Definition and Legal Classification of Faction Change
The faction change describes, in the parliamentary system, the process by which a mandate holder leaves one parliamentary group and joins another, or positions themselves as a non-affiliated member of parliament. This phenomenon occurs in German representative bodies such as the Bundestag, state parliaments, municipal councils, and other elected committees. The faction change is relevant in constitutional law, electoral law, parliamentary rules of procedure, and party law.
Constitutional Foundations
The Free Mandate
According to Article 38 (1) sentence 2 of the Basic Law (GG), members of the Bundestag are representatives of the whole people, not bound by orders and instructions, and subject only to their conscience. This results in the so-called free mandate, which, in principle, enables the faction change as an exercise of parliamentary independence. Neither parties nor factions can bind their members to their own organization or force them to remain.
Relationship to Party and Parliamentary Group
Party membership and parliamentary group membership are to be distinguished from one another. While the party shapes the election platform and generally submits candidate proposals, the parliamentary group is the union of like-minded members for forming the political will within the parliamentary sphere. Changing factions does not affect party membership but can result in internal party disciplinary measures (see below).
Legal Effects of Faction Change
Effects on the Mandate
A change in membership does not generally affect the mandate itself. According to the principle of the free mandate, the seat in parliament remains with the individual member irrespective of faction affiliation. The exercise of the mandate continues to be fully possible, although being without a faction can result in significant disadvantages regarding parliamentary rights (e.g., participatory rights, speaking rights).
Effects on Faction Strength and Parliamentary Majorities
Faction change influences the strength of parliamentary groups, causing shifts in majorities, committee assignments, and the allocation of parliamentary functions. The affected faction loses, and the receiving faction gains in influence. The rules of procedure generally regulate the minimum size for faction status, so that faction change can sometimes lead to the loss of this status.
Rights and Duties of Non-affiliated Members
Non-affiliated mandate holders are subject to specific restrictions. They frequently have reduced speaking times, less representation in committees, and fewer financial resources. Their participatory rights are primarily governed by the respective rules of procedure of the parliament.
Rules of Procedure
Federal and State Level
The rules of procedure of the Bundestag, state parliaments, and municipal committees set the prerequisites for the creation, membership, and change within and between factions. A member of parliament can leave their faction at any time and join another, but is subject to the new faction’s statutes and admission procedures.
Minimum Sizes and Faction Status
The minimum number of members required to form a faction is determined by the rules of procedure (e.g., Bundestag: at least five percent of members, at least 37 members, see § 10 GOBT). If a faction drops below this threshold, it can lose its status. Some parliaments provide auxiliary structures such as ‘group’ status for smaller coalitions, which come with limited rights.
Party Law Aspects
Party Regulatory Consequences
A faction change can trigger internal party measures. Parties frequently have sanction mechanisms such as a warning, regulatory actions, or expulsion from the party, especially when changing to a competing faction. Compliance with these measures is ensured through intra-party arbitration procedures and judicial review. However, party membership is generally independent of faction affiliation.
Relation to List Elections
In electoral systems with proportional representation by party list (e.g., state parliaments, local elections), a faction change does not lead to the loss of the mandate. There is no legal obligation to retain a seat won on the list within the same faction or party; this underlines the principle of the free mandate.
Jurisdiction Regarding Faction Change
Court rulings have emphasized the constitutionally guaranteed freedom of mandate. The Federal Constitutional Court has repeatedly clarified that coercion to remain in a faction is inadmissible (BVerfGE 80, 188; 44, 308), while internal party procedures are governed by the party’s statutes, as long as the rights of the member of parliament are not unlawfully restricted.
Faction Change in International Comparison
Internationally, the approach to faction change varies significantly. In some countries, there is an obligation to resign the mandate when changing factions (‘anti-defection law’). In Germany, this is not permitted as the principle of the free mandate applies. Such regulations conflict with the aim of ensuring the independence of parliamentary representation.
Summary
Faction change is a vital element of parliamentary self-determination and is comprehensively legitimized from a legal perspective. It derives from the constitutionally guaranteed free mandate, which protects the independence of members of parliament. The consequences of a change primarily affect influence, rights, and duties within the parliamentary context as well as possible internal party reactions. All regulations and legal consequences are specified by the respective rules of procedure, party rules, and jurisdiction.
See also:
- Law concerning Members of Parliament
- Faction (Politics)
- Party Law (Germany)
- Rules of Procedure of the German Bundestag
Frequently Asked Questions
What formal requirements must be met for a faction change?
A faction change generally requires that the member of a parliamentary body, such as the Bundestag or state parliament, formally declares their departure from one faction and, if applicable, their entry into another faction. The resignation is effected by written notification to the faction’s executive or the body’s leadership and does not require a special reason, as the free mandate is guaranteed by Article 38 GG. Joining another faction generally requires its approval, usually by majority resolution of the receiving faction under its rules of procedure. Sometimes the rules of procedure of the particular parliament govern the process for changing factions, such as notification requirements to the presidium or publication in the official record. In the case of forming a new faction, specific quorum requirements apply, for example, a minimum number of members.
What are the legal consequences of a faction change for the exercise of the mandate?
The member’s mandate remains unaffected by a faction change, as German law expressly protects the so-called free mandate, particularly under Article 38 (1) GG. However, the change does affect rights and duties linked to faction membership. This especially concerns speaking times, committee appointments, claims to human and material resources such as staff and allowances in accordance with rules of procedure and laws governing members. Moreover, possibilities of influence in parliamentary proceedings, such as in motions or initiatives, can change substantially through new faction membership. A faction change can also affect positions filled according to factional proportionality, such as committee chairmanships or presidium offices, so that the change may be accompanied by the loss of such offices.
Can a faction change be legally challenged?
A faction change is generally an expression of the exercise of the mandate and, unless specific legal or statutory provisions are violated, is not subject to challenge in the classic legal sense. The free exercise of the mandate is constitutionally protected. Internal decisions by factions, such as on admission, may be subject to civil court scrutiny if, for example, an application for admission is refused for non-statutory reasons. Disputes within a faction over admission or exclusion are usually resolved in the faction’s or party’s internal arbitration procedures; only after these are completed is recourse to the courts available. In the event of alleged violations of the MPs’ law or the parliamentary rules of procedure, a review by the Council of Elders or the parliamentary presidium may be possible.
What impact does a faction change have on committee memberships?
Membership in parliamentary committees is generally tied to faction membership. A faction change therefore often automatically ends the existing committee memberships, since seats are allocated according to factional proportionality. The new faction decides whether and to which position the new member is appointed to committees. If moving to a smaller faction or becoming a non-affiliated member, it is possible that the member will not receive ordinary committee membership, but may participate only as a substitute member, provided the rules of procedure allow this. For public-law committees outside parliament, such as broadcasting councils, a faction change may lead to the deprivation or automatic withdrawal of membership.
How do parties and factions regulate the consequences for membership status in the event of a faction change?
Parties and factions usually regulate how they handle faction changes in their statutes and rules of procedure. A change can result in internal party disciplinary measures, such as expulsion from the party or loss of internal offices, provided this is stipulated in the relevant statutes. Statutory requirements for exclusion procedures must be observed, such as the right to be heard, justification, and appeals. Often, a balance between the right to freely exercise the mandate and internal loyalty obligations is necessary. Factions largely regulate admission and exclusion autonomously at their own discretion, unless parliamentary rules specify particular conditions. Exclusion from a faction automatically ends membership in the relevant committees and can also result in loss of financial entitlements.
What obligations exist with regard to the disclosure or notification of a faction change?
A faction change usually requires formal notification to the executive of the existing, and where applicable of the new, faction as well as to the parliamentary presidium. The specific notification obligations result from the respective rules of procedure of the parliament. Often, the change must also be announced publicly during a plenary session, so that the composition of factions and, thus, proportional relationships remain transparent. Updating faction affiliation is also mandatory for the allocation of factional funds, premises, and committee rights. In some parliaments, notifications are officially documented in the official gazette or minutes. Timely and correct notification is necessary to ensure that all legal and organizational consequences of the change take effect.
Are those wishing to change subject to a waiting period or similar restrictions?
German law generally does not provide for any statutory waiting periods or grace periods for faction changes. The resignation is effective immediately and entry into another faction can follow straight away unless the new faction’s internal regulations expressly lay down time requirements. In individual cases, factions may set internal periods or waiting days for new members or returnees in their rules of procedure, but these are rare and must comply with higher-ranking law, in particular the principle of the free mandate and professional freedom. Any internal party regulations can be subject to judicial review if they violate legal standards.
