25/01/2017
The federated states “do not own the Basic Law”. The second Chamber of the Federal Constitutional Court (Bundesverfassungsgericht) has expressed itself in such a thorough manner, by its resolution 2 BvR 349/16 OF December 16, 2016. By this judgement, the Constitutional Court decided by unanimity not to accept the action brought by the Bavaria Party (Bayernpartei) about the possibility to call a consultation on independence in the state of Bavaria. This statement –in implicit contrast to the Member States of the European Union, who do own the Treaties– was used by the Bavarian Constitutional Court in 1991 upon another request of this party, which has listed this answer as “non surprising”, and thinks that the exit from the Federal Republic of Germany is a “legitimate right for Bavaria”[1].
The Bavaria Party has a long tradition in its secessionist pretension, but with a not-so-discreet support in the ballot boxes. This party, founded in 1946 and currently chaired by Florian Weber, registered its better results in 1950, with a 17.2% of the votes. It does not have representation in the Bundestag at the moment, and only received 2.1% of the total votes in the last election for the Bavarian regional parliament in 2013 –its highest rate since 1966.
The judgement –not subject to appeal– of the three judges of the Constitutional Court reaffirms the entire German people as the only sovereign actor in terms of territorial issue, and denies any other secessionist possibility to the federated states, as it is resolved in a single paragraph in which refuses this request, qualified as unconstitutional.: “In the Federal Republic of Germany, as a national state whose constituent power lies with the German people, the federated states do not ‘own the Basic Law’. There is no space for secessionist aspirations in a federated state within the framework of the Constitution. They violate the constitutional order”[2].
As the Frankfurter Allgemeine Zeitung journalist Patrick Banher says, “for a Länder separatism, the Basic Law does not establish any legal starting point, not even a hypothetic one”. This way, “secession would be legally unthinkable”[3].