In Bundestag elections, seats are allocated to parties only if they have complied with the restrictive clause or the clause on the minimum number of constituency seats required for party representation in Parliament.
The restrictive clause stipulates that only parties which have won at least 5 % of the valid votes cast in the electoral area are considered in the proportional distribution of Bundestag seats. The restrictive clause refers to second votes only. Therefore, constituency candidates elected by first vote always enter the Bundestag even if they are members of a party which has received less than 5 % of the valid second votes cast.
The restrictive clause was introduced for elections to the German Bundestag especially in view of developments under the Weimar Constitution. The Bundestag was to be prevented from splitting up into a great number of small groups, thereby losing its ability to act. However, parties representing national minorities are excluded from the restrictive clause.
The effect of the restrictive clause is mitigated by the clause on the minimum number of constituency seats required for party representation in Parliament. Parties which do not comply with the restrictive clause are nevertheless considered in the distribution of seats if they have won a seat in at least three constituencies.
There is no restrictive clause in European elections anymore. Therefore, all parties and political associations elected in the Federal Republic of Germany participate in the distribution of European Parliament seats that go to Germany.
Until the 2009 European Election, nominations winning less than 5 % of the votes cast in the Federal Republic of Germany were disregarded when seats were allocated to German members of the European Parliament. The Federal Constitutional Court declared that restrictive clause unconstitutional in 2011 as well as the 3 % restrictive clause introduced as a substitute in 2014 (judgment of 9 November 2011 – 2 BvC 4/10, 2 BvC 6/10 etc. and judgment of 26 February 2014 – 2 BvE 2/13, 2 BvR 2220/13 etc.). In the 2014 European Election the seats were already distributed without there being a restrictive clause.