November 30, 2023

Federal Constitutional Court rules on legal basis of 2021 Bundestag Election

WIESBADEN/KARLSRUHE – In a judgment pronounced on 29 November 2023, the Second Senate of the Federal Constitutional Court held that the electoral law reform which entered into force in 2020, and therefore the amended Federal Elections Act forming the basis of the 2021 Bundestag Election, is compatible with the Basic Law (BVerfG, Judgment of the Second Senate of 29 November 2023 - 2 BvF 1/21). According to the judgment, Article 1 nos. 3 to 5 of the Twenty-Fifth Act Amending the Federal Elections Act of 14 November 2020 (Fünfundzwanzigstes Gesetz zur Änderung des Bundeswahlgesetzes - BWahlGÄndG) is compatible with the constitutional requirement of specificity and with the principles of equal suffrage and of direct elections as well as with the principle of equal opportunities of political parties. In addition, the Federal Constitutional Court had no constitutional objections with regard to the date on which the provisions to be reviewed judicially entered into force.

Possible repeat election in parts of Berlin

The judgment also provides clarity regarding the legal basis to be applied in the event of an election re-run in parts of Berlin. On 10 November 2022, the German Bundestag decided that the 2021 Bundestag Election was to be repeated in parts of Berlin. The decision did not become final, however, as several electoral complaints were lodged with the Federal Constitutional Court. The Federal Constitutional Court’s decision on the electoral complaint lodged by the CDU/CSU parliamentary group is due to be announced on 19 December 2023.

Until then, it is not clear whether the Bundestag election will be repeated in Berlin and, if so, to what extent. As a repeat election would have to be held within sixty days of the delivery of the judgment, the latest possible date would be 11 February 2024. As far as possible, the Land Returning Officer of Berlin and the Federal Returning Officer have already started preparations for the repeat election.