With the exception of Land lists submitted by parties representing national
minorities, only such parties that have obtained at least 5 % of the valid second votes cast in the
electoral area or have won a seat in at least three constituencies shall be considered in the
distribution of seats in the German Bundestag among the Land lists.
However, direct mandates for constituencies obtained by an independent candidate or a party
for which a Land list was not approved or to which a restrictive clause applies shall always be
retained by the candidate or party in question.
Appeals have been submitted to the constitutional courts on a number of occasions against the
five per cent clause, mainly on the grounds of a supposed violation of the principle of equality.
The courts have repeatedly confirmed the clause as a “modification of equality in proportional
representation in order to oppose splinter parties“. According to these judgments, however, a
restrictive clause may not require more votes to be obtained than the number justified by the
potential danger ensuing from the splintering of parties.
The restrictive clause was introduced for elections to the German Bundestag especially in
view of developments under the Weimar Constitution, which did not contain a restrictive
At the first election to the German Bundestag held in 1949, it was sufficient for parties to
obtain at least five per cent of the votes cast in one Landor at least one direct mandate in order
to be able to participate in the distribution of seats. In the subsequent Bundestag elections, the
restrictive clause was extended to the whole electoral area. This resulted in a concentration of
seats on a very limited number of parties. From 1961 to 1980, there were four parties (SPD, CDU,
CSU and FDP) represented in the German Bundestag; from 1983 on, also the party of the GRÜNEN, and
since 1990 DIE LINKE (formerly PDS) as a further party. The latter, however, only won two direct
seats in the election to the 15th German Bundestag and thus did not participate in the distribution
of seats on the basis of second votes.
For the election to the 12th German Bundestag, the first all-German election, a special
provision was made on the basis of a decision by the Federal Constitutional Court whereby the five
per cent restrictive clause was applied separately to the territory of the former GDR on the one
hand and to the territory of the Federal Republic of Germany as defined prior to 3 October 1990 on
the other. The Court was of the opinion that a common five per cent clause applying to the
electoral area as a whole would be a much greater burden for the parties which had been active up
to that point only on the territory of the former GDR as compared to the parties which had been
active only in the territory of the former Federal Republic of Germany. Since the election to the
13th German Bundestag, the restrictive clause has again been applied to the electoral area as a
Section 6 (6) of the Federal Elections Act (BWG)
European elections: 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
Last update: December 2011
©2012 The Federal Returning Officer