Federal Constitutional Court of Germany

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The Bundesverfassungsgericht

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The Federal Constitutional Court (in German: Bundesverfassungsgericht, BVerfG) is a special court established by the German constitution, the Grundgesetz (Basic Law). From its inception, the Court has been located in the city of Karlsruhe, intentionally dislocated from the other federal institutions (earlier in Bonn, now in Berlin).

The sole task of the court is judicial review. It may therefore declare public acts unconstitutional and thus render them ineffective. As such, it is somewhat similar to the Supreme Court of the United States. However, it differs from it and other supreme courts in that it is not part of the regular judicial system, but more a unique judicial branch.

Most importantly, it does not serve as a regular court of appeals from lower courts or the Federal Supreme Court (BGH) as a sort of “superappellate court” on any violation of federal laws. Its jurisdiction is focused on constitutional issues, the integrity of the Grundgesetz and the immediate compliance of any governmental institution in any detail (article 1 subsection 3 of the Grundgesetz). Even constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz (due to its Article 79 (3), the so called 'eternity clause').

The court’s practice of enormous constitutional control frequency on the one hand, and the continuity in judicial self-restraint and political revision on the other hand, created a unique defender of the Grundgesetz since World War II and assigned a remarkably outstanding role in a modern democracy.

Procedures

Article 20 subsection 3 of the Grundgesetz stipulates that all the three branches of the state –legislative, executive and judicial– are bound directly by the constitution. As a result, the court can abolish acts of all three branches as unconstitutional — either for formal violations, e.g. exceeding powers or violating procedures, or for material conflicts, e.g. because the civil rights prescribed in the Grundgesetz were not respected. Due to the principle of subsidiarity, no case may be brought before it until judicial review through another court branch has been completed.

Decisions of the court on material conflicts are put into force through a federal law by the Federal Constitutional Court Act (BVerfGG).

The Constitutional Court has several strictly defined procedures in which cases may be brought before it:

With a Constitutional Complaint (Verfassungsbeschwerde), any person may file a complaint alleging that his or her constitutional rights were violated. Although only a small fraction of these are actually successful (ranging around 2.5 % since 1951), several of these resulted in major legislation overturns, especially in the field of taxation. The large majority of the court's procedures fall in this category, with 135,968 such Complaints filed from 1957 to 2002.

Several political institutions, including the governments of the Bundesländer, may bring a law passed by the federal legislation before the court if they consider it unconstitutional (procedure of Abstract Regulation Control). The most well-known examples of these procedures included legislation legalizing abortion, which -- in highly debated rulings -- were declared unconstitutional twice by the Constitutional Court.

In addition, any regular court which has doubts about whether a law in question for a certain case is in conformance with the constitution may suspend that case and bring this law before the Federal Constitutional Court (procedure of Single Regulation Control).

Federal institutions, including members of the Bundestag, may bring internal disputes over competences and procedures before the court (Federal Dispute).

The Bundesländer may bring disputes over competences and procedures between them and federal institutions before the court (State-Federal Dispute).

Committee on parliament investigation, including single members of the Bundestag, or the federal government may bring internal disputes over competences and procedures in case of committee’s investigation before the court (Investigation Committee Control).

Violations of election laws may be brought before the court by political institution or any involved voter (Federal Election Scrutiny).

Impeachment cases against the President or a judge, member of one of the Federal Supreme Courts, brought by the Bundestag, the Bundesrat or the federal government, based on violation of constitutional or federal law (Impeachment Procedure).

Finally, only the Constitutional Court has the power to prohibit a political party in Germany. This has only happened twice in the 1950s: the Sozialistische Reichspartei (SRP), an outright neo-nazi party, was banned in 1952, the Communist Party of Germany (KPD) was banned in 1956. A third such procedure to prohibit the extremist right-wing National Democratic Party (NPD) spectacularly failed in 2003 after the court discovered that many of the party officials were in fact controlled by the German secret services that had injected its agents for the sake of surveillance.

Organization

The Court consists of two Senates, each of which has eight members, headed by a senate’s chairman. The members of each Senate are allocated to three Chambers for hearings in Constitutional Complaint and Single Regulation Control cases. Each Chamber consists of three judges, so each Senate chairman is at the same time a member of two Chambers.

Decisions by a Senate require an absolute majority of 5 votes (in some cases a 2/3 majority is required, i.e. 6 out of 8 votes), decisions by a Chamber need to be unanimous. A Chamber is not authorized to overrule a standing precendent of the Senate to which it belongs; such issues need to be submitted to the Senate as a whole. Similarly, a Senate may not overrule a standing precedent of the other Senate, such issues will be submitted to a plenary meeting of all 16 judges (the "Plenum").

Unlike all other German courts, the court often publishes the vote count on its decisions (though only the final tally, not every judge's personal vote) and even allows its members to issue a dissenting opinion. This possibility, which was only introduced in 1971, is a remarkable deviation from German judicial tradition.

One of the two Senate Chairmen is also the President of the Court, the other one is the Vice-President. The presidency alternates between the two Senates, i.e. the successor of a President is always chosen from the other Senate. The current president of the Court is Hans-Jürgen Papier.

Election of judges

The Court's judges are elected by the Bundestag and the Bundesrat. According to the Basic Law, each of these bodies selects four members of each Senate, while the authority to select the Court's President alternates between them. The selection of a judge requires a 2/3 majority.

As a matter of fact, the Bundestag has delegated this task to a special body ("Richterwahlausschuss"), consisting of a small number of Bundestag members. This procedure has caused some constitutional concern and is considered to be unconstitutional by many scholars. However, it has never been challenged in a court. Since the only court that could hold this procedure unconstitutional is the Constitutional Court itself, this question will probably never be settled.

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