Former Federal Constitutional Court President Hans-Jürgen Papier has stated that the planned swearing-in ceremony for the new federal ministers, set for September, is unconstitutional. However, he also noted that this procedural flaw poses no significant legal concern. In an online interview with the “Tagesspiegel,” Papier explained that while assuming office without taking the oath violates the constitution, it does not carry immediate legal consequences. He emphasized the difference between assuming office and taking the oath; the latter is distinct from the transfer of duties, which occurs when the Federal President makes the appointment.
Designate Carsten Linnemann for the Ministry of Health and Nina Warken for the Chancellery are scheduled to be formally named by the Federal President this Wednesday. Nevertheless, government sources indicate that the oath ceremony before the Bundestag is slated to take place after the summer break in September.
Papier maintained that a minister’s oath is not a mere matter of protocol but a fundamental legal requirement under Article 64, Paragraph 2 of the Basic Law, and must be performed upon taking office. He further clarified that an oath requires a session of the Bundestag, but added that if the oath is not taken immediately, it has no bearing on the legal validity of the minister’s official actions.
According to the former court president, performing an oath “before the Bundestag” does not necessitate the presence of all deputies or even a majority of them; it is not required to achieve a quorum. He suggested that a ceremony held before a reduced Bundestag during the holidays would suffice, just as an oath taken during the first week back after the summer recess would be adequate.
Papier concluded that the oath itself holds no “constitutive effect,” meaning it does not establish new rights and duties that did not already exist. Instead, he described it as a symbolic act carrying an integrative function for the state.
