In Bundestag elections, seats are allocated to parties only if they satisfy the requirements of the restrictive clause. Up until and including the 2021 Bundestag election, parties were also considered in the distribution of parliamentary seats if they met the conditions of the minimum representation clause.
The restrictive clause stipulates that only parties that have won at least 5% of the valid second votes cast in the electoral area are considered in the proportional distribution of Bundestag seats. The restrictive clause refers to the result of the second votes only. Up until and including the 2021 Bundestag election, constituency candidates elected by first vote always entered the Bundestag even if they were members of a party that had won less than 5% of the valid second votes cast. This will no longer be the case from the 2025 Bundestag election onwards as constituency seats have to be backed by sufficient second votes.
The restrictive clause was introduced for elections to the German Bundestag especially in view of past developments under the Weimar Constitution. It was designed to prevent the Bundestag from splitting up into a large number of small groups, thereby losing its capacity to act. Parties representing national minorities are exempt from the requirements of the restrictive clause, however.
The effect of the restrictive clause was lessened by the minimum representation clause, which allowed parties that did not meet the conditions of the restrictive clause to still be considered in the distribution of seats if they had won a seat in at least three constituencies. Following its amendment in 2023, the Federal Elections Act no longer contained a provision for the minimum representation clause.
With regard to the amendment of the Federal Elections Act, however, the Second Senate of the Federal Constitutional Court ruled, in its judgment of 30 July 2024, 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.
Legal bases
Section 4 (2) of the Federal Elections Act (BWG)
Back to top