Judgment on the heating law: what the traffic light complaint means – and what does not

This much is certain: the verdict caught the traffic light coalition off guard. Less than 48 hours before the actually planned parliamentary decision on the heating law, the Federal Constitutional Court stopped the project in an urgent procedure. This means that a last-minute decision before the summer break is off the table.

The court judgment is one that wanted to clear up the controversial issue as quickly as possible. Now it should take two months longer: The traffic light parliamentary groups want to bring the heating law, which is actually called the Building Energy Act (GEG), to its target at the beginning of September, as the parliamentary group leaders of the SPD, Greens and FDP announced.

But what does the decision by Germany’s highest court actually mean for future legislative processes? Many important questions remain unanswered after the announcement from Karlsruhe, says constitutional lawyer Alexander Thiele from the Business & Law School in Berlin star.

“That’s exactly what was not decided yesterday”

How would you explain to a layman what the Federal Constitutional Court decided? One or the other tabloid newspaper even reported that the heating law had been stopped.

Yesterday, the Federal Constitutional Court merely ruled that the heating law cannot be decided this week. However, it did not comment on the Heating Act itself or finally on whether the shortened enactment procedure actually violated the rights of members of parliament.

Why?

Because the Bundestag would have had the opportunity to decide on the GEG in a special session with a little more time, the court instructed the Bundestag to do exactly that in order not to risk finding a violation of MPs’ rights in the later main proceedings , but the law has long since been passed. In other words, the GEG could have been decided this month – if the Bundestag had called a special session. The traffic light group leaders have now decided against it. It is still completely open whether the shortening of the enactment procedure really violated the rights of Deputy Heilmann – that was exactly what was not decided yesterday.

The CDU member of the Bundestag Thomas Heilmann had filed a complaint with the Federal Constitutional Court because he saw his rights as a member of parliament violated by the rapid legislative process. He applied for a temporary restraining order. This application was “predominantly” and “in essence” successful, writes the Federal Constitutional Court in its justification. Where is the success – and where did Heilmann not get it right?

Heilmann’s success lies in the fact that the planned decision on the GEG cannot be made this Friday, at least. Heilmann had also requested that the Federal Constitutional Court also stipulate that a final vote can only take place 14 days after the text of the law has been transmitted, so that MPs have the opportunity to deal with the law in detail. The Federal Constitutional Court rejected this second part of the application and thus made no explicit specification for the necessary processing time.

What does the verdict mean for the future of parliamentarism; What are the consequences of the judge’s decision for future legislative procedures in the Bundestag?

We will have to wait for the decision in the main matter, because the court has not yet decided on the question of a possible violation of the rights of members of parliament. However, I would see it as problematic if the court were to make overly strict requirements, especially with regard to a kind of minimum processing time. Here, too, one has to say that the procedure corresponded overall to the provisions of the rules of procedure, which the Bundestag unanimously gave itself. In this respect, I would also advise at this point: dare more politics.

So there are still unanswered questions that need to be answered? The grounds for the judgment say, for example, that “closer examination” is still required as to whether the procedural design of the traffic light was “unlawful”.

In fact, the court has not yet made a decision on the matter and only marks the points in the interim order that it will then have to clarify in detail in the later comprehensive decision. This also and specifically includes the question under which conditions a certain reduction in the referral times is possible. This has not yet been clarified in case law and will therefore soon be discussed in detail for the first time.

Very few expected that the lawsuit would be successful – even the Union faction probably initially distanced itself from the urgent application of its own MP against this background. You too were surprised by the verdict, you tweeted shortly after the decision. Why?

With the temporary injunction, the Federal Constitutional Court is interfering deeply with parliamentary autonomy and thus with highly political processes. It does this to protect the rights of members of parliament. At the same time, however, in my view, political rationalities are not sufficiently taken into account – the political process is interpreted as completely rationally controllable.

What do you mean?

Especially in a parliamentary system of government with a working parliament, there is generally no provision for every member of parliament to read up on all questions comprehensively. How should that work? And what processing time do you actually think is reasonable if things have to be done quickly? In this respect, there are very difficult questions here, so that the consideration made seems a bit one-sided to me – not least the question of legal certainty for citizens with regard to a law that is to come into force on January 1, 2024, comes up in the Decision a little too short. A compromise would therefore have offered itself: refraining from an interim order and dealing with the issue of the potentially problematic issuing procedure in the later main issue. In future cases, the political space could then have based itself on the specifications contained therein.