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 clause.

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 whole. 

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

In 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 clause.