## Facts

- In 2001, the Bundestag approved the deployment of German armed forces to Afghanistan as part of the International Security Assistance Force (ISAF), which operated on the basis of a United Nations Security Council mandate.
- In 2003, NATO assumed command of ISAF.
- In early 2007, the Federal Government sought Bundestag approval to continue German participation in ISAF and to add aerial reconnaissance and surveillance capabilities.
- The plan included deploying Tornado RECCE aircraft (and related personnel) to conduct reconnaissance flights in support of ISAF.
- The Bundestag approved the mandate; the Tornado reconnaissance flights began in 2007 as part of the NATO-led ISAF operation.
- The parliamentary group PDS/Die Linke (Die Linke) initiated Organstreit proceedings against the Federal Government (and, in the proceeding, also involved the Bundestag), alleging that NATO’s leadership of ISAF and Germany’s participation in Afghanistan went beyond what the Bundestag had authorized when it consented to the NATO Treaty.
- Die Linke argued that ISAF in Afghanistan was effectively a military operation outside the Euro-Atlantic region and that NATO’s role amounted to a change in the NATO Treaty’s meaning that would require a new parliamentary treaty-consent act under Article 59(2) of the Basic Law.

## Issues

1. Did NATO’s post-ratification practice—particularly leading ISAF in Afghanistan—amount to a change of the NATO Treaty that required renewed parliamentary consent under Article 59(2) of the Basic Law?
2. Did German participation in NATO-led ISAF in Afghanistan, including Tornado reconnaissance flights, exceed what is constitutionally permitted for Germany’s participation in a system of collective security and exceed what the Bundestag had consented to through the NATO Treaty approval act?
3. Did the Federal Government’s conduct in supporting and participating in the NATO-led ISAF mission violate the Bundestag’s rights (and the applicant parliamentary group’s status rights) in matters of treaty commitment and external military deployments?

## Decision

- The Federal Constitutional Court dismissed the application as unfounded.
- The Court held that NATO’s leadership of ISAF and the challenged deployment did not constitute a treaty change triggering a new treaty-consent law under Article 59(2).
- The Court found that the NATO-led, UN-mandated ISAF operation in Afghanistan (including Tornado reconnaissance support) remained within the framework of the existing NATO Treaty as previously approved by the Bundestag.
- The Court found no violation of Bundestag rights connected to treaty consent or to parliamentary participation in decisions on external deployments, given the Bundestag’s mandate approval for the mission.

## Legal Principles

- Parliamentary consent to a treaty under Article 59(2) can authorize participation in an international security framework that may develop through later practice without requiring a new consent act, so long as the treaty’s core character remains recognizable.
- Renewed treaty-consent legislation is required only where later practice results in a material change in treaty obligations or meaning that goes beyond what the Bundestag approved; expansion of operational activity alone does not suffice.
- NATO may conduct operations aimed at maintaining or restoring international peace and security—especially when linked to UN mandates—without ceasing to be a defensive alliance in constitutional terms.
- Parliamentary participation rights are not violated where the Bundestag retains decision-making power through deployment mandates and the government does not bind Germany to qualitatively new treaty commitments outside parliamentary control.

## Conclusion

In Tornado Case, the Federal Constitutional Court upheld Germany’s participation in NATO-led ISAF in Afghanistan, including Tornado reconnaissance flights, rejecting the claim that NATO’s Afghanistan mission had changed the NATO Treaty in a way that required a new parliamentary treaty-consent act and finding no infringement of Bundestag-related rights given the mission’s UN basis and Bundestag authorization.


Tornado Case, 117 BVerfGE 359 (2007)