Definition and Legal Basis of New Elections
The Term new election refers in a legal context to the renewed conducting of an election, with the aim of filling an office or a body anew. New elections can take place at various levels, including parliaments, local representatives, association bodies or corporate co-determination committees. The ordering and conduct of a new election is governed by comprehensive legal regulations, which cover various requirements and legal consequences.
Definition and Distinction
A new election is to be distinguished from a regular election or a repeat election. While regular elections take place periodically after the expiry of a previously determined term of office, new elections are particularly held when the originally elected body is dissolved prematurely or has become incapable of functioning. In contrast, a repeat election is conducted when a previous election is declared invalid in whole or in part or is annulled for other reasons.
Statutory Reasons and Requirements for New Elections
Premature Dissolution and Loss of Mandate
- Parliaments and State Parliaments: Many constitutions at federal and state level stipulate, for example, that the Bundestag (§ 63 Basic Law) or a state parliament can be dissolved under certain conditions, thus necessitating a new election. Such conditions include, for example, the failure of a vote of confidence or the lack of a government majority.
- Local Representative Bodies: The municipal codes of the states contain regulations on the dissolution of local parliaments, also associated with the initiation of new elections.
- Bodies in Associations or Companies: Loss of a quorum, resignation from office, or the death of members may make early new elections necessary.
Formal Requirements and Legal Consequences
- The authority to order or establish the necessity of a new election is regulated in constitutions, laws, articles of association or rules of procedure.
- With the ordering of a new election, the mandate of the current members comes to an end, although transitional provisions for provisional continuation are often provided.
- The new election must be conducted in accordance with the rules applicable to regular elections.
Differences to a Repeat Election
A repeat election is conducted to correct a faulty or invalidated election, whereas the new election opens a new electoral process for the new composition of the body.
Course and Implementation of the New Election
Initiation and Ordering
The initiation of a new election is carried out by a responsible decision-maker or body, for example, the head of state, the main electoral body, the authority or a chairperson. The legal basis is found in constitutions, electoral laws, association or corporate law.
Election Notice and Deadlines
- The announcement of the new election is made public to ensure equal opportunities for candidates and transparency.
- The deadlines for submitting nominations and the election day itself follow the respective legal requirements.
- Compliance with minimum and maximum deadlines is legally regulated and may be significant in individual cases, for example in the case of an appeal or judicial review.
Election Procedure and Electoral Law
The conduct of the new election follows the existing electoral law for the respective body or office. Key procedural principles include:
- Universality, directness, freedom, equality and secrecy of the election (see Art. 38 Basic Law for Bundestag elections or comparable regulations at other levels).
- Application and nomination procedures, conduct of voting, ballot counting and determination of election results are precisely regulated.
- In the field of corporate co-determination (e.g. works council or staff council elections), the Works Constitution Act (BetrVG) or the corresponding staff representation law applies.
Legal Consequences and Challenge of the New Election
Validity and Assuming Office
Once the election result has been established by the competent electoral body, the elected persons (or body members) are entitled to take office. Regulations on introduction, swearing-in or assumption of office are set out in the relevant laws.
Challenge and Legal Protection
- Election Review: The legality of the new election is subject to review within the statutory election review procedures.
- Appeal and Legal Action: Legal protection can be sought against the validity of new elections in many areas (for example before the election review committee, administrative court or association court).
- The deadlines and requirements for this are determined by law (see e.g. § 48 BWahlG for Bundestag elections).
New Elections at a Glance: Legal Norms and Fields of Application
Key Legal Provisions
- Basic Law (GG): Art. 63, Art. 68 Basic Law
- Federal Elections Act (BWahlG)
- State Constitutions and State Electoral Laws
- Works Constitution Act (BetrVG)
- Municipal Codes of the States
- Articles of Association of Associations and Corporations
Fields of Application
- Political Representative Bodies: Bundestag, state parliaments, local representative bodies
- Professional and Corporate Co-determination: Works council, staff council
- Associations and Foundations: Board, supervisory board, other bodies
Conclusion
The new election is a central instrument for restoring the legitimacy and functionality of bodies in the state, economy, and society. Its implementation is precisely regulated by law and requires compliance with extensive formal and substantive requirements. The ordering and conduct of a new election ensure democratic participation and safeguard the rule of law principles in the composition of bodies and offices.
Frequently Asked Questions
Who is entitled to request a new election?
The right to request a new election varies depending on the relevant body and its statutory or legal regulations. In the context of corporate law, it is usually members of the respective association, shareholders of a stock corporation or partners in a limited liability company who are entitled to request a new election. A common requirement is the achievement of a particular quorum, such as a fraction of all votes or members. In political bodies, parliamentary groups, individual members or the head of state (depending on the state and body) may frequently initiate a new election under regulated circumstances. The entitlement to submit an application is strictly linked to compliance with the respective regulations (such as statutes, rules of procedure or laws). Without a proper application by an authorised person, the initiation of a new election is regularly invalid.
Under what legal conditions can a new election take place?
A new election can primarily be held if certain legal requirements are met. Fundamentally, this is the case when the mandate or the term of office of the body to be elected has expired, a resignation of one or more members has taken place, there is a court order for a new election, or the mandate ends prematurely due to other events, such as a dismissal. In addition, statutes, shareholder agreements or constitutions may contain explicit regulations for new elections, for example after an election has been declared ineffective by a court or for serious breaches of duty by the body. It is always important to carefully examine the underlying regulations to ensure the legality of the measure.
How is the procedure for conducting a new election legally regulated?
The procedure for conducting a new election is governed predominantly by the valid statutory and statutory regulations. Typically, the respective meeting or session must first be convened, subject to the prescribed deadlines and formal requirements. The agenda must clearly contain the item “New Election”. The election itself must then be conducted in accordance with the applicable electoral regulations or statutory provisions, for example regarding the type of election (open, secret, written), the electoral mode (majority or proportional representation), and the counting and determination of the election result. Any rights of challenge and objection for those involved must be considered. The result must be recorded in the minutes.
What are the legal consequences of a faulty new election?
If a new election is conducted in breach of statutory or regulatory provisions, it can be challenged and may be declared invalid in certain circumstances. The challenge may be submitted by voting members, shareholders or stockholders, with particular deadlines and substantiation requirements often needing to be observed. Typical sources of error include failure to provide notice, the wrong electoral mode, lack of quorum, or influence on the election. If a challenge is successful, a court may declare the new election invalid, which, depending on the case, may require a repeat election or interim administration until it is conducted anew.
Which deadlines apply to the scheduling and conduct of a new election?
Compliance with deadlines is essential for the legality of a new election. In companies and associations, articles of association typically specify the minimum deadlines for inviting to the meeting, often between one and four weeks. In political bodies or public corporations, the deadlines usually result from the respective rules of procedure or law, for example, for Bundestag or state parliament new elections. Even after a court order for a new election, a specific period for its conduct is often stipulated, within which it must be held. Violation of these deadlines may render the election open to challenge or even void.
In which cases does the law strictly prescribe a new election?
The law regularly strictly prescribes a new election when the relevant body is no longer quorate, there is no properly elected representative, or this is ordered by a court judgment. If all members of a body permanently resign, are dismissed or are otherwise unavailable, a new election is often mandatorily required to ensure the functioning of the organisation. In the area of public corporations, premature dissolution of parliament may also legally require new elections. The precise design of this obligation must be examined in the relevant special law or statute.
What participation rights do members or shareholders have in a new election?
Members or shareholders have extensive participation rights in a new election, ranging from active and passive participation, to rights to information and speech, through to the right to challenge the election. They may nominate candidates, participate in discussions, and exercise their voting rights. In companies, there may also be special rights such as a minority quorum for motions or the ability to convene extraordinary meetings. Ensuring that these rights are maintained is crucial for the proper conduct of the election, since otherwise the election’s validity might be subject to challenge.
