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Karlsruhe suspends the passage of a law

July 13, 2023

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The World

Fernando Simón Yarza

Professor of Constitutional Law of the University of Navarra

Just a few days ago, the Federal Constitutional Court of Germany confirmed that the precautionary suspension of the legislative procedure can be an important guarantee for the protection of fundamental rights. In a decision dated July 5, 2023, the Karlsruhe court ordered the German Bundestag to halt the government's project reform of the Energy in Buildings Act (Gebäudeenergiegesetz). 

The reason for the suspension was precisely the introduction of an extensive amendment last Tuesday, July 4, which substantially altered the project and left the deputies with no time for its study and discussion calmly. The second and third readings of the project, as well as the final vote in the Chamber leave, had been scheduled for Friday, July 7, which left them very little time to examine it. For this reason, a CDU/CSU deputy, Thomas Heilmann, immediately filed an organic dispute claiming that the procedure violated his rights of political participation. 

As a matter of urgency, Germany's highest body of guarantees has admitted the resource and has suspended the processing of the rule as a precautionary measure. More specifically, it has declared that the interest in avoiding an irreversible violation of the plaintiff's right to political participation must prevail, in this case, over the impairment that the precautionary suspension of the legislative procedure could entail for the parliamentary autonomy of the Bundestag. This interference could result, in the worst case scenario, in a delay in the adoption of the law, while the continuity of the legislative procedure could have meant the entrance in force of a rule contrary to the fundamental rights of the deputy. 

The decision of the Karlsruhe Court reminds us, once again, that Parliament is not sovereign, nor is it above the Constitution. The infringement of the rights of parliamentarians is not a prerogative of the legislator, but an anti-democratic act. Needless to say that the case just mentioned is of interest B in Spain. 

The institutional crisis of last December revolved around a similar assumption in many aspects, although it is true that the magnitude of the risk of fraudulent approval was much higher in our country. Here, the majority coalition that supported the Executive of Sánchez tried to alter the renewal by thirds of the Constitutional Court, allowing the Government to appoint the two magistrates that correspond to it without the committee General of the Judiciary (CGPJ) having appointed its own. Likewise, an attempt was made to deprive the Court's plenary session of the Executive Council of its skill to verify the suitability of candidates for such a high magistracy [cfr. art. 10.1.i) LOTC], and an attempt was made to eliminate the requirement of a qualified majority of 3/5 in the appointments of Constitutional Court justices made by the CGPJ [cfr. art. 599.1.1º LOPJ]. In order to circumvent the parliamentary discussion and to bypass the mandatory reports of the committee of State and the CGPJ, these intended reforms were included in two amendments to an organic bill that had no material connection with the composition of the Constitutional Court, in clear contravention of constitutional jurisprudence [cfr. SSTC 119/2011, and 155/2017]. 

It was not, as in Germany, a problem of technical complexity in amendments to an energy law, but a nuclear attack on the separation of powers and, therefore, on the rule of law. 

In its advertisement of the resolution passed last July 5, the German Federal Constitutional Court states that "it is obvious" that the articulation of a legislative procedure can, as a whole, "infringe the participation rights of the individual member of the Bundestag". In these circumstances, the granting of the precautionary measure does not properly depend on an anticipated evaluation on the merits, something that the German Federal Constitutional Court avoids and that - it is necessary to point out - the Spanish Constitutional Court should have avoided in its order of precautionary suspension of December 19, 2022. 

Strictly speaking, constitutional precautionary protection must depend, in substance, on a comparison of the risks that may arise in the two possible scenarios of misalignment between the decision on the measure and the decision on the merits. As the German Federal Constitutional Court has repeatedly stated, "the consequences that would arise if the interim measure were not granted and the claim of unconstitutionality were subsequently successful must be weighed against the harm that would result if the interim measure were granted but the resourcewere unsuccessful". 

In its decision of 5 July last, the German High Court held that fundamental rights must prevail: a) On the one hand, if the interim injunction were granted and the application were unsuccessful on the merits, there would be "considerable interference in the autonomy of Parliament or of the parliamentary majority". It is true that, "in principle, in proceedings for precautionary measures, such interference must be avoided", which is why the precautionary suspension of the processing of a law must be something truly exceptional. b) However, the Court warns that, "if the precautionary measure is not granted, and if the lawsuit is successful on the merits", there would be a serious and irreparable damage to the right of political participation of the appellant Member of Parliament. This "irreversible and substantial violation of his participation rights" has repercussions on the "relationship between the constitutional bodies", and must be assessed "to the detriment of Parliament and its autonomy". 

As I have already pointed out, the decision handed down by the Court of Karlsruhe supports the thesis of those of us who believe that the Spanish Constitutional Court, last December, acted in a substantially correct manner. Analogously to what happened in Germany, the source of the institutional aggression that took place in our country were two partial amendments to an organic bill; and, also here, it was deputies who requested the suspension of the legislative process in order to protect their rights of political participation. 

The Spanish Constitutional Court suspended the procedure by means of an order, issued on December 19, whose legal coverage is in no way inferior to that of its German counterpart -in fact, article 56 of the Organic Law of the Constitutional Court contains clearer authorizations, if possible, than those contained in art. 32 of the German Federal Constitutional Court Act-. The success of the Spanish Constitutional Court in fail in precaution the processing of the amendments in December cannot lead us to ignore, in any case, the spurious yields that the illegitimate amendments reaped as an instrument of pressure. If, paraphrasing the humble Prussian miller in his dispute with Frederick II the Great, we can affirm that "there are still judges in Karlsruhe" ("Es gibt noch Richter in Karlsruhe"), the state in which the Spanish Government has left the Constitutional Court in this legislature raises even more doubts. 

As for the reactions to the rulings of the various courts in their respective countries, the contrast is equally striking. In Spain, on December 20, 2022, the President of the Government accused the Constitutional Court of being a power at the service of the PP; and, in a threatening tone, he said that the Parliament was going to speak loud and clear. In Germany, as reported by the Frankfurter Allgemeine Zeitung, the leader of the Socialist SPD parliamentary group , Rolf Mützenich, stated: "We take grade of the decision of the Federal Constitutional Court, and we will not adopt any more decisions in the Bundestag this week". For his part, the liberal spokesman for the FDP, also a member of the government coalition that submitted the suspended rule , also expressed his respect for the decision.