Lack of a 2/3 majority in the Bundestag
The Constitutional Complaint against the Act of Approval to the UPCA was based on a number of different asserted violations of the Complainant's fundamental rights.
One of the main grounds of the complaint was the asserted non-compliance with the qualified 2/3 majority requirement of Art. 79 (2). The complainant insofar referred to his so-called 'right to democratic self-determination' ["Recht auf demokratische Selbstbestimmung"] following from Article 38 (1) sentence 1, Article 20 (1) and (2) in conjunction with Article 79 (2) and (3) BL.
When passing the Act of Approval on 10 March 2017, only 38 members of the Bundestag were present. At that time, a 2/3 quorum would have required at least 420 members to be present. The FCC by a majority decision changed its constant practice not to control whether a quorum is reached and held the bill to be invalid, because it violated the complainant in its democratic rights.
The BL, in the interpretation of the FCC, protects citizens (and their right to vote) from a transfer of sovereign rights by which the essential content of the principle of sovereignty of the people is transferred to an entity in the neighbourhood of the EU by not respecting the 2/3 majority requirement of Article 79 (3) in conjunction with Article 23 (1) third sentence BL. In other words, if the Bundestag transfers powers to such an entity not complying with the voting rule, it weakens the right to vote pursuant to Article 38 BL.
The FCC considers Article 23 (1) (cl. 3) BL to be applicable because the Act of Approval is an alternative to the integration programme of the EU (Art. 257, 262 TFEU). Therefore, it finds that the establishment of the UPC is a regulation comparable to changing EU primary law For that reason parliament's Act of Approval is subject to Article 79 (2) (2/3 majority needed).
Dissenting opinion of three of the eight judges
Three judges of the Senate disagreed with the majority of the votes. In their view, the "right to democracy" following from Article 38, Article 20 (1) and (2), Article 79 (3) BL does not entitle a complainant to object to parliament decision not observing the formal majority requirements of Article 23 (1) third sentence and Article 79 (2) BL. According to its scope of protection and ratio legis, the provision of Article 38 BL aims - exclusively - at the realisation of democratic participation rights, but not at a comprehensive formal control of the process of democratic majority decisions.
Other issues raised by the Complainant
All material grounds on which the Complainant based the complaint on were rejected. These grounds included an alleged non-compliance with German constitutional law as (1) the procedure of selection and appointment of the judges of the UPC and their legal status did not meet the requirements of the rule of law ("Rechtsstaatlichkeit"), (2) rights of the administrative committee of the UPC (e.g. adopting UPC rules of procedure) were not legitimately transferred to the UPC as this would allow interventions in fundamental rights and (3) the UPC cost regime was inadequate. The FCC did not hear the complaint that the UPCA violated European Union Law.
The FCC's decision means that the entry into force of the UPCA will be postponed. But the repair necessary does not have to take long (a new parliamentary decision is required). Recent polls indicate that the great majority of industry in Europe and worldwide is still highly interested in the UPC project.
The formality of a 2/3 majority may be remedied quite easily and swiftly, but due to the COVID-19 crisis such remedy may come somewhat later.
Authored by Andreas von Falck, Miriam Gundt, Clemens Plassmann and Winfried Tilmann