Restrictive clause

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 complied with 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 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.

Up until and including the 2021 Bundestag election, the effect of the restrictive clause was lessened by the minimum representation clause, which allowed parties that failed to comply with the restrictive clause to still be considered in the distribution of seats if they had won a seat in at least three constituencies.

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There is no restrictive clause in European Parliament elections anymore. Therefore, all parties and political associations elected in the Federal Republic of Germany are involved in the distribution of European Parliament seats that are reserved for Germany.

Until the 2009 European election, parties winning less than 5 % of the votes cast in the Federal Republic of Germany were disregarded when seats were allocated to German members of the European Parliament. The Federal Constitutional Court declared this restrictive clause unconstitutional in 2011 and also the 3 % restrictive clause introduced as a substitute in 2014 (judgment of 9 November 2011 – 2 BvC 4/10, 2 BvC 6/10, inter alia, and judgment of 26 February 2014 – 2 BvE 2/13, 2 BvR 2220/13, inter alia). In the 2014 European election, no restrictive clause applied anymore in the distribution of seats.

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