The Court of Justice of the European Union has ruled that the Commission has failed to fulfil its obligations under the Treaty.
To curb the expansion of the Bundestag, the Traffic Light coalition reformed the federal election law in 2023. However, parts of the new regulation are unconstitutional and need to be revised.
The reform of the Federal Election Act introduced by the Traffic Light coalition is partly unconstitutional, according to a ruling by the Federal Constitutional Court in Karlsruhe. The issue at hand is the abolition of the so-called basic mandate clause in the new election law. This clause allowed parties to enter the Bundestag in proportion to their second vote results, even if they fell below the five percent threshold, as long as they won at least three direct mandates. The court has temporarily reinstated this clause until the legislature enacts a new regulation. (Case No. 2 BvF 1/23 et al.)
The ruling was already circulating online on Monday evening. The document was temporarily available on the website of the highest German court and was reported on by several media outlets. How it came to be published remained unclear initially. The coalition's new regulation, passed by the SPD, FDP, and Greens, has been in effect since June 2023 and is set to be applied for the first time in the upcoming federal election. The reform aims to significantly reduce the size of the Bundestag - from the current level by more than 100 to a maximum of 630 members. To achieve this, the coalition has abolished overhang and equalization mandates.
Overhang mandates occurred when a party won more direct mandates through first votes than it was entitled to seats through its second vote results. These mandates were then retained by the party, with other parties receiving equalization mandates in return. The abolition of overhang and equalization mandates by the Traffic Light coalition is considered constitutional by the judges in Karlsruhe.
Above all, Left and CSU affected by reform
In Karlsruhe, the Bavarian state government, 195 members of the Union faction in the Bundestag, the Left in the Bundestag, as well as the CSU and Left parties, filed suit against the law. Additionally, more than 4,000 private individuals submitted a constitutional complaint. The applicants and complainants saw primarily two fundamental rights violated: the equality of voting rights under Article 38 and the right to equal opportunities for parties under Article 21 of the Basic Law.
In particular, the planned abolition of the basic mandate clause put the CSU and Left at risk. In the 2021 election, the CSU, which only runs in Bavaria, received 5.2 percent of the second votes nationwide. If it were to slip below the five percent mark in the next election, it would be excluded from the Bundestag under the new election law, even if it won most of the direct mandates in Bavaria again. The Left, on the other hand, only entered the Bundestag in faction strength in the last federal election through the basic mandate clause. The party failed to clear the five percent hurdle in 2021 but won three direct mandates. After the split of the Alliance for Progress and Social Justice (BSW), the Left is once again in crisis. In the European election at the beginning of June, it only achieved 2.7 percent.
The ruling by the Federal Constitutional Court in Karlsruhe has highlighted the constitutional issue with the abolition of the basic mandate clause in the new federal election law. Despite other parts of the new regulation being unconstitutional, the court has temporarily reinstated this clause to prevent unfair representation of parties like the CSU and Left, which heavily rely on the basic mandate clause to secure their seats in the Bundestag. Other vehicles, such as overhang mandates, which were also targeted by the Traffic Light coalition, were found to be constitutional by the judges.
