With the FDP (Liberal Democratic Party) dropping out of coalition talks with the CDU/CSU (Christian Democratic Union and Christian Social Union) and Bündnis 90/ Die Grünen (Green Party), Germany faces an uncertain political future — at a time when any future government has far-reaching decisions to make at the European level. Not least of which, this concerns the Brexit negotiations and specifically the determination over whether ‘sufficient progress’ has been made to proceed to formal trade negotiations in December. The current impasse is largely the result of the inconclusive election outcome in September as well as a testament to the difficulties of bringing four parties together who have opposed each other during the election campaign. This is especially true of the CSU and the Green Party who differ on core migration and environmental policy questions. Given this tense relationship, it was surprising to see the Liberal Democrats end the coalition negotiations and already rumours of disingenuous negotiation strategy are making the rounds in Berlin.
However, it was ultimately the losses of the CDU as well as the (former) coalition partner, the SPD (Social Democratic Party) that made the difficult path towards a so-called Jamaica coalition (named so for the party colours of the coalition partners) the best – and only- viable option. Following its disappointing performance, the SPD categorically ruled out any continuation of the so-called “grand coalition”. This has upset the conventional arithmetic of government, along with the strong showing of the far-right nationalist, xenophobic and nativist Alternative für Deutschland (AfD). Now that the next German government is unlikely to be formed, Germany is left with two equally unattractive options: a minority government under CDU/CSU leadership or fresh elections following dissolution of the Bundestag. The procedure for both is complicated under the German constitution, and this post will seek to shed some light on the constitutional hurdles.
There are broadly speaking two scenarios in which the Bundestag may be dissolved and fresh elections sought, as well as a minority government formed.
Article 68 – Vote of confidence
Article 68 Basic Law permits the dissolving of the Bundestag following a failed vote of confidence for the Federal Chancellor (Bundeskanzler – Chancellor). The Chancellor may seek a vote of confidence and upon losing the vote, may recommend to the Federal President (Bundespräsident – President) the dissolution of the Bundestag. The President then has the right to do so within 21 days, unless the Bundestag elects another Chancellor with an absolute majority of MPs. To date, this procedure under Article 68 Basic Law has been used twice by Chancellors. Both commanded a majority in the Bundestag at the time, but saw it as opportune to seek fresh elections: Helmut Kohl in 1982 and Gerhard Schröder in 2005. However, this avenue to fresh elections is closed, as currently there is only a caretaker government under Angela Merkel which – by definition – does not command an absolute majority in the Bundestag absent a coalition agreement securing the necessary votes. That leaves two further options on the table: a failed election of a Chancellor as an avenue towards fresh elections, as well as the possibility of a minority government.
Article 63 – Election of the Federal Chancellor
Under the constitutional requirements of Article 63 of the Basic Law, the choice between the implementation of fresh elections or a minority government ultimately rests with the President. Following elections, the President has the right to nominate a candidate as Chancellor, Article 63 para.1 Basic Law. This initiates the first election phase, where the nominated candidate must secure an absolute majority and, if successful, is appointed Chancellor by the President. Should the candidate fail to secure an absolute majority, as seems to be the case now if Angela Merkel were nominated, the first election phase is terminated along with the right of the President to nominate a candidate.
A failed first election phase leads to the second election phase where any candidate with the support of at least one quarter of MPs can be nominated, pursuant to §4 of the Rules of Procedure of the German Bundestag – Geschäftsordnung des Deutschen Bundestages. In this second phase, the Bundestag can hold an unlimited number of votes on nominees within the prescribed 14-day time limit (Article 63 para. 3 Basic Law). Again, a candidate must secure an absolute majority to be appointed Chancellor. Should the Bundestag again fail to elect a Chancellor, it immediately moves into the third and final election phase.
In the third election phase, the Bundestag must vote – without delay – on a Chancellor, but a candidate now only requires a relative majority to be successful (Article 63 para. 4 Basic Law). Within seven days, a candidate elected by a relative majority must either be appointed Chancellor by the President, or the President must dissolve the Bundestag. Elections then follow any dissolution within 60 days. If the President should not act within seven days, the successful candidate must be appointed Chancellor and thus forms a minority government. Crucially, the choice between dissolution and a minority government ultimately rests with President Frank Walter Steinmeier.
This complicated procedure for resolving political deadlock is best understood as a reaction of the drafters and the lessons they drew from the Weimar Constitution and the establishment of a fascist dictatorship under the guise of legality in 1933 (the so-called Enabling Act). Deserved or not, the Weimar Constitution has acquired a reputation for political instability and is traditionally criticised for failing to prevent the rise of Nazi Germany. There were certainly a number of reasons why the Weimar Republic ultimately failed, but it would be foolish to ignore the hyperinflation during the Great Depression, the near constant use of emergency powers by successive governments, and the crushing effect of the Versailles Treaty, as predicted by John Maynard Keynes in 1919. In any case, the drafters of the German Basic Law made every attempt to steer politicians towards forming a stable government, and made sure that dissolving the Bundestag would be a difficult endeavour, involving multiple and independent branches of government.
The Bundestag was not granted the right to dissolve itself and dissolution would only be possible in in clearly defined scenarios: once all other options had been exhausted, and solely through separate decisions from several independent branches of government. Dissolution and fresh elections are presented as a last resort and the formation of a stable government, even a minority government, is clearly the preference of the Basic Law under most circumstances. Certainly, contemporary Germany is lightyears away from the destructive turmoil and economic volatility that fuelled unrest and instability in the inter-war years. It speaks to the relative stability of the political system in post-World War II Germany that both a minority government and fresh elections following a failure to elect a Chancellor are unprecedented. The constitutional actors, including the caretaker Chancellor Angela Merkel, will have to decide over the following days which route Germany will take. Unless the SPD reneges on its pledge not to govern, which it reiterated as recently as Monday afternoon, then the two options outlined appear as the only realistic scenarios. From comments made late on Monday, it appears that Angela Merkel favours fresh elections over a minority government, thus potentially starting the complicated process of dissolving the only recently constituted Bundestag.
Stefan Theil is a Research Fellow at the Bonavero Institute for Human Rights, Mansfield College, University of Oxford.
(Suggested citation: S. Theil, ‘An Aversion to Weimar: German Constitutional Hesitance on Dissolving the Bundestag’, U.K. Const. L. Blog (23rd Nov. 2017) (available at https://ukconstitutionallaw.org/))