not ordinarily review the constitutionality of the statutory provisions upon which the Federal Electoral Committee based its decision to not recognise a political party for Bundestag elections (here: § 2(2) second sentence in conjunction with § 23(2) fourth sentence PartG).

The procedure by which associations challenge their non-recognition as a political party for Bundestag elections is set out in Art. 93(1) no. 4c GG, §§ 96a-d BVerfGG and § 18(4a) of the Federal Elections Act (Bundeswahlgesetz - BWahlG). Analysing these provisions according to the standard methods of interpretation, it is clear that the scope of the Federal Constitutional Court's review is limited to examining whether the relevant statutory provisions were properly applied by the Federal Electoral Committee.

1. The presumption that, in non-recognition complaint proceedings, the Court does not review the constitutionality of the provisions of electoral and party law relevant to the challenged decision is supported first and foremost by systematic considerations.

a) The procedural rules themselves support this presumption.

aa) According to § 18(4) first sentence BWahlG, the Federal Electoral Committee must decide on an association's recognition as a political party no later than the 79th day before the election. At the same time, § 18(4a) second sentence BWahlG provides that in cases where an association has lodged a complaint against its non-recognition as a political party, the association's provisional treatment as a political party expires on the 59th day before the election. It follows then that the Federal Constitutional Court must have reached its decision by this point in order to ensure that an association that is eligible for recognition as a political party does not suffer any disadvantage during the election campaign. The expedited timeframe for a decision offers a strong indication that the Court does not conduct any "incidental" review of statutory provisions during non-recognition complaint proceedings.

bb) Likewise, the fact that § 96a(2) BVerfGG allows a period of just four days in which to state reasons for the complaint indicates that no "incidental" review of statutory provisions is to be conducted during such proceedings, since it would not usually be possible within this timeframe to submit reasons that would substantiate the unconstitutionality of a provision relevant to the dispute.

cc) Furthermore, apart from the provision under § 96b BVerfGG granting the Federal Electoral Committee the opportunity to submit a statement, no allowance is made for the submission of statements in non-recognition complaint proceedings. This again suggests that such proceedings are not systematically designed to allow for the constitutionality of statutory provisions to be reviewed.

b) Further support for the presumption that no "incidental" review of statutory provisions is conducted during non-recognition complaint proceedings is found in the principle that legal protection in electoral matters is deferred until after the election.

aa) This principle, which is enshrined in constitutional law under Art. 41 GG, takes account of the fact that elections are mass scale operations. Legal protection in electoral matters is deferred until after the election for a number of reasons, not least of which is to ensure that elections are timely held. It is therefore unobjectionable under constitutional law that, pursuant to § 49 BWahlG, the possibilities for scrutinising decisions related to the electoral process during the election and its preparation are limited, and that irregularities in the electoral process are generally reviewed only within the framework of electoral scrutiny proceedings conducted after the election.

bb) The principle of deferred legal protection in electoral matters guarantees that potential irregularities in the electoral process are subject to comprehensive review after the election has been completed. This includes a possible review of whether the provisions of electoral law relevant to a challenged decision are constitutional. In cases where electoral scrutiny proceedings are conducted after the election and the Bundestag's decision in these proceedings is challenged by way of a complaint to the Federal Constitutional Court, the Court not only examines whether the relevant provisions of electoral law were correctly applied with regard to the alleged electoral irregularity, it also reviews whether the applied provisions of electoral law are compatible with the Constitution.

cc) The introduction of the non-recognition complaint as a new remedy has not invalidated the principle that legal protection in electoral matters is deferred until after the election. This remedy is an isolated exception that was designed in response to widespread criticism regarding the inability to challenge the Federal Electoral Committee's decision prior to the election.

dd) The exceptional nature of the non-recognition complaint suggests that its scope of application should be determined with restraint. Since the Federal Electoral Committee is bound by the statutory provisions of electoral and party law when deciding whether to recognise an association as a political party for an election, and since it is not authorised to review the constitutionality of the applicable provisions, the natural conclusion is that the scope of the Federal Constitutional Court's review in non-recognition complaint proceedings is limited to whether the statutory provisions were correctly applied by the Federal Electoral Committee.

2. The presumption that no "incidental" review of statutory provisions is conducted during non-recognition complaint proceedings is further reinforced by the spirit and purpose of such proceedings.

a) The purpose of non-recognition complaint proceedings is to grant timely legal protection to associations that are unjustly denied recognition as a political party, thereby guaranteeing them equal opportunities to participate in the election.The provisions governing the design of the proceedings under §§ 96a ff. BVerfGG serve to ensure that elections are timely held, while at the same time allowing for review and possible rectification of the Federal Electoral Committee's decision excluding an association from participating in an election.The non-recognition complaint thus has a kind of hybrid character: although the proceedings essentially amount to principal proceedings, they must be conducted in a highly expedited manner and are ultimately treated like preliminary injunction proceedings.In this respect, the non-recognition complaint differs from all other proceedings before the Federal Constitutional Court and amounts to a sui generis remedy that is subject to its own unique standards.

b) In terms of the underlying concept, non-recognition complaint proceedings are not aimed at providing a mechanism to challenge and comprehensively review objective violations of the law. Rather, they are designed to give associations that have lodged a complaint against the Federal Electoral Committee's non-recognition decision under § 18(4) BWahlG an opportunity to have that decision swiftly evaluated with a view to taking part in the election.

II. The question of whether the Court should consider deviating from the presumption against constitutional review in non-recognition complaint proceedings in cases where the manifest unconstitutionality of a provision of electoral law threatens to produce serious electoral irregularities need not be decided here. The issue does not arise in the present case. Any constitutional concerns regarding § 2(2) second sentence and § 23(2) PartG - the provisions relevant to the complainant's non-recognition decision - do not reach the level of manifest unconstitutionality.

1. The financial reporting obligations applicable to political parties under §§ 23 ff. PartG have their constitutional basis in Art. 21(1) fourth sentence GG. This states that political parties must publicly account for their assets and for the sources and use of their funds. It is therefore generally not objectionable if the legislator assumes that only a complete financial report, drawn up with the involvement of external expertise, is sufficient to comply with the obligation under constitutional law to provide citizens with information about a party's income, expenditure and assets. Even if the financial reporting obligations imposed on political parties by §§ 23 ff. PartG do interfere with their freedom of activity protected under Art. 21(1) first and second sentence GG, these obligations are in principle justified by Art. 21(1) fourth sentence GG. However, the foregoing only applies if the option of withdrawing a group's recognition as a political party complies with the requirement to strike an appropriate balance between, on the one hand, the freedom of political parties under Art. 21(1) first and second sentence GG and, on the other hand, the constitutional obligation of financial disclosure under Art. 21(1) fourth sentence GG.

As yet, the Federal Constitutional Court's case-law offers no guidance on whether § 2(2) second sentence PartG succeeds in this regard. In particular, it remains to be decided whether § 2(2) second sentence PartG might in fact violate Art. 21(1) first and second sentence GG, at least in those cases where it orders recognition to be withdrawn from smaller, financially less capable parties that are not covered by the exemption under § 23(2) fourth sentence PartG.

2. Despite these concerns, it is not manifestly obvious that the provisions of § 2(2) second sentence in conjunction with § 23 PartG are unconstitutional in any way that would be relevant in the present proceedings for the reasons stated above. An assessment of the constitutionality of these provisions would require establishing the factual accuracy of the complainant's allegation that political parties not covered by the exemption under § 23(2) fourth sentence PartG are unable to comply with the obligation to have their financial reports audited and certified, or at least that the burdens associated with this obligation unreasonably impair them in the exercise of their constitutional mandate as a political party. Furthermore, it is not manifestly obvious that the statutory financial reporting obligations and the consequences of non-compliance fail to satisfy the constitutional requirement to strike an appropriate balance between the freedom of political parties and obligations of financial transparency.

III. The narrow scope of review in non-recognition complaint proceedings does not violate the guarantee of effective legal protection under Art. 19(4) GG.

The availability of the non-recognition complaint as a pre-election remedy does not prevent complainants from using the framework of post-election legal protection to challenge the constitutionality of the provisions of electoral and party law relevant to an association's non-recognition as a political party. While some commentators within legal scholarship argue that post-election review is precluded in principle by the scope of application of a non-recognition complaint, this standpoint fails to consider the general rule that during non-recognition complaint proceedings the Court does not conduct an "incidental" review of statutory provisions and therefore does not examine any of the associated constitutional questions.

It is therefore possible for the constitutionality of these provisions to be challenged separately in (post-election) electoral scrutiny proceedings. The Federal Constitutional Court is only bound by the substantive legal force of earlier decisions if the subject matter of the dispute and the parties involved are the same. In non-recognition complaint proceedings, the sole subject matter of the dispute is the question of whether the relevant statutory provisions of electoral law were correctly applied when deciding not to recognise an association as a political party under § 18(4) first sentence no. 2 BWahlG.

IV. In light of the above, it follows that the only question at issue in the non-recognition complaint here was whether the decision not to recognise the complainant as a political party for elections was based on the proper application of § 18(4) first sentence no. 2 BWahlG in conjunction with § 2(2) second sentence, § 23 PartG. The Court found that it was.

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