Federal Constitutional Court: Peter Frank, previously Federal Prosecutor General, to become a constitutional judge

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Federal Prosecutor General Peter Frank

Photo: Uli Deck / picture alliance/dpa

The CDU/CSU-governed federal states have agreed on the current Federal Prosecutor General Peter Frank as the candidate to succeed the former Saarland Prime Minister Peter Müller (CDU) in the Second Senate of the Federal Constitutional Court. The personnel proposal is currently being coordinated with the SPD-governed states. SPIEGEL learned this from two independent sources. The election of Frank in the Federal Council could thus even take place as early as this Friday.

Originally, the CSU, to which the proposal fell after internal consultations, wanted to propose the law professor, Bavarian member of the state parliament and former Bavarian Minister of Justice Winfried Bausback (CSU). However, after it became known, especially through a report in the Legal Tribune Online, that Bausback had represented a controversial constitutional position in his dissertation on Bundestag electoral law published in 1998, the party has now distanced itself from this proposal and has chosen Frank. At the time, Bausback held views that ran counter to the interests of the CSU in a lawsuit currently pending over the recent electoral reform.

In his dissertation, he expressed doubts about the constitutionality of the so-called basic mandate clause in Bundestag election law. This clause stipulated that a party would participate in the distribution of seats according to the ratio of the second votes cast, even if it failed to meet the nationwide five percent hurdle, but won at least three direct mandates. However, the basic mandate clause was – surprisingly – deleted without replacement in the most recent electoral reform in March of this year with the votes of the SPD, the Greens and the FDP.

The CSU is appealing against this deletion to the Federal Constitutional Court in Karlsruhe, and the case is currently before the Second Senate, the so-called Constitutional Senate. And that's where Bausback, of all people, would have had to have a say in the decision. So far, this has not mattered for the CSU – but at least at the moment there is a danger that it could slip below the five percent of the nationwide second votes.

The new candidate, the Catholic Peter Frank, was born in Lauda, Baden-Württemberg, but studied law in Bavaria and made a career in the Bavarian judiciary. He passed both the First and Second State Examinations in Law as the best in the country. In 1995 he received his doctorate in Würzburg with a thesis on "The Usability of Unlawful Tape Recordings of Private Individuals". Since October 2015, he has been Federal Prosecutor General in Karlsruhe, which is also home to the Federal Constitutional Court. He is a regular guest at events at the Federal Constitutional Court and also speaks up again and again in discussions.

There is a certain time pressure for the election, as Müller was supposed to leave the court at the end of September, but must remain in office as long as no successor is appointed. If no successor is appointed within two months, it would be up to the Federal Constitutional Court to make a personnel proposal – the Union would thus lose its right to nominate, at least formally. That would be the case from the beginning of December.