In Karlsruhe, the importance and form were twice out of proportion on Tuesday.

With the usual expense of an oral pronouncement, the Federal Constitutional Court ruled on a marginal aspect of the election of the Bundestag Presidium in the morning.

A more important clarification followed in writing a little later.

The AfD parliamentary group therefore has no right to appoint a Vice President of the German Bundestag.

Marlene Grunert

Editor in Politics.

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Its rules of procedure grant all parliamentary groups the right to be represented on the Presidency.

As the constitutional court has now clarified, this right is subject to an important reservation: that of choice.

The Bundestag finally votes on its vice presidents.

And it would be incompatible with a free election "if a parliamentary group had the right to a certain election result," according to the constitutional judges.

They rejected the lawsuit brought by the AfD parliamentary group as “obviously unfounded”.

However, this right to participate is not unconditional.

Finally, Article 40 of the Basic Law stipulates that the Bundestag “elects” its President and his representative.

In this respect, it is not about a “right to appoint” but about the right to nominate a member of parliament for election.

The Federal Constitutional Court has now clarified the differences in great detail.

There can be no obligation to choose

There are passages like from a basic course in democracy.

The decision states, for example: "Elections are characterized by freedom of choice, although eligibility may depend on the fulfillment of certain requirements." The "legitimatory added value" associated with an election cannot be achieved if there is an obligation to choose one certain candidates.

And further: "The election act is not subject to any judicial control beyond procedural errors, which is why its result does not require any justification or justification".

In its lawsuit, the AfD had demanded, among other things, “precautions” to ensure that a rejection of its candidates was not determined by “improper reasons”.

The Federal Constitutional Court has now also clarified the obvious in this regard.

Free elections correspond to both the free mandate and the principle of democracy.

Therefore, “no measures would be considered that would result in individual members of parliament being obliged, directly or indirectly, to disclose or justify their intention to vote or their vote”.

If a faction were able to push through a vice-president, "the election would be emptied of meaning".

The constitutional protection of the minority does not aim to "protect them from factual decisions of the majority and the results of free elections".

The Federal Constitutional Court has thus ended a dispute that has occupied the Bundestag and the judiciary for years.

In the past, the AfD had failed several times to legally enforce its inclusion in parliamentary bodies;

However, the Federal Constitutional Court had not yet decided on a main case.

Only urgent applications from the AfD had failed in Karlsruhe.

The parliamentary group there also lost before the Bavarian Constitutional Court last summer.

It was about the election to the parliamentary control committee of the state parliament.

On Tuesday morning, the judges of the Second Senate had decided on a preliminary question for the election of the Bundestag Presidium - which had to be announced orally.

Ultimately, it was an organ dispute.

Only if these proceedings are not obviously unfounded do they have to be dealt with orally and ended with a public announcement.

Applicants are therefore sure to receive a certain amount of attention;

In the end, the AfD in particular knew how to use this for itself.

Filling the presidency is the task of the parliamentary groups

The preliminary question concerned the elections of the Bundestag Presidium in autumn 2019. Even then, the AfD candidate did not get the required majority in either of the two ballots.

AfD MP Fabian Jacobi then suggested another candidate, which the Presidium rejected.

Individual MEPs have no right of proposal here.

On the other hand, the AfD faction moved to Karlsruhe.

And in this process, too, she referred to Article 38 of the Basic Law.

The free mandate protected therein includes the right to take part in the forthcoming elections in Parliament.

This also includes a right of proposal.

The Presidium of the Bundestag, on the other hand, pointed out that filling the Presidium is a task for the parliamentary groups.

You alone have the right to propose.

The Second Senate of the Constitutional Court now considered this view to be justifiable.

The judges made it clear that Article 38 of the Basic Law extends to "all subjects of parliamentary decision-making".

The norm therefore also has an effect when it comes to the internal organization of Parliament – ​​including the necessary elections.

However, the right to equal participation does not apply without limits, as the Constitutional Court made clear.

A restriction of the right of proposal to parliamentary groups is permissible in order to open up "inter-group potential for understanding and compromise" and to improve the working capacity of Parliament.

Furthermore, every MEP is free to campaign for specific candidates within their group.