Decision on the “petition for a referendum against the transport and transhipment of armaments via the port of Hamburg (HVerfG 3/22)

September 1, 2023

According to today’s ruling by the Hamburg Constitutional Court, the “petition for a referendum against the transport and transshipment of armaments via the port of Hamburg” may not be carried out. According to the decision, the petition is not compatible with higher-ranking law. The petition is aimed at obliging the Senate and the Parliament to create and implement a legal regulation that corresponds to the objectives of the initiative. However, such a binding legislative mandate to the Senate and the Parliament cannot be the subject of a petition for a referendum. If the aim was to create a law, a prepared legislative proposal would have to be put to the vote. Moreover, the Free and Hanseatic City of Hamburg lacks the necessary legislative competence for the intended ban on transport and transhipment, which lies exclusively with the federal government. The court’s decision was unanimous.

At the request of the Senate, the Constitutional Court had to decide on the implementation of the petition for a referendum. Its basis is the “People’s Initiative against the Transport and Transshipment of Armaments via the Port of Hamburg”, which collected signatures from March 2021 for a bill according to which “the Senate and the Bürgerschaft [create] within one year a legal basis prohibiting the transport and transshipment of armaments via the Port of Hamburg and … in addition [take] all necessary and permissible steps to implement this prohibition without delay”. The initiative came about at the end of 2021 with the signatures of more than 10,000 eligible voters. The Hamburg Parliament, which subsequently had to deal with the matter, did not pass a resolution corresponding to the proposal of the popular initiative. In April 2022, the initiators requested that a referendum be held, whereupon the Senate appealed to the Hamburg Constitutional Court with the declaratory objective that the referendum should not be held.

According to today’s decision of the Constitutional Court, the objective of a legal basis for a transport and transshipment ban sought by the popular initiative can only be achieved by creating a corresponding law. However, the popular initiative does not refer to a concrete and elaborated legislative proposal, but merely to a mandate to the Senate and the Parliament to go through the usual legislative procedure in the interplay between the legislature and the executive and to enact a corresponding law. The way thus chosen of obliging the Senate and the Parliament to draft and pass a law with the help of a so-called other bill, which is intended for other objects of political decision-making, is inadmissible because of the binding effect of successful referendums. In this respect, there is a difference to legislative mandates of the parliament to the government, which are in principle possible and politically important, but legally always non-binding. If the Senate was requested to draft a bill on its own responsibility and to introduce it into the Parliament, it had to be given the opportunity to examine whether the project was appropriate or legally permissible for overriding political, legal-practical or factual reasons. This decision-making competence of the Senate would be overridden by the bill. This is because the bill contains a binding obligation of the Senate to introduce a bill with a prescribed objective. At the same time, the obligation of the parliament to pass the bill would also be an obligation of each and every member of parliament, which would be incompatible with the freedom of the mandate.

Moreover, the Free and Hanseatic City of Hamburg would lack the legislative competence for a legal ban on the transport and transshipment of military equipment via the port of Hamburg. The intended ban would affect the areas of regulation on the control of war weapons, on the free movement of goods and on the movement of goods and payments with foreign countries, as well as the law on weapons and explosives, which, according to the Basic Law (Articles 26 (2), 73 (1) of the Basic Law), are the exclusive responsibility of the Federal Government. A ban on transhipment and transport could also not be based on the power of the Länder to regulate the law of public property. In particular, the objective sought by the initiative could not be achieved by restricting the permissible use of the port of Hamburg – and thus by dedicating or partially dedicating a public object. In fact, the material focus of the petition for a referendum was still on the prohibition of the transport and transhipment of armaments and concerned the area of the federal government’s exclusive legislative competence. A corresponding dedication provision would therefore violate the principle of so-called federal loyalty, according to which the Länder are obliged not to undermine the legislative competence of the Federation by other regulations in the guise of a dedication.

The Hamburg Constitutional Court is a constitutional body alongside the Bürgerschaft and the Senate. It finds its constitutional basis in Article 65 of the Constitution of the Free and Hanseatic City of Hamburg (HV). As the highest court of the Free and Hanseatic City of Hamburg, it is responsible in particular for the disputes between constitutional organs named in Article 65 of the HV, for decisions on the compatibility of state laws and ordinances with the Hamburg Constitution, for complaints against the validity of elections to the Bürgerschaft and district assemblies, as well as for disputes on the implementation of referendum petitions and referendums.

The Hamburg Constitutional Court consists of the President Birgit Voßkühler and eight constitutional judges. The Bürgerschaft elects the members of the Constitutional Court for a term of six years. You can find more information on the homepage of the Hamburg Constitutional Court: https://www.hamburgisches-verfassungsgericht.de

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