With hackers, fake news and data protection, the grand coalition justified in 2018 why parties needed 25 million euros more each year. However, the Federal Constitutional Court has now reversed the increase.
It’s about people’s trust in politics and the impression that parties are using taxpayers’ money: the Federal Constitutional Court has declared an increase in state party funding by 25 million euros to be void.
The increase to 190 million euros per year decided in 2018 by the then government factions of the Union and the SPD in the Bundestag was unconstitutional, the highest German court ruled on Tuesday in Karlsruhe. It is unclear whether the parties may keep the money paid out so far. (Az. 2 BvF 2/18)
The CDU, CSU and SPD had primarily justified the whopping increase with the growing challenges posed by digitization such as hackers, fake news and data protection on the Internet. In order to be able to cope with such tasks, the parties would need more money.
The decision: The judges basically recognize that the parties have a “permanent additional financial need that cannot be met with the current means”. However, the legislature did not adequately justify the amount of the increase at the time, explained the chairwoman of the Second Senate, Doris König. “The parties must remain dependent not only politically, but also economically and organizationally on the consent and support of the citizens.”
There is an absolute upper limit for the state’s share of party financing – in addition to donations and membership fees. It is adjusted to the rate of inflation, so it increases regularly and was more than 205 million euros last year.
According to König, this upper limit is intended to prevent citizens from getting the impression that the parties are inappropriately helping themselves from public coffers. “Because such an impression can lead to a lasting loss of acceptance for this system,” said the vice president of the court.
With this reasoning, 216 MPs from the Greens, FDP and Left Party, all opposition parties at the time, moved to Karlsruhe – with success. The judges were also critical of the fact that the grand coalition had brought the bill through the Bundestag in just ten days. But that didn’t play a role in her decision. A separate lawsuit by the AfD on this point was rejected as inadmissible in a second judgment (Az. 2 BvE 5/18).
The effects: As a result of the judgment, the increase no longer has a legal basis with immediate effect. The legal situation that was relevant until 2018 will automatically come into force again. This also applies to the currently pending determination of the payments on February 15th.
However, the Bundestag would have the option of passing a new, better-founded law in which the specific financial requirements are listed in as much detail as the constitutional judges are demanding. If the parties had to fulfill new tasks and could not finance the necessary material and human resources on their own, the legislature had “considerable leeway,” said Judge König. However, it must also be taken into account that new developments may save money elsewhere.
The general secretaries of the CDU, CSU and SPD, Mario Czaja, Martin Huber and Kevin Kühnert, spoke out in favor of such a new regulation. “After this verdict, the way is clear to make a new attempt with an appropriately justified law,” said Czaja and Huber. Kühnert said that the democratic parties should “promptly explore together what an appropriate, constitutional justification for the additional needs could look like”.
The big question: The judges have said nothing about whether the overpaid funds since 2019 have to be repaid. Constitutional law experts were rather skeptical. Sophie Schönberger, who represented the Greens, FDP and Left Party, said it was not legally easy to shake final decisions on payments over the past few years. That is at the discretion of the Bundestag administration. The representative of the Bundestag, Joachim Wieland, also said that it would be the “more elegant solution” if the legislature were to clarify this with a retrospective law.
The Bundestag administration said that now that it is clear that the assessment notices for the years 2018 to 2021 with regard to the amount “were issued without a legal basis and are therefore illegal”, a “partial withdrawal of these notices” is now necessary. However, the parties do not have to prepare for an immediate repayment claim. An employee of the administration of the Bundestag told the German Press Agency: “Before the issuance of recovery notices, the parties concerned are heard.”
Representatives of several parties stressed that they could easily repay the money. “We have made provisions for that,” said FDP member of the Bundestag Stephan Thomae. The Federal Treasurer of the Left, Harald Wolf, Green Party leader Britta Haßelmann, the Parliamentary Director of the AfD Group, Stephan Brandner, and SPD Secretary General Kühnert made similar statements.
The basics: State party funding was revised following a decision by the Federal Constitutional Court in 1992. How much money parties get from the state depends primarily on how they performed in the last election.
In addition to the absolute limit, there is also a relative upper limit: the state share must not exceed that which a party generates itself. Because a ban on predominantly state party financing is derived from the Basic Law.
Not only parties represented in the Bundestag and state parliaments get money from public coffers, but also smaller ones. An overview of the Bundestag for the year 2021 makes it clear how much is at stake: 20 parties were therefore entitled to state funding. The spectrum ranges from around 13,600 euros for Team Todenhöfer to a good 56,110,000 euros for the SPD.
Communication on the first judgment (applications from the FDP, Greens and Leftists) First judgment in full Communication on the second judgment (AfD lawsuit) Second judgment in full Bundestag on the decision to increase in June 2018 Bundestag on state party financing Amendment Act of 10 July 2018 Differentiated party financing 2021 Draft law with justification Bundestag on expert hearing on party financing Party law Absolute upper limit 2022 Bundestag on determining state funds Federal Constitutional Court on norm control Federal Constitutional Court on organ dispute proceedings
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