“Resilience lite”: Strengthening the constitutional protection of the German Federal Constitutional Court

Observing attempts to undermine judicial independence in nearby countries due to far-right influence, Germany’s ruling and opposition parties have reached a historic agreement to constitutionalise key safeguards for the Federal Constitutional Court against illiberal capture. But perhaps the most significant aspect of the proposed reforms are the omissions, which seem to be a political move to prevent states from gaining more influence, even at the cost of reducing protections for the Court – writes Markus Böckenförde

After months of extensive debate and discussion, on 23 July 2024, Germany’s governing parties and the largest opposition party announced their agreement on a common strategy to better protect the German Federal Constitutional Court against potential future backsliding reforms and illiberal capture. While the proposed constitutional amendments for the Court are important, such as term and age limits, they are half-hearted, and would not remedy key weaknesses that could still be used by an illiberal parliamentary majority determined to undermine the Court.

Context

In May of this year, the German Basic Law (BL) marked its 75th anniversary. The BL, a constitution drafted against the backdrop of the most horrific experiences of Germany's immediate past, was driven by the question: How was it possible for Hitler and his party to manipulate and unhinge the Weimar Constitution to establish the Third Reich’s dictatorship? This question was particularly pertinent because the Weimar Constitution was considered a highly advanced document. In the view of historian W. Shirer, it was ‘on paper, the most liberal and democratic document of its kind the twentieth century had seen, mechanically well-nigh perfect, full of ingenious and admirable devices which seemed to guarantee the working of an almost flawless democracy’ (p. 56).

In response to the failures of the Weimar Constitution, the Parliamentary Council, a Constituent Assembly established in 1948, devised a constitution designed to achieve a “Wehrhafte Demokratie” (militant democracy). Many of the instruments it created for this purpose have gained recognition beyond Germany, including the constructive vote of no confidence (Article 67), the possibility of banning political parties (Article 21(2)), and the forfeiture of certain fundamental rights like freedom of expression if abused to undermine democracy (Article 18).

The legislative branch retains control over the Court's organisation and procedural matters via the Federal Constitutional Court Act, with the ability to make adjustments by a simple majority vote . . . 

In this context, the newly established Federal Constitutional Court (FCC) was of particular importance. The responsibility ascribed to the FCC by the BL was considerable. The Court’s jurisdiction encompassed 15 (!) distinct categories.[1] However, the extensive powers of the Court were not reflected in its constitutional status. The initial placement of the Court under the authority of the Federal Ministry of Justice, coupled with unresolved issues concerning its relationship with other federal courts and its position vis-à-vis other high state organs (the Bundesrat, the Bundestag, the federal president, and the federal government), contributed to a lack of clarity regarding the Court's constitutional status. The initial cohort of Constitutional Court judges successfully campaigned for greater financial and institutional autonomy, as well as the Court’s unlimited judicial supremacy. Nevertheless, the legislative branch retains control over the Court's organisation and procedural matters via the Federal Constitutional Court Act, with the ability to make adjustments by a simple majority vote in the Bundestag (the first chamber). The only relevant constitutional provision addressing the FCC’s organization is utterly rudimentary. Article 94(1) stipulates:

The Federal Constitutional Court shall consist of federal judges and other members. Half the members of the Federal Constitutional Court shall be elected by the Bundestag and half by the Bundesrat. They may not be members of the Bundestag, of the Bundesrat, of the Federal Government, or of any of the corresponding bodies of a Land.

Until recently, the vulnerability of the Court was not a significant concern for the majority of politicians or the general public. However, the impetus for change came from two mutually reinforcing observations. Firstly, it became evident that in neighbouring Poland, the independence and impartiality of the supreme courts were undermined by measures that were at least formally lawful. Secondly, the Alternative for Germany (AfD) party, identified by the Office for the Protection of the Constitution as a "suspected right-wing extremist" organisation, was gaining considerable support in electoral polls and surveys. The perceived threat from the right became more tangible, leading to consensus that the FCC needed stronger safeguards against the potential influence of a simple parliamentary majority.

Without a predetermined script, the initial discussions organically resulted in the formulation of draft proposals prepared by two different groups . . . 

Consequently, the three governing parties (SPD, Greens, FDP) and the largest opposition party (CDU/CSU) joined forces to secure the requisite constitutional majority (a two-thirds majority in each of the two Houses) for amending the constitution. Without a predetermined script, the initial discussions organically resulted in the formulation of draft proposals prepared by two different groups: one prepared by the Federal Ministry of Justice (FMJ draft), and the other commissioned by the Conference of Justice Ministers at the state level (State Ministers’ draft).

Main points of the two drafts

The FMJ draft proposed incorporating and enhancing structural elements currently found in the Federal Constitutional Court Act (FCCA) into Article 94(1) of the BL. This "upgrade" would mean that changing key structural elements of the Court would no longer be possible with a simple parliamentary majority. Instead, such changes would require a constitutional amendment. The current elements identified for constitutionalisation to prevent the FCC from being packed included:

• — entrenching the two senate (panel) structure of the Constitutional Court within the FCC, each with eight Justices, including three federal judges each, with half elected by the Bundestag and half by the Bundesrat;
• — limiting the term of Constitutional Court judges to one non-renewable term of 12 years and setting an age limit of 68;
• — ensuring Constitutional Court judges remain in office until a successor is appointed; and
• — enshrining the FCC’s status as an autonomous and independent federal court in relation to all other constitutional bodies (§ 1 FCCA) and the binding effect of the Court's decisions and their legal force (§ 31 FCCA).

More significant than the elements included in the package were those that were excluded. Notably, the FMJ draft did not include a proposal to constitutionalise the current two-thirds majority requirement for the election of Constitutional Court judges.

The State Ministers’ draft went further by building on the “three-pillar model” that emerged from the issues discussed in the “resilience debates” over the previous months, and informed by the manoeuvres of the Polish PiS party in undermining the independence and impartiality of the judiciary. The proposal consisted of the following three pillars: (1) constitutionalising well-established status rules for the FCC; (2) overcoming obstructive minorities in the appointment procedure of new Constitutional Court judges; and (3) constitutionally safeguarding the FCCA against amendments by a simple majority.

The first pillar was analogous to the FMJ draft but added the requirement for a two-thirds majority for the election of Constitutional Court judges. The second pillar introduced a mechanism to legally[2] overcome an impasse if a two-thirds majority in the election process of is not achieved due to a block by a parliamentary minority. The existing approach in the FCCA (§7a) does not provide a solution to this impasse, as it merely authorises the FCC upon invitation to propose new candidates for election without binding effect or the requirement for a different (lower) majority for approval. The State Ministers’ proposal suggested that if efforts to achieve the two-thirds majority in one House failed for one year, the other legislative chamber would assume the responsibility of electing the Justice. As in all likelihood such an impasse would occur in the Bundestag, the Bundesrat[3] (in which the governments of the Länder are represented) may benefit from this model. The third pillar addresses the constitutional protection of amendments to the FCCA by transforming the FCCA into a law requiring approval of the Bundesrat for any changes (a “consent law”). This is a familiar category of law in federal Germany.[4] Given that the FCC also serves as the umpire in federal disputes, including the Länder in the process of amending the FCCA would in any case ensure vertical equilibrium between the federal and state levels.

Current proposal

On 23 July 2024, a press release by the Federal Ministry of Justice announced that the representatives of the SPD, Green, FDP and CDU/CSU parliamentary groups had agreed on a proposal for amendments to the BL. The proposal replicated the FMJ draft and incorporated certain elements of the second pillar in the State Ministers' draft, while omitting aspects of the third pillar. Based on this proposal, the intention is to initiate a process of amending the BL and adjusting the FCCA. The goal is to conclude this process within the current legislative period (ending in autumn 2025) as the four parties currently hold a comfortable two-thirds majority in both Houses, which is required for constitutional amendment.

Analysis

In a nutshell, the expected bill:

• (a) Does not constitutionalise the two-thirds majority requirement for the election of Constitutional Court judges. As currently, a simple majority in the Bundestag would still be able to adjust the election procedure in the FCCA.
• (b) Will not constitutionalise a procedure to overcome an impasse in the election process, but rather will apply a two-tiered procedure to be regulated in the FCCA. If two months after the end of the term of an outgoing Justice, no successor is elected, the current default provision of the FCCA (§ 7a) will be activated, allowing the FCC to propose new candidates upon the request of the relevant House. Should the impasse persist for a further three months, the other chamber shall assume responsibility.
• (c) Does not address the issue of constitutional safeguards for the FCCA.

While it was generally welcomed that an agreement had been reached, there is a great deal of confusion about what will not be included in the amendment bill. Former Constitutional Court Judge Michael Eichberger explained that one main rationale for not constitutionalising the two-thirds majority election requirement is ‘the apprehension that the election of Justices could be petrified in the event of a permanent blockade by one or more parties that have a blocking minority of more than one-third of the votes in the Bundestag or Bundesrat.’ If the two-thirds requirement was added to the BL, he added, ‘the (simple) majority would no longer be able to escape this requirement in the event of a blockade by a blocking minority. This is because the two-thirds majority would then be required to amend the Basic Law.’ However, in Judge Eichberger’s view, these concerns are only conclusive if one also refuses to introduce a mechanism that helps to overcome a block by a minority in the election of Constitutional Court judges. Such a mechanism is now available, though not at a constitutional level.

Furthermore, many regard the absence of protection for the FCCA as a significant drawback. This refusal can only be explained as a political manoeuvre. At the national level, there is a desire to prevent an increase in power through co-determination by the federal states, even if this results in a reduction in the effectiveness of the protection afforded to the Constitutional Court.

It is yet to be seen whether this half-hearted reform proposal will succeed in addressing the objections that have been raised or whether it will merely remain “resilience lite” . . . 

It is yet to be seen whether this half-hearted reform proposal will succeed in addressing the objections that have been raised or whether it will merely remain “resilience lite”. It is possible that the three upcoming state elections in the autumn will prompt a rethink if the AfD gains significantly more votes than currently expected.

One shouldn’t forget what became evident—at least in the background—during the discussions and observations of illiberal dynamics in other countries: protecting the FCC by legal means has its limits. The law can make it more challenging to disempower or undermine democratic institutions, but it cannot indefinitely prevent majorities intent on dismantling these institutions in the long term. Weimar remains a cautionary tale.

Markus Böckenförde is Associate Professor of Law and Director of the Comparative Constitutional Law Program at the Central European University (CEU) in Vienna, Austria.

[1] Forfeiture of basic rights (Art. 18); Constitutionality of political parties (Art. 21(2)); Review of election results (Art. 41(2)); Impeachment of the federal president (Art. 61); Disputes between high state organs (Art. 93(1)(1)); Abstract judicial review (Art. 93 (1)(2)); Federal-state conflicts (Art. 93(1)(3)); Removal of Judges (Art. 98); Intrastate constitutional disputes; Concrete judicial review (Art. 100(1)); Public international law actions (Art. 100(2)); State constitutional court references (Art. 100(3)); Continued applicability of federal law (Art. 126); Other dispute specified by law (Art. 93(2) [individual constitutional complaint; Municipal constitutional complaint; Advisory opinion]).

[2] A political solution to this problem would be based on the current practice of electing Constitutional Court judges. The requisite two-thirds majority is attained through informal agreements, as parties are permitted to nominate candidates for specific seats on the respective panels, and the nominated individual is subsequently elected (with only very few exceptions over the last 70 years). If this political solution were to be extended to the AfD, it would also have the occasional right of nomination. However, the established parties are adamantly opposed to this course of action, as it could potentially lead to the FCC being undermined from within.

[3] The sixteen governments of the federal states are represented in the Federal Council, with the weight of their votes varying in accordance with the size of their respective populations (ranging between three and six votes). Each federal state is required to cast its votes in a uniform manner. In the event of a discrepancy between coalition partners within a federal state, the latter is obliged to abstain from voting. It is highly improbable that the AfD will become a coalition partner in a sufficient number of federal states to form a blocking minority, given the current circumstances.

[4] The distinction between a 'consent law' and an 'objection law' is determined by the BL. The approval of the Bundesrat is required for acts only in cases where the BL expressly prescribes this (regulating aspects where relevant interests of the federal states are affected). All other laws are designated as objection laws, in which the Bundesrat can only lodge an objection to the law, which the Bundestag can overrule.

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Suggested citation: Markus Böckenförde,‘“Resilience lite”: Strengthening the constitutional protection of the German Federal Constitutional Court’, ConstitutionNet, International IDEA, 29 July 2024, https://constitutionnet.org/news/voices/resilience-lite-german-federal-constitutional-court

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