Seldom has a meeting between the Federal Constitutional Court and the Federal Government been so much in focus as that on June 30th.

At that time, a delegation from Karlsruhe met members of the Federal Government in Berlin, including the Federal Minister of Justice.

As a result, plaintiffs in Karlsruhe submitted requests for bias twice - and failed.

Marlene Grunert

Editor in politics.

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At the end of July, the AfD used the meeting as an opportunity to reject all judges in the Second Senate because of alleged bias;

at the time she complained against Merkel's comment on the Kemmerich election.

From the party's point of view, the fact that the meeting took place shortly before the hearing gave rise to concerns about bias.

The federal government is ultimately the defendant.

The Second Senate rejected this argument as “completely unsuitable” and made it clear that such meetings take place regularly in the sense of a “dialogue between the state organs”.

The court is also "permanently" involved in proceedings that affect the actions of the government or other constitutional organs.

After another bias motion, the First Senate also had to deal with the meeting, for which further details have since become known.

On Monday, the Constitutional Court announced that it had also rejected this application.

"Abstract and timeless questions"?

Three citizens in Karlsruhe who are defending themselves against the federal emergency brake to contain the corona pandemic rejected Stephan Harbarth, the chairman of the Senate and President of the court, and the constitutional judge Susanne Baer because of alleged bias.

Both were there in Berlin.

The plaintiffs argued that Harbarth had a say in the subjects of the meeting, including the subject of "deciding in the face of uncertainties".

Susanne Baer gave a lecture on this.

According to the complainants, the subject was clearly aimed at the corona crisis. One must also fear that the constitutional court has made it possible for the federal government to present arguments against the constitutional complaint. According to her speech manuscript, the Federal Minister of Justice also referred to the pandemic - although she emphasized that she did not want to talk about the ongoing proceedings.

Harbarth commented on the allegations: From his point of view, the topics were suitable for an "exchange of ideas and experiences between constitutional bodies". After all, they concern “abstract and timeless issues” that are reflected in numerous decisions of the court. They could also be discussed without specific reference to pending proceedings. He added: "Accordingly, in the context of the above-mentioned meeting, I did not comment on factual and legal issues relating to pending proceedings."

Susanne Baer also countered the allegations.

In her contribution she explained the perspective that the court takes “on the broad field of decisions under uncertainty”.

It was about abstract considerations “that courts have to deal with the dynamics and complexity of knowledge differently than the legislative and executive branches”.

On factual and legal issues pending or foreseeable pending proceedings, she “in no way” commented.

“Totally inappropriate” arguments

The First Senate decided to exclude both judges. He reiterated that the meeting in itself could not raise concerns of bias. The same applies to the setting of topics. The decision says: The legal questions about the control standards of the court under the conditions of uncertainty are diverse and arise in numerous proceedings. It is an abstract problem. The same applies to Baer's lecture. Nothing else emerged from the speech manuscript of the Federal Minister of Justice. That the subject was proposed to allow the federal government to comment on pending proceedings is a mere assertion.

The plaintiffs had also held statements from Harbarth from a conversation with the FAZ.

When asked whether the system had proven itself in the pandemic, he replied: There were "light and shadow".

On the one hand, Germany has not gotten through the pandemic badly so far.

On the other hand, she pointed out deficits in some areas;

but this is not a systemic defect.

The complainants recognized this as a political statement that gave the Corona policy good marks - an argument that was “completely unsuitable” in the eyes of the Senate.

Rather, it is a “general assessment” of the need for reform in the German state, not an evaluation of individual measures.

The eight judges will presumably make a decision on the federal emergency brake in November.