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Clause on the minimum number of constituency seats required for party representation in Parliament

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.

As the Federal Constitutional Court declared the provisions of Section 2 (7) of the European Elections Act invalid on 9 November 2011 and on 26 February 2014, the five per cent clause (respectively the three per cent clause) cease to apply from the 2014 European Election for European Elections in Germany.

Legal bases

Section 6 (3) of the Federal Elections Act (BWG)

Last update: 1 July 2016