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No Success for Peter Gauweiler's applications against the ratification of the EU Constitution

Federal Constitutional Court - Press Office


Press Release No 35/2005 dated 28 April 2005
See also decision dated 28 April 2005 - 2 BvR 636/05 and 2 BvE 1/05 -

No Success for Peter Gauweiler's applications against the ratification of the EU Constitution

The Second Senate of the Federal Constitutional Court dismissed the application under the dispute between organs procedure directed against the Bundestag and did not accept the constitutional complaint for decision. This also disposed of the applications for the grant of a temporary injunction made at the same time.

Facts of the Case:

The applicant and complainant is a Member of the German Bundestag. He opposes the decision of the Council of Elders of the German Bundestag to give a second and third reading to the German Act of Ratification of a Constitution for Europe and hold a vote, all to take place on 12/13 May 2005. In his capacity as a Member of the German Bundestag, he feels that this decision violates his right in Art 38 para 1 sentence 2 Basic Law, and he asserts that the intended Ratification Act cannot be reconciled with the constitution and the principles of the state (dispute between organs procedure). As a citizen of the Federal Republic of Germany, he claims that his basic rights to political freedom in Art 2 para 1 Basic Law and to representation by the German Bundestag in Art 38 para 1 sentence 2 have been violated. He further states that he can rely on the right to resistance in Article 20 para 4 Basic Law, which is equivalent to a basic right (constitutional complaint).

In essence the decision is based on the following reasons:
1. The application under the dispute between organs procedure is inadmissible. The applicant has no right to make an application. It was held that the fixing of the dates under attack here cannot violate the applicant's rights. By holding a second and third deliberation, the German Bundestag satisfies the preconditions for correct legislative procedure provided by domestic parliamentary law, and at the same time facilitates the expectation expressed in the constitution that Members of the German Bundestag should be able to form an opinion on the bill during open deliberation. Only free debate in the German Bundestag provides the link between legislative procedure and a solid development of an informed opinion, which makes it possible for Members to accept responsibility for their decisions.

2. The constitutional complaint is inadmissible. It was held that only the Ratification Act itself constitutes a suitable subject of the constitutional complaint, not the earlier stages, when it is read and voted upon in the German Bundestag. In this respect, an act of public authority which might infringe the rights of the complainant is missing. Reading and voting are integral parts of legislative procedure. They do not create any direct effect on the citizen.

The Court found that there is just as little ground for the complainant's opposition to the fact that the German Bundestag deals with this matter at all and places it on its agenda. The decision of the Council of Elders does not generate any legally relevant effect on the citizen.

It was held that the possibility of lodging a constitutional complaint against the Act of Ratification of the Treaty Establishing a Constitution for Europe immediately after conclusion of the legislative procedure in the Bundestag and Bundesrat, before certification and promulgation, ensures that the complainant's interests are adequately taken into account. For instance, the Federal President declared in the constitutional court proceedings regarding the Act of Ratification of the Maastricht Treaty that he would not sign the instrument of ratification until the Federal Constitutional Court had decided the main proceedings. Likewise, the Federal Government assured in those proceedings that, for the time being, it would not deposit the instrument of ratification.

Decision dated 28 April 2005
- 2 BvR 636/05 und 2 BvE 1/05 -

Karlsruhe, 28 April 2005

(Translated by Andrea Müller, London)