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Minimum representation clause

Up until and including the 2021 Bundestag election, parties that had received less than 5% of the valid second votes cast in the electoral area (restrictive clause) but had won a seat in at least three constituencies (in the 1953 Bundestag election, a single constituency was sufficient) were also taken into consideration when the seats were distributed among the parties’ Land lists. In principle, the minimum representation clause was repealed in the amended electoral law for the 2025 Bundestag election.

In its judgment of 30 July 2024, however, the Federal Constitutional Court ruled that the 5% restrictive clause in Section 4 (2), second sentence, number 2 of the Federal Elections Act currently contravenes Article 21 (1) and Article 38 (1), first sentence, of the Basic Law. Until amendments are enacted, the restrictive clause will therefore continue to apply, subject to the condition that political parties that receive less than 5% of the second votes will be excluded from the distribution of seats only if their candidates have secured the most first votes in fewer than three constituencies.

The minimum representation clause will therefore also apply in the 2025 Bundestag election. However, it must be noted that the constituency candidates with the most first votes in their constituency will only enter the Bundestag if the first votes are sufficiently backed by second votes.

The clause has come into effect in four Bundestag elections thus far:

• 1953 Bundestag election:

The Deutsche Partei (DP) got a mere 3.3% of the valid second votes but had a total of 15 seats in the German Bundestag because it won 10 constituencies. The Deutsche Zentrumspartei received 0.8% of the valid second votes and one constituency seat and entered parliament with a total of 3 representatives.

• 1957 Bundestag election:

In the 1957 Bundestag election, the DP only received 3.4% of the valid second votes but won 6 constituency seats. As a consequence, it participated in the allocation of seats on the basis of Land lists and secured 17 seats altogether.

• 1994 Bundestag election:

The PDS won 4 constituency seats and 4.4% of the valid second votes. It was assigned 26 Land list seats.

• 2021 Bundestag election:

DIE LINKE won 3 constituency seats and 4.9% of the valid second votes. In addition to the 3 constituency seats, the party was also assigned 36 Land list seats.

Up until and including the 2021 Bundestag election, parties which had won fewer than three constituency seats were not included in the distribution of Land list seats. In the 2002 Bundestag election, the PDS managed to secure 4.0% of the valid second votes. With two constituencies won and thus two seats in the German Bundestag it did not, however, participate in the distribution of Land list seats.

Pursuant to the electoral law for the 2025 Bundestag election, as a rule a party can no longer enter the Bundestag if it has received less than 5% of the second votes cast and secured the most first votes in fewer than three constituencies. Such parties will no longer participate in the distribution of seats based on second votes. Therefore, even if a candidate wins a constituency seat, the seat is not backed by sufficient second votes for the party, which is a requirement.

Section 2 (7) of the European Elections Act provided the basis for the restrictive clause. As the Federal Constitutional Court declared the relevant provision invalid on 9 November 2011, the 5% or 3% restrictive clause has ceased to apply for European elections since the 2014 European Parliament election.

Last update: 11 February 2025