## Facts

- The city-states of Hamburg and Bremen enacted statutes authorizing a nonbinding, state-run popular consultation (Volksbefragung) asking voters whether the federal armed forces should be equipped with atomic weapons.
- The Federal Government supported nuclear armament of the Bundeswehr and objected that defense and armament fall within exclusive federal legislative competence.
- The Federal Government filed an abstract review of norms challenging the constitutionality of the Hamburg and Bremen statutes.
- The challenged laws provided for an official, statewide voting procedure (balloting and counting) organized by Land authorities, even though the outcome would not be legally binding on federal organs.

## Issues

1. Whether abstract review of norms includes review of a Land statute’s formal constitutionality, including legislative competence.
2. Whether a state-organized Volksbefragung is merely opinion research or an exercise of state authority through official state will-formation.
3. Whether Länder may create official popular consultations on matters assigned to the Federation’s exclusive competence, particularly defense and armament.

## Decision

- The court held that abstract norm review covers both substantive and formal constitutional questions, including competence disputes.
- The court characterized the Volksbefragung as official participation by the electorate in state will-formation and therefore an exercise of state authority, even if the result is nonbinding.
- Because defense and armament are within the Federation’s exclusive competence, the Länder lacked authority to organize an official popular consultation on that subject.
- The Hamburg and Bremen Volksbefragung statutes were declared unconstitutional and void.

## Legal Principles

- Abstract norm control may adjudicate whether a legislature had constitutional competence to enact a statute, not only whether the statute’s content violates constitutional norms.
- A formally nonbinding procedure can still constitute an exercise of state power when it is organized and performed in an official, organs-like manner.
- Constitutional protection for free formation of public opinion does not authorize the state to transform public discourse into an official, state-run vote absent a constitutional basis.
- Länder may not institute official referenda or consultations whose direct object is a matter of exclusive federal legislative competence, because doing so alters constitutionally defined allocations of authority.

## Conclusion

The court invalidated Hamburg’s and Bremen’s atomic-weapons consultation laws, holding that an official popular vote is an exercise of state authority requiring constitutional competence, and that Länder cannot organize such state-run consultations on federal defense and armament matters reserved exclusively to the Federation.


Volksbefragung Atombewaffnung (Atomic Weapons Referenda Case I), 8 BVerfGE 104 (BVerfG 1958)