When the seats are distributed among the parties’ Land lists, such parties shall also be taken into consideration as have not obtained at least five per cent of the valid second votes cast in the electoral area (restrictive clause) but have won a seat in at least three constituencies (in the 1953 Bundestag Election, a single constituency was sufficient).

The clause has applied in three Bundestag elections so far:

1953 Bundestag Election

The Deutsche Partei (DP) had obtained a mere 3.3% of the valid second votes but was represented by altogether 15 deputies in the German Bundestag because it had won 10 constituencies. The Deutsche Zentrumspartei had received 0.8% of the valid second votes and one constituency seat and entered parliament with a total of 3 members.

1957 Bundestag Election

In the 1957 Bundestag Election the DP obtained only 3.4% of the valid second votes but won 6 constituency seats. As a consequence, it participated in the allocation of seats on the basis of Land lists and received 17 seats altogether.

1994 Bundestag Election

The PDS won 4 constituency seats and 4.4% of the valid second votes. It was assigned 26 Land list seats.

Parties which have won less than three constituency seats are not included in the distribution of Land list seats. In the 2002 Bundestag Election the PDS managed to secure 4.0% of the valid second votes. With two constituencies won and thus two seats in the German Bundestag it did, however, not participate in the distribution of Land list seats.

Legal basis

Section 6 (6) of the Federal Elections Act (BWG)

At European elections:

The election is carried out in keeping with the principles of proportional representation on the basis of Land list nominations; every voter may cast only one vote. So far, nominations winning less than 5% of the votes cast in the Federal Republic of Germany have been disregarded in the allocation of seats to German members of the European Parliament. As the Federal Constitutional Court declared the provisions of Section 2 (7) of the European Elections Act invalid on 9 November 2011, the five per cent clause will cease to apply from the 2014 European Election because these provisions are the basis of the restrictive clause.

Last update: December 2011