Only three days after the German Federal Parliament (Bundestag) passed a vote of no confidence in the Federal Chancellor Olaf Scholz by a majority of 394 votes, the same Parliament approved by a vast majority of its members a bill that amends the German Constitution. On 19 December 2024, a cross-party bill (here[1]) on the amendment of the Basic Law (Grundgesetz), which aims at strengthening the resilience of the German Federal Constitutional Court (Bundesverfassungsgericht), received the necessary majority of votes in the Federal Parliament.
An amendment of the Basic Law requires a two-thirds majority in both the Federal Parliament and the Federal Council (Bundesrat), Article 79(2) Basic Law. 600 of the 733 (December 2024) members of the Federal Parliament voted for the bill that amends the Basic Law, 69 MPs voted against it (here[2]), with the consequence that the required majority in the Federal Parliament was achieved. One day later, on 20 December 2024, the Federal Council, the representation of the German states (Länder), accepted the bill without amendments (here[3]).
Before the constitutional amendment, most rules on the institutional structure and status of the Federal Constitutional Court (FCC) were set out in the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), which is a federal law and which can be amended by a simple majority in Parliament. Certain principles on the structure and status of the FCC have now been elevated from the Federal Constitutional Court Act (FCCA) to the Basic Law.
Why were these principles elevated from a federal law to the Basic Law?
The incorporation of these principles from the FCCA to the Basic Law ensures that they cannot be changed by simple majority in Parliament. But why was there a need to incorporate them in the Basic Law? After all, most of these principles have been, and still are, codified in FCCA for decades without any problems arising.
The developments in Germany’s neighbouring country Poland and in other European states, has led to calls to enhance the protection of the Federal Constitutional Court against instrumentalization by political actors.[4] Most principles on the organisation and status of the FCC were, prior to the constitutional amendment, only set out in the FCCA, which allows political forces, who hold a simple majority in Parliament, to amend the FCCA and to capture the FCC. The aim of the constitutional amendment is to learn from the experiences of other European states, and to prevent attacks on the independence of the judiciary. Nancy Faeser, the German Minister of the Interior, stated in her speech before the Federal Parliament on 19 December 2024 that when autocrats come to power, they almost always first turn against the effectiveness and independence of the judiciary (here[5]).
Why was the Basic Law changed at this point in time?
If authoritarian forces, which seek to undermine the independence of the judiciary obtained a blocking minority (more than one third of the votes in the Federal Parliament or the Federal Council) in the future, they could prevent a constitutional amendment. Such a blocking minority does not exist at this point in time, which is why it was timely and appropriate to enshrine certain safeguards in the constitution before it is too late (see[6]). The next federal election will be held on 23 February 2025.
The rules that are now enshrined in the Basic Law
The constitutional amendment incorporates two central elements from the Federal Constitutional Court Act into the Basic Law: the provisions on the status of the court and the effect of its decisions. To this end the new version of Article 93(1) of the Basic Law (BL) stipulates that the FCC is an autonomous and independent federal court vis-à-vis all other constitutional bodies, which corresponds to section 1(1) FCCA. The new Article 94(4) BL stipulates that the decisions of the Federal Constitutional Court are binding on the constitutional bodies of the Federal Government and the federal states as well as on all courts and authorities, which corresponds to section 31(1) FCCA.
Moreover, certain principles on the structure and organisation of the FCC have been elevated from the FCCA to the Basic Law. The new Article 93(2) BL provides that the FCC is divided into two senates, each senate consisting of eight judges, which mirrors section 2 (1) and (2) FCCA. The new Article 93(3) BL stipulates that the duration of the term of office is twelve years, but no longer than the end of the month in which the judge reaches the age of 68. Next to the duration of the term of office, this paragraph prohibits re-election of judges. This incorporates section 4 FCCA into the Basic Law. The new Article 93(4) BL provides that the Federal Constitutional Court adopts its own rules of procedure, which are decided by the plenum. This provision mirrors section 1(3) FCCA.
The election of judges to the FCC
Article 93(2) BL states that half of the judges to the FCC shall be elected by the Federal Parliament, the other half by the Federal Council. This provision was already codified in the previous version of Article 94(1) BL. The new Article 93(2) also clarifies that the Federal Parliament and the Federal Council have to appoint half of the judges to each senate.
The FCCA then further specifies the election of FCC judges and provides in Section 6(1) that the judges, who are to be appointed by the Federal Parliament, need to obtain a majority of two thirds of the votes cast or at least a majority of the votes of the members of the Federal Parliament. Section 7 FCCA stipulates that judges, who are to be appointed by the Federal Council, are elected by two thirds of the votes cast by the Federal Council. The two-thirds majority requirement serves the purpose of appointing candidates who enjoy cross-party support.
But what happens if such a majority is not obtained? The new Article 93(2) BL introduces a so-called opening clause, which allows the Federal Parliament to introduce a replacement election mechanism by way of a federal law. To this end, a new paragraph was inserted into section 7a of the FCCA, which provides for said replacement election mechanism (here[7]). This provision stipulates that if the competent electoral body has not elected a successor within three months of receiving a nomination from the Federal Constitutional Court, the right to vote may also be exercised by the other electoral body. A judge elected in this way shall be deemed to have been elected by the originally competent electoral body.
Hence, if the required two-thirds majority in the electoral body (Federal Parliament or Federal Council) is not achieved, a replacement election in the other electoral body is held. The introduction of the replacement election mechanism departs from the principle of parity between the Federal Council and the Federal Parliament in electing judges to the FCC (see[8]). On the other hand, it allows to fill the vacant position within a reasonable period of time without having to give up the tried and tested two-thirds quorum (here[9]). However, this tried and tested two-thirds quorum is precisely the crux of the matter, as it has not been codified in the Basic Law.
The absence of the two-thirds quorum in the Basic Law means that this important feature, which ensures that judges at the FCC have a broad, cross-party support, is not enshrined in the constitution, which has led to criticism (here[10] and here[11]). The two-thirds quorum is only enshrined in the FCCA, which can be changed by simple majority in Parliament.
But both options, codifying the two-thirds quorum in the Basic Law, or codifying it in the FCCA, harbour risks (see[12]). If the two-thirds majority quorum was enshrined in the Basic Law as a permanent threshold, a problem would emerge if democratic parties lost the two-thirds majority in the Federal Parliament and in the Federal Council, respectively. If the two-thirds majority requirement were not enshrined in the Basic Law, but the FCCA (as it is currently the case), then, whoever holds simple majority in Parliament, could amend the FCCA and establish a simple majority requirement for the election of judges to the FCC (see[13]). This simple majority could then be used by the majority in Parliament to install their own candidates.
Why are these rules on the organisation and status so important?
The constitutional amendment that passed the Federal Parliament and the Federal Council on 19 and 20 December 2024, respectively, elevates certain rules on the structure and status of the FCC to the Basic Law. But why are these rules so important? In 2019, Maximilian Steinbeis described a dystopian scenario (here[14]), in which a newly elected Federal Chancellor and his government use the existing legal framework to undermine the independence of the judiciary. Days after taking office, so the fictional story goes, the new government initiates an amendment of the FCCA. The amendment is limited to setting up a third senate in the FCC, in addition to the two that already exist. The newly created third senate shall be responsible for judicial review of actions of the institutions of the state, for abstract judicial review proceedings through which federal laws can be declared unconstitutional, for election review cases and so forth. In other words, this newly created third senate would be responsible for all legal actions against the government. In his fictional story, Steinbeis aptly highlights the vulnerability of the FCC and the judiciary more broadly. He develops an autocrat’s stage script on how to capture the FCC, and he outlines how, step-by-step, existing laws could be used to subvert the separation of powers, the rule of law, and democracy. The constitutional amendment, which passed the Federal Parliament and Federal Council just before the winter break, and roughly two months before the next federal election, forestalls the scenario described by Steinbeis.
The constitutional amendment strengthens the FCC’s freedom from political interference. It prescribes the number of senates and the number of judges in each senate of the FCC, their retirement age, it prohibits the re-election of judges and so forth. Moreover, it codifies the FCC’s status and the effects of its decisions. An Achilles heel remains. The two-thirds majority needed for appointing the judges to the FCC is only codified in the FCCA, which can be changed by a simple majority in Parliament. In sum, the constitutional amendment made it more difficult to capture the FCC and to interfere with its judicial independence. Time will tell whether these safeguards are sufficient.
[1] https://dserver.bundestag.de/btd/20/129/2012977.pdf , 24 September 2024,
[2]https://www.bundestag.de/resource/blob/1034922/413cc1f6777f456077d49c9853be8f01/20241219_1.pdf
[3] https://www.bundesrat.de/SharedDocs/drucksachen/2024/0601-0700/633-24.pdf?__blob=publicationFile&v=1
[4] https://verfassungsblog.de/ein-volkskanzler/ ; https://www.faz.net/einspruch/mehr-widerstandskraft-fuer-karlsruhe-19438606.html
[5] https://www.bundesregierung.de/breg-de/service/newsletter-und-abos/bulletin/rede-der-bundesministerin-des-innern-und-fuer-heimat-nancy-faeser–2327904
[6] https://verfassungsblog.de/die-erste-von-drei-saulen/
[7] Section 7a(5) FCCA, Entwurf eines Gesetzes zur Änderung des Bundesverfassungsgerichtsgesetzes und des Untersuchungsausschussgesetzes, Bundestagsdrucksache 20/12978, https://dserver.bundestag.de/btd/20/129/2012978.pdf
[8] https://verfassungsblog.de/das-resilienzrisiko/
[9] https://dserver.bundestag.de/btd/20/129/2012977.pdf
[10] https://verfassungsblog.de/verfassungskonsenskultur-in-gefahr/
[11] https://verfassungsblog.de/die-erste-von-drei-saulen/
[12] https://verfassungsblog.de/verfassungskonsenskultur-in-gefahr/