07 Juli 2023

Having a Break

Juuuust a minute. Wait, wait, wait. Stop right there. Not so fast. Easy now. Hold your horses.

The Federal Constitutional Court, or more precisely: its Second Senate, or even more precisely: five of its eight judges have stopped the Bundestag from passing the hotly contested Heizungsgesetz (heating law) this week. The motion was filed by the conservative MP Thomas Heilmann, who feels that his right under Article 38 of the Basic Law to participate equally in the parliamentary deliberation and decision-making process has been infringed upon. The rush to get the bill through parliament before the summer break, he argues, would deprive him of the chance to get to the bottom of what was being put to the vote. The synopsis of the federal government’s bill is 94 pages long, and the explanatory memorandum another 14 pages. The actual amendment was tabled on Tuesday, and on Friday the bill was supposed to pass the second and the third reading. No, no, no! That’s all way too fast. In order to exercise his mandate conscientiously, MP Heilmann needs at least 14 days, he claims. To think. To read. To consider. To wrap his head around all the intricacies. After all, as a representative of the whole people and subject to his conscience alone, he wants to do the right thing, doesn’t he? God forbid he votes against that law now when it’s actually quite good. Or the other way around!

Does the individual deputy Heilmann’s right to thorough- and thoughtfulness against the whole Bundestag demand more deliberation time in this particular case? Hm, says the Second Senate in Karlsruhe. Perhaps it does. Perhaps not. That needs to be thoroughly and thoughtfully considered. If it does, poor MP Heilmann would be deprived of his rights for no good reason if he had to vote on Friday anyway. If it doesn’t and MP Heilmann gets his way nevertheless, the Bundestag, as a constitutional organ, would have to accept a considerable encroachment on its autonomy, the effects of which it could, however, contain itself by scheduling a special session before the end of July. Which would be worse?

The former, finds the Bundesverfassungsgericht and stops the legislative process in its track. No vote on Friday, no passing of the law before the summer break, so MP Heilmann has all the time he needs to rack his brains over how worthy he considers the government’s heating law to be, and the Second Senate can reflect in peace on exactly what obligations result from the principle of equal participation of MPs in parliamentary decision-making for the design of legislative procedures, and we all together will go into the summer break ahead of us without a passed Heizungsgesetz, but with the power that lies in calmness.


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A break. Don’t we all need one? We are all going crazy with all the stuff going on out there. The other day was the hottest ever recorded, we read somewhere, and the summer hasn’t even started for real. Something urgently needs to be done, but the more urgent things become, the more difficult it seems to be to remain capable of political action at all. Germany is governed by a three-party coalition, a novelty by itself, two of which are in fact political opponents and the third of which seems to be increasingly calcifying into an apparatus of organised just-leave-me-aloneism. Those who feel the dwindling of the remaining time as the dwindling of their own future become more and more desperate, make all the more stress and noise and commotion, and those disturbed in their need for calm and security react all the more irritably, resentfully and rabidly, and here we are, in the summer of 2023, with the AfD at 20 percent on the federal level.

As far as the heating law is concerned, it is not easy to say what the intervention from Karlsruhe is actually supposed to be good for. The governing coalition had organised, in a lengthy and laborious enough manner, a majority for their law. MP Heilmann belongs to the outvoted minority. This is not undemocratic, but the exact opposite. That MP Heilmann was prevented by the procedure from fulfilling his opposition role in a way that endangers the functioning conditions of parliamentary democracy is not readily apparent to me. In any case, the coalition has made it clear that it will pass the law in September exactly as it would have passed it now on Friday. So that there is clarity about what will apply in the heating cellars of the Federal Republic from 1 January 2024. So that we can get some peace and calm now. So that this painful matter doesn’t ruin our summer, too.

But maybe this is not just about the heating law? What the Second Senate wants to protect the outvoted minority in the Bundestag from is an „abusive acceleration of the legislative process“. Abusive: I am very curious to see what the Senate will make of this term in its decision on the merits. One of the hallmarks of authoritarian populist constitutional politics is what I would call, building on Roman Guski, the abuse of a position of democratic dominance: making use of one’s democratically legitimised right to exercise political power in a self-contradictory way by using it to immunise oneself against rule-of-law control and democratic competition and thus to puncture the legitimising basis of one’s own power. I think it is extremely important in these dark times to mark this as a self-contradictory, abusive and unlawful use of the law and to ban it accordingly. Is that what the Senate has in mind with this? It wouldn’t be the first time that it has used a suitable pending case to unfold an elaborate legal theory which, in terms of the case at hand, ultimately does not apply. If it did that here in the sense of a robust theory of constitutional abuse, that would be worth the delayed passage of the Heizungsgesetz three times over, as far as I’m concerned.

And quite apart from that, one more reason why the injunction by the Karlsruhe court deserves my approval is the fact that we do indeed all need a break now. Have a break, have a Kit-Kat. We need to calm down, we need to go to the beach, we need a cool drink and a good read and some hammock time. We can’t always be drudging, we can’t always be arguing. We need a break.

See you at the end of August or beginning of September!1).

The Week on Verfassungsblog

… summarised by PAULA SCHMIETA:

What reforms are needed to prepare the – increasingly heterogenous and perhaps fragile – EU for enlargement? CHRISTIAN CALLIESS calls for developing constructive solutions instead of glossing over problems and makes a start by formulating several reform proposals.

The EU Commission is working on a European framework for search and rescue in the Mediterranean. According to MARLENE STILLER, the framework – which allegedly aims at improving cooperation between Member States and other actors – risks to impede civil search and rescue operations by way of extensive administrative burdens.

The EU’s General Court dismissed the matter René Repasi v the European Commission, due to lack of standing of Repasi, a Member of the European Parliament (MEP). PIELPA OLLIKAINEN investigates the arguments for and against standing of MEPs and their impact on the inter-institutional (im-)balances.

This week, the ECJ held in Meta Platforms v Bundeskartellamt that when assessing a dominant position, competition authorities may take the GDPR into account to determine effects on competition and consumers. HANNAH RUSCHEMEIER welcomes this decision and comments on it from a data protection law perspective.

Would the regulation of cyberspace by liberal democratic values be beneficial? LEONID SIROTA argues that whilst it is helpful to think of internet regulation in constitutional terms, we should try to understand cyberspace’s current constitution instead of turning to classic constitutionalism.


Für das neue Forschungsprojekt „Staatliche Eingriffe in private Endgeräte zur Strafverfolgung“ sucht das Bayerische Forschungsinstitut für Digitale Transformation in München wissenschaftliche Mitarbeitende (Predoc/Postdoc, TV-L E 13, Voll-/Teilzeit, Bewerbung bis 23.07.). Das Projekt untersucht in einem interdisziplinären Team über drei Jahre den Umgang mit Schwachstellen, Notwendigkeit des Zugriffs auf das Endgerät, Regulierung von Mitwirkungspflichten und technische Realisierungsmöglichkeiten.

Weitere Informationen finden Sie hier.


TIL LEICHSENRING comments on the ECJ’s ruling on Poland’s muzzle law. He argues that the judgment constitutes a promising first step in response to the Polish government’s ‘extended disciplinary systemtargeting the judiciary.

The destruction of the Kakhova Dam in Ukraine potentially violated prohibitions under multiple fields of international law. So, which field to apply? The proposed international crime of Ecocide might be a solution, since it brings different field of international law together in a system of lex parallelis, says MATTHEW GILLETT.

A week ago, the US Supreme Court ruled in Biden v Nebraska that – following the major question doctrine – it was not in the power of the executive branch’s power to regulate the repayment of student loans. MARK BUSE explains how the six conservative Justices use the major question doctrine as an ‘all-purpose weaponto curb the administrative state’s power.

Also week ago, the Brazilian Electoral Superior Court disqualified Ex-President Jair Bolsonaro from running for any electoral position in the next eight years. EMILIO PELUSO NEDER MEYER & THOMAS BUSTAMANTE analyse the case and emphasise that the ruling was no legal innovation but the application of existing laws.

The Kenyan President experienced a major set-back due to the High Court’s ruling that he exceeded his powers when appointing 50 Chief Administrative Secretaries – that the public had opposed in a participation process. This, so JOSHUA MALIDZO NYAWA, evidences a shift from symbolic constitutionalism to real constitutionalism.

In Australia, the Minister for Immigration can intervene in visa decision on ‘public interest’ grounds. MARIA O’SULLIVAN analyses the recent series of High Court cases on the matter (Davies and ENT) but remains concerned that these broad discretionary powers might not be compatible with fundamental rule of law principles.


Das Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht lädt in Kooperation mit der Württembergischen Landesbibliothek Stuttgart zu der Vortragsreihe „Ukraine?!- Völkerrecht am Ende?“ ein. Am 12.07.2023, 18h, spricht Dr. Raphael Schäfer zum Thema „Grenzland. Die Ukraine in der Geschichte des europäischen Völkerrechts“.

Informationen zum Programm und zur Teilnahme in der WLB finden Sie hier. 

Dies ist der Link zur Online-Teilnahme.


The recently presented National Security Strategy repeatedly refers to the „free international order„. STEFAN TALMON explains where the term originated and how it is used as a political slogan against China as ‘systemic rival’.

Despite the necessary qualified minority, the CDU/CSU parliamentary group was unable to establish a committee of inquiry into the cum-ex deals. This may be historical, however, the government’s arguments against the motion remain unconvincing, so PAUL J. GLAUBEN.

In a recently published judgement of the BVerwG, the court transferred ECJ case law as ‘set of guidelines’ to the German legal context in order to address empirical and prognostic uncertainties in asylum procedures. Yet it failed to further substantiate this ‘set of guidelines’, criticises VALENTIN FENEBERG.

The expert commission set up by the Berlin Senate in the matter of ‘Deutsche Wohnen & Co enteignen’ found the endeavour to be constitutional. ANNA-KATHARINA KÖNIG & SOPHIE OERKE discuss the commission’s innovative proposal, which bridges the previously irreconcilable legal understandings of Article 15 of the Basic Law. Furthermore, GEORG FREIß & TIMO LAVEN announced by the coalition government – possibly a retardation measure. DANIEL HAEFKE also identifies a delaying tactic by the Senate, which was somewhat facilitated by the expert commission’s style of argument.


That’s all for this week. All the best to you, have a great summer, and see you all back here, refreshed and revitalized, in a few week’s time!

Max Steinbeis

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1 Of course, Verfassungsblog will go on as usual, and so does our Thuringia project. So little time!