There will be no Green Party in the Bundestag Organ complaint file against the 2025 federal budget. The organ lawsuit is “not the right instrument,” said Green budget politician Sebastian Schäfer. Instead, the Greens want to “explore” the possibility of individual constitutional complaints, as group deputy Andreas Audretsch announced.
The Greens have been criticizing for months that the special fund endowed with 500 billion euros, to which the debt limit of the Basic Law does not apply, is being misused. Instead of investing in infrastructure and climate protection, the additional financial leeway will ultimately be used for election gifts such as mothers’ pensions and the reduction of VAT in the catering industry.
The starting point for the Greens’ argument is the change to the Basic Law in March 2025. After the CDU/CSU had refused to weaken the debt brake for years, they were suddenly ready to do so after Friedrich Merz’s election victory. Defense spending should no longer be taken into account in the debt brake and there should be a special fund with 500 billion euros for investments, which does not count towards the debt brake.
In addition to the votes of the new black-red coalition, the votes of the Greens were also required in March for the change to the Basic Law. The Greens were therefore able to ensure that the special fund can also be used for climate protection expenses and is only used to finance “additional” investments. This should prevent planned investments from being postponed to special funds and funds from then becoming available in the core budget for election gifts.
In fact, that’s exactly what happened. 19 expenses worth around 20 billion euros that were previously financed in the core budget have been moved to special funds, including the maintenance of highway bridges and tunnels and support for nationwide broadband expansion. In addition, the new expenses of the special fund also include expenses that are clearly not investments, such as operating cost subsidies for hospitals.
Economic experts have criticized the misuse of the special fundbecause this does not provide the necessary growth impulses. But the Greens also see a constitutional violation because, according to the Basic Law, the special fund is intended for “additional investments”. They therefore consider the 2025 federal budget, which was only decided in September 2025 because of the federal election, to be unconstitutional.
The obvious way to have a supposedly unconstitutional law examined by the Federal Constitutional Court is abstract norm control. A corresponding application can be submitted by every state government and by a quarter of the members of the Bundestag. The three opposition factions AfD, Greens and Left could submit such an application together. However, since the Greens do not want to work with the AfD, they cannot use the normal constitutional route.
They therefore commissioned two reports as to whether a lawsuit by the Bundestag faction might be possible. With the organ lawsuit, the parliamentary group could complain about the violation of the rights of the Bundestag. The Hamburg lawyers Johannes Franke and Roda Verheyen see “definite prospects of success” in their report. On the other hand, Trier law professor Henning Tappe comes to the conclusion that the chance of success can be “assessed as low”.
What does “additional” mean?
It became clear that the Basic Law is nowhere near as clear as the Greens publicly argue. The term “additionality” is defined there as follows: “Additionality occurs when an appropriate investment rate is achieved in the federal budget in the respective financial year,” says Article 143h. In the justification for the constitutional change it is formulated more precisely that at least ten percent of the expenditure in the core budget must flow into investments. According to the Basic Law, it is less important what the special fund is spent on, but rather that the investment share in the core budget remains sufficiently large.
The lawyers Franke and Verheyen consider this to be unsatisfactory. They therefore interpret an unwritten additional requirement into the Basic Law that the expenditure from the special fund must really be “additional”. However, they admit that it is “very uncertain” whether the Federal Constitutional Court would follow this argument.
The second expert Henning Tappe, on the other hand, accepts the wording of the Basic Law. He even considers it dangerous if the special fund only finances additional investments. It could then be the case, for example, that if new financial problems arise, urgent investments that have already been planned can no longer be realized because they cannot be financed from the special fund, while additional but not so urgent projects can then be paid for from the special fund.
A second disagreement between the experts arises when it comes to the question of when the rights of the Bundestag would actually be violated. Because not every violation of the Basic Law also violates the rights of the Bundestag. Tappe is based on the previous case law of the Federal Constitutional Court that the rights of future parliaments are only violated if they no longer have any budgetary flexibility at all. Franke and Verheyen, on the other hand, believe it would be sufficient if the leeway of future federal parliaments were “noticeably” impaired. However, they admit that even this may not be the case for individual non-additional expenses from the special fund.
In any case, the Greens in the Bundestag came to the conclusion that, given the uncertain to poor prospects of success, they would not file a lawsuit. In order not to end up empty-handed, they are now propagating the idea of individual constitutional complaints – although this was not recommended by either report.
The constitutional complaint can be used to complain about the violation of fundamental personal rights. The Greens are referring to the constitutional complaints that led to the legendary climate decision of the Federal Constitutional Court in 2021, with which climate protection was declared a state goal. At that time, the plaintiffs argued that their individual freedoms would be at risk if Germany did too little to combat climate change for too long and would therefore have to put the brakes on later.
It seems very questionable whether this argument can also be used to claim that the expenses from the special fund are not “additional”. But perhaps the Greens now have to commission two new reports to recognize this.