—Goran Selanec, Constitutional Court of Croatia
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2025 columnists, see here.]
Several European states recently confronted the challenge of potentially serious disruption of their constitutional courts. Just in the last few months that was the case in Italy and Croatia and in a specific way in Germany. In all three cases the risk of disruption was related primarily to the appointment requirement demanding confirmation of constitutional court judges by a two-thirds majority in parliament. The two-thirds requirement has conventionally been considered a safeguard of independence of a constitutional court, as well as some guarantee of its professional authority. Yet, in all three instances, legal systems grappled with its deficiencies. In Italy, the misuse of the requirement led to a stalling strategy used by the parliamentary majority extending the appointment procedure of four justices over 400 days ending in February. Croatia showed an extreme version of the same staling strategy that led to (literally) last-minute appointments of no less than ten of thirteen justices of the Constitutional Court last December. The German case might be the most prominent due to the wide-reaching influence of the Bundesverfassungsgericht. In December last year, the German Parliament amended the Constitution with explicit intent to increase resilience of the German Constitutional Court (GCC) against the risk of possible abuse of the appointment procedure.[1]
Although distinctive, all three cases involve the issue of exploitation of the two-thirds appointment requirement. True, none of these three instances was radical in the sense of a full political capture of a constitutional court, as seen in Poland[2] and Hungary[3]. The two-thirds requirement is intended to prevent such capture and it tends to work. In Poland and Hungary, the capture was successful because appointment procedures required majority vote. At the same time, as shown by all three cases, the two-thirds majority safeguard offers substantial opportunities for abuse. In Italy and Croatia, the requirement has been used in a manner raising concerns of specific kind of court packing. In Germany, the primary concern relates to the risk of disintegration of the existing cherished model of appointments or even of deliberate obstruction of the Court’s regular functioning. At the same time, all three instances suggest unavailability of the model remedy. Hence the term “the resilience predicament”.
Accordingly, in its simplest term, the resilience debate, emerging chiefly in Germany, concerns circumventing, if not preventing, possible strategies of abuse of the two-thirds requirement, which are intended to paralyse a constitutional court and initiate a constitutional crisis. It is focused on those political environments where a full capture of a constitutional court may not be realistic, yet political forces hostile to the constitutional democracy are on the rise. For them the paralysis of a constitutional court may be an effective strategy to disrupt the system they aim to disintegrate.
The remainder of the text will focus primarily (and due to size constrains) on recent Italian and German developments in an effort to illustrate the resilience predicament generated by the misuse of the two-thirds requirement in the appointment procedures for constitutional courts.
Italian Stalling Strategy
Italian experience illustrates the predicament well. The Italian Constitutional Court (the ICC) has fifteen members. Five judges are appointed by the three highest “regular” courts, five by the President of the Republic, and five by the Parliament. The “triple-five” distribution makes complete capture difficult. This is further reinforced by the requirement of a qualified parliamentary majority: a two-thirds majority in the first three vote attempts and a three-fifths majority beyond that. Additionally, the design facilitates functional stability. The Court’s functional threshold is set at the Plenum quorum of eleven judges. It is not likely that either the President or the Judiciary would fail to use their power to appoint their five members of the ICC. Neither are troubled by factions, unlike the Parliament. Hence, Parliament really needs to satisfy the minimum of one additional member for the Court to be functional.
Through the last decade the Court experienced the rise of the stalling strategy. To weaken the position of opposition parties in the appointment procedure, ruling majorities started stalling individual appointments to the ICC with the specific aim of aggregating additional vacancies. The strategy fostered a compromise built on the principle of “balanced representation”. It favoured distribution of nomination “rights” along party-lines. It favoured ruling majorities simply due to its existing strength. The strategy was noted in 2014 when appointment had been intentionally delayed for over a year. It was again used in the latest round of appointments. Although one position became vacant in November 2023, the appointment was delayed until three additional vacancies became available in December 2024.[4] Two vacancies were filled by the ruling coalition. One was filled by the leading opposition party. According to reports, these three vacancies were an “easy part” of the negotiation process. The stumbling block had been the fourth vacancy. It was the chief focus of the compromise. Once the actors agreed on a “neutral” candidate, all four judges were appointed in February 2025.[5]
The strategy misuses the two-thirds requirement to force out a political compromise built around the notion of “balanced representation” in the ICC. On this approach, professional qualifications do matter. Lesser qualified candidates are politically risky, exposing the nominating party to public criticism and thus inviting a rejection by the blocking minority. However, political affinity in relation to respective candidates matters too. This, of course, is not unique to the Italian system. What does make the Italian case interesting is the stalling for purposes of aggregating vacancies. The strategy risks diminished functionality of the ICC.
Admittedly, the strategy is not the necessary consequence of the two-thirds requirement. Rather, it is a product of its misuse in circumstances of significant mistrust between major political actors. Nevertheless, it does illustrate deficits of the two-thirds requirement. If left unrestrained, the requirement allows political actors to expose the constitutional court to pronounced risks. In the recent reiteration, it seemingly accounted for the fact that larger number of vacancies increase the negotiating pressure due to exposure of the Court to risks of diminished functionality. With four vacancies, the ICC was only one unfortunate event (illness, accident) away from falling below the functionality threshold, which would trigger a constitutional crisis.[6] Deliberate exploitation of that risk suggests that the misuse of the two-thirds requirement aimed for goals that go beyond the concern of “balanced representation” within the Court. The possibility of constitutional crisis may help in clearing the way for a version of court packing.[7] Candidates that would usually not pass the two-thirds majority threshold could get squeezed through due to the gravity of the risk.
The likelihood of such strategy clearly increases with the polarisation of the political and social environment. Moreover, to the extent that polarisation may be driven by the recent rise of political forces prone to dismantling constitutional democracy across Europe, its rise would seem inevitable. For extremists either of the possible outcomes, packing or paralysis of a constitutional court, would be suitable. This seems to have been a driving concern in the German example.
German Constitutionalisation of Resilience
Germany too uses the two-thirds majority requirement for the appointments to the German Constitutional Court (the GCC). Peculiarly, the requirement was not provided by the Constitution, but statutory law (the Federal Constitutional Court Act). Until recently, the German Constitution was thin in terms of provisions regarding the architecture and appointments to the GCC. It merely provided that two houses of the Parliament (Bundestag and Bundesrat) were to appoint half of members of the Court each. Issues such as the number of senates and judges (two separate senates with 8 judges each), negative qualifications, the term of office (12 years), the retirement age (68 years), ban on reappointment, temporary extension of the term until new appointment, and the autonomous power to enact rules of procedure, were only elevated from statute to the Constitution in December 2024. These amendments effectively prevented possibility of conventional court packing.[8] However, they per se are not as effective in guarding against misuses illustrated by the earlier Italian (or Croatian) example.
Moreover, the key peculiarity of the German case is a calculated decision not to enshrine the two-thirds requirement in the Constitution, leaving it as a provision of statutory law. As such it can still be amended by the majority of the Bundestag (the house of representatives) and without the consent of the Bundesrat (the house of the States). This was certainly a controversial decision. [9] Yet, it may reflect a rather pragmatic strategy of protecting the GCC.
The German political landscaped changed quickly and dramatically with the rise of the “far far-right”, which has not been shy to trifle with the darkest parts of the German history. This fact alone clearly suggests a scorn for the conventional constitutional order Germany had been so proud of. The political polarisation became obvious in recent years. Accordingly, there has been clear awareness of the possibility of obstruction of the appointments to the GCC if the far-right acquired a blocking minority in either of the two houses.[10] In contrast to Italy, Germany even allowed a possibility of an extension of the expired term until the new appointment. However, it has never been considered that this is an adequate remedy to the risk of long-term blockade. Wide-ranging authority of the GCC has been tightly related to the still prevailing culture of “constructive compromise”. In contrast to many other legal systems, political compromise necessary to effective appointment procedure was not built around the notion of “balanced representation”. The compromise is not “won out” but constructed. The approach to negotiations is not negative (defensive), but affirmative (cooperative). Candidates are sought for and scrutinized in relation to their position within the socio-political centre, unquestionable expertise and categorical loyalty to the fundamentals of the German constitutional order.[11] A high degree of reciprocated trust among major political actors facilitated establishment of important constitutional conventions, such as the long-term scheduling of the nomination privileges between major political parties. Consequently, Germany so far has not experienced misuse of the two-thirds requirement.[12] In many ways, German efforts to increase the resilience of the GCC are also an attempt to preserve this currently prevailing culture considering the obvious threat from the rise of the far-right.
It is therefore unsurprising that the proponents of the resilience constitutional amendments recognised peculiar limitations of the two-thirds requirement. The requirement has conventionally been appreciated as a vital component of the cooperative character of the appointment procedure and the key safeguard of the independence of the GCC.[13] This conviction was further reiterated by developments of successful capture of constitutional courts in Poland and Hungary (and to some extent political brutalization of the appointment process in the US). At the same time, the possibility of its abuse under the changed political landscape was equally clear.[14]
To counteract the risk of abuse, the proponents did develop a bypass mechanism. The Constitution was amended to include the so called “opening clause”. The provision allows the legislator to establish a mechanism allowing that in the case when the respective house fails to fulfil its constitutional duty of appointment to the GCC, the other house will assume that responsibility upon itself (two-third majority is still rquired). This mechanism was introduced through amendments of the Federal Act on the Constitutional Court. It is a prudent use of the check and balances logic capable of preventing the stalling strategy seen in the Italian case.
The decision to keep the two-thirds requirement on the statutory level might have thus been a product of a pragmatic although risky assessment. Assuming the improbability of the ascent of the far-right to absolute majority in the Bundestag, it may be more opportune to keep insisting on the statutory form of the two-thirds requirement, which is now reinforced by the bypass mechanism. The persistence of the contemporary social support for the traditional cooperative culture underpinning the appointment procedure to the GCC is the key variable in this calculation. While the support holds in strength, attempts to obstruct appointments to the GCC through the two-thirds requirement will likely be perceived as abuse. Consequently, in case of a long-term obstruction of the appointment process, a majority in German society may even support the option of “emergency” statutory repeal of the two-thirds requirement as a remedy for such abuse. This would not be possible if the requirement was elevated to the Constitution.
This is certainly a risky calculation. A political force that would acquire one-third of the seats in the parliament would undoubtedly enjoy sizable popular support. Many of their supporters would perceive that blocking strength as expression of some kind of “a right” to have their “worldview” represented in the GCC. Hence, the statutory repeal of the two-thirds requirement, stripping their representatives of that “right”, would possibly reinforce and broaden their distrust in the legitimacy of the Court. If that was the case, the Court might be better served by some version of the “balanced representation” approach after all. This is all pure theorizing now. Nevertheless, in the German case, such a development would almost certainly mean a change in the prevailing culture of “constructive compromise” and a consequent emergence of a somewhat different Bundesverfassungsgericht. On the other hand, the Court would, at least, possibly manage to preserve the trust of a majority of the German society.
This is a prize that more than a few constitutional courts across Europe struggle with.
Lessons
In short, both cases show that there is no straightforward prescription for the resilience predicament. Answers are local and depend on concrete political and social variables. Yet, one lesson clearly emerges. As illustrated by both cases, the key might be in following prudence of the check and balances principle. Accordingly, if the body entrusted with the appointment responsibility fails, other constitutional actors ought to step in to reestablish lost balance. This is illustrated by the German bypass mechanism. The Italian history of appointment deadlocks offers another example. Faced with the long-term deadlock in the Parliament, the President of the Republic threatened to use its power to call early elections. Check and balances worked.
It is desirable that the actor assuming the responsibility possesses a high degree of democratic legitimacy. Yet, it may be preferable if actors from different branches of government mutually assume the responsibility. Modalities are numerous. For example, borrowing from the prudence of the Italian “triple-five” design, one option could involve a head of a state in co-decision with supreme court or even in cooperation with a threatened constitutional court.[15] There may be room for an advisory role of non-state institutions, such as bar associations or law schools. In short, a successful way out of the resilience predicament, whatever its form, may necessitate sharing of the assumed responsibility between a plurality of actors within a constitutional scheme of check and balances.
Suggested citation: Goran Selanec, The Resilience Predicament, Int’l J. Const. L. Blog, Mar. 26, 2025, at: http://www.iconnectblog.com/the-resilience-predicament/
[1] See https://www.dw.com/en/germany-moves-to-protect-top-court-against-far-right/a-68403671
[2] See https://freedomhouse.org/report/analytical-brief/2018/hostile-takeover-how-law-and-justice-captured-polands-courts
[3] See https://www.cambridge.org/core/journals/european-constitutional-law-review/article/rule-of-law-backsliding-and-memory-politics-in-hungary/652DB062D71BA9CB0C49F07C5E8A4D67
[4] See https://st.ilsole24ore.com/art/notizie/2015-10-02/consulta-appello-mattarella-parlamento-elegga-giudici-massima-urgenza-152625.shtml?uuid=AC0lV08&refresh_ce=1
[5] See https://www.milanofinanza.it/news/corte-costituzionale-eletti-i-4-giudici-di-nomina-parlamentare-202502131404574001?refresh_cens
[6] See https://www.ansa.it/sito/notizie/politica/2024/12/03/barbera-spero-parlamento-sia-rapido-sui-giudici-della-consulta_482ee317-7f9d-4db8-856c-0605c1af2d93.html
[7] See https://www.diritticomparati.it/la-corte-prima-della-tempesta-come-premunire-le-corti-costituzionali-da-futuri-assalti-la-situazione-in-germania-e-in-italia/
[8] See https://blog.bham.ac.uk/lawresearch/2025/01/strengthening-the-resilience-of-the-german-federal-constitutional-court/
[9] See https://verfassungsblog.de/was-man-tun-kann/
[10] See https://www.faz.net/einspruch/mehr-widerstandskraft-fuer-karlsruhe-19438606.html
[11] See https://verfassungsblog.de/verfassungskonsenskultur-in-gefahr/
[12] See https://www.kas.de/documents/252038/16166715/Beratungskulturen.+Wie+Verfassungsgerichte+arbeiten%25252C+und+wovon+es+abh%2525C3%2525A4ngt%25252C+ob+sie+integrieren+oder+polarisieren.pdf/a68323e0-dd86-6b7b-202e-bd4130edb511?version=1.0&t=1658403065191
[13] See https://constitutionnet.org/news/voices/resilience-lite-german-federal-constitutional-court
[14] https://verfassungsblog.de/das-resilienzrisiko/
[15] See e.g. https://www.lto.de/recht/meinung/m/ferdinand-kirchhof-kommentar-schutz-bverfg-ampel-union
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