Germany’s main political parties have agreed to reform the country’s Federal Constitutional Court in a bid to ensure the court’s independence and ability to function even in turbulent times.
Chancellor Olaf Scholz’s three-party coalition of Social Democrats (SPD), Greens and liberal Free Democrats (FDP) and the conservative opposition CDU/CSU agreed to set down the number of judges and chambers as well as other key requirements for the structure of the Constitutional Court in Germany’s constitution, also known as the Basic Law.
Up until now, changes that risk political instrumentalization would theoretically be possible with a simple majority.
In contrast, a two-thirds majority in the Bundestag and Bundesrat – the lower and upper houses of parliament – is always required to amend or supplement the wording of the Basic Law.
The court has 16 judges and two chambers known as Senates.
An opening clause is also intended to ensure that the other electoral body can step in when electing new judges if there is no two-thirds majority in favour of a candidate in the Bundestag or Bundesrat over a longer period of time.
However, the principle that half of the members of the Federal Constitutional Court are elected by the Bundestag and half by the Bundesrat is to be retained.
The planned reform is the result of confidential consultations between representatives of the SPD, Greens, FDP and CDU/CSU parliamentary groups.
“The Federal Constitutional Court is a protective shield for fundamental rights, but its own protective shield needs even more resilience,” Justice Minister Marco Buschmann (FDP) said.
Anchoring the position of the court in the constitution itself would serve to strengthen the independence of constitutional jurisdiction, according to a joint paper by the four parliamentary groups.
The parliamentarians involved made reference to efforts “in individual European countries” that are or were aimed at questioning the independence of the judiciary.
Recent developments in neighbouring Poland were included in the considerations.
In Poland, the former national conservative PiS government, which has since been voted out of office and led the country from 2015 to 2023, began reorganizing the judiciary according to its own ideas as soon as it took office.
