Germany, Constitutional Court, 8 March 2022, No. 2 BvE 1/22 -, Rn. 1-66
Case overview
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Deciding body (Original)
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Link to the full text of the decision
General Summary
The Constitutional Court was called to decide over a dispute between public bodies. The applicants, Members of the German Parliament, looked also for a temporary injunction concerning a provision of the general ruling issued by the German Parliament.
According to the challenged provision, a 2G+ (recovered or vaccinated + booster or tested) had been introduced for plenary sessions, for meetings of the committees of the German Parliament, and for events of the German Parliament.
The challenged provision for the plenary session provided that only vaccinated or recovered persons who have tested negative or have been "boosted" (2G+ rule) could be admitted to the plenary chamber and to the East and West Lobbies, including the Members' Lobby of the plenary level of the Reichstag building. Parliament’s members, members of the federal Government who were tested negative shall be admitted to the designated area and seats in the stands and keep a distance of at least 1.50 meters one from another.
The challenged provision would exclude member of Parliament who were neither vaccinated nor recovered from participating in the commemoration’s hours for the Victims of National Socialism Remembrance Day, which took place in the plenary hall of the German Bundestag.
The Claimants alleged an infringement on the exercise of political rights of the members of Parliament, the principle of equal treatment of members and parliamentary groups, and the constitutional principle of effective opposition derived from the principle of the rule of law. The Constitutional Court has rejected the claim.
Facts of the case
Due to the increased spread of the COVID-19 omicron variant, the German Parliament issued an amended general order on the 11th of January 2022, with the aim of reducing the spread of COVID-19 on the premises of the German Parliament. Initially, the general order was limited in time until the 28th of February 2022.
The general order tightened the access rules for members of parliament because before a 3G rule (recovered, vaccinated or tested) applied to plenary sessions, committees, and events. The amendment restricted the access to members, who complied with the 2G+ rule. Moreover, non-vaccinated and non-recovered members of parliment could attend plenary sessions and committee meetings only in designated seats in the stands. The above mentioned amendments were approved one day later, by the German Parliament.
The Claimants forwarded in their claims concrete difficulties to exercise their mandate because, for example one of the Claimants had been denied access to the meeting of the Foreign Affairs Committee held on January 2022 because the meeting room did not have a tribune. The Claimants pointed out that also during the plenary sessions they had been able to participate to a very limited extent in the parliamentary debate as in the gallery there are no microphones, no tables, and the remaining speaking time is not displayed.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
PublicDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court began its reasoning pointing out that it can provisionally regulate a situation through a temporary injunction if it is urgently required to avert serious disadvantages, to prevent imminent violence or for another important reason for the commonwealth, such as the clarification of a constitutional standard.
A temporary injunction should meet strict requirements. The Claimants should demonstrate that they are threatened with a serious disadvantage if a temporary injunction is not granted. Further, this application should be neither inadmissible from the outset nor manifestly unfounded. The Court is called to apply a strict standard. For this reason, a temporary injunction is issued when the reasons are so serious that it makes it indispensable.
In a dispute between public bodies, it should be considered that the Court by issuing of a temporary injunction would encroach on the autonomy of another constitutional body. The Court has concluded that the Claimants did not meet the conditions necessary for a temporary injunction. They did not sufficiently substantiated their application.
On the argument about the alleged infringement to equal treatment of members and parliamentary groups and the principle of effective opposition, derived from the parliamentary system, the Court has not shared the Claimants’ arguments. The challenged provision was addressed to all parliamentary members and imposed certain rules of conduct on them. The purpose was to protect against the spread of COVID-19 and to keep the German Parliament operational. Accordingly, there was no differentiation of any kind between parliamentary majority or minority. Rather, all parliamentary members were subjected to the same rules, depending on their vaccination or recovery status. Further, the Court has pointed out the limited period of validity of the general ruling.
Regarding the infringement of the exercise of political rights, the Claimants provided examples of impairments to take part in plenary sessions, committees, and events. The Court has not agreed with the Claimants’ arguments.
According to the Court, the disadvantages experienced by the Claimants were not so serious to require a temporary injunction, to avert them. For example, Claimants could participate in the Parliamentary Plenary Session from the gallery, where marked seats were available. A serious disadvantage would have been a complete or extensive exclusion. Moreover, Claimants could participate in debates, exercise their vote right, and submit motions.
Although the general ruling modified the framework conditions for the parliamentary participation of the concerned parliament member, the exercise of political rights remained unchanged in principle and to the essential extent.
Conclusions of the deciding body
The Court has concluded that the Claimants did not provide sufficient arguments in their application for a temporary injunction. About the alleged infringements, the Court has rejected the claim because the Claimants were in the conditions to exercise their political rights linked to their function. However, the Court has left open the question of whether the provided example and its concrete impact could be classified as relevant impediments to parliamentary work.
Implementation of the ruling
The claim has been rejected.
Fundamental Right(s) involved
- Political rights
- Principle of legality (public bodies)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Public bodies and their obligation to respect the law, Art. 20, German Constitution
- Political rights of parliamentary members, Art. 38, German Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout its decision the Constitutional Court has applied the rule of law. The Court has recalled the requirements, which should be met to succeed in an application for a temporary injunction.
Further, the Court has assessed the challenged provision, to check whether the alleged infringements were proven. The challenged provision was applied to all parliamentary members, so there was no infringement on the rights of the parliamentary opposition.
The Court has concluded that the Claimants were not hindered in exercising their rights linked to their roles as members of Parliament.
