Federal Constitutional Court

The Federal Constitutional Court (german: link=no, Bundesverfassungsgericht ; abbreviated: ) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law () of Germany. Since its inception with the beginning of the post-World War II republic, the court has been located in the city of Karlsruhe, which is also the seat of the Federal Court of Justice.

The main task of the Federal Constitutional Court is judicial review, and it may declare legislation unconstitutional, thus rendering them ineffective. In this respect, it is similar to other supreme courts with judicial review powers, yet the court possesses a number of additional powers and is regarded as among the most interventionist and powerful national courts in the world. Unlike other supreme courts, the constitutional court is not an integral stage of the judicial or appeals process (aside from cases concerning constitutional or public international law), and does not serve as a regular appellate court from lower courts or the Federal Supreme Courts on any violation of federal laws.

The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institutions with the constitution. 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 defined by the eternity clause.Art. 79 s. III

Scope

The Basic Law of the Federal Republic of Germany stipulates that all three branches of the state (the legislature, executive, and judiciary) are bound directly by the constitution in Article 20, Section 3 of the document. As a result, the court can rule acts of any branches unconstitutional, whether as formal violations ( exceeding powers or violating procedures) or as material conflicts (when the civil rights prescribed in the ''Grundgesetz'' are not respected).

The powers of the Federal Constitutional Court are defined in article 93 of the ''Grundgesetz''.
This constitutional norm is set out in a federal law, the Federal Constitutional Court Act (BVerfGG), which also defines how decisions of the court on material conflicts are put into force. The Constitutional Court has therefore several strictly defined procedures in which cases may be brought before it:
* Constitutional complaint: By means of the ''Verfassungsbeschwerde'' (constitutional complaint) any person may allege that his or her constitutional rights have been violated. Although only a small fraction of these are actually successful (ranging around 2.5% since 1951), several have resulted in major legislation being invalidated, especially in the field of taxation. The large majority of the court's procedures fall into this category; 135,968 such complaints were filed from 1957 to 2002.
* Abstract regulation control: Several political institutions, including the governments of the '' Bundesländer'' (states), may bring a federal law before the court if they consider it unconstitutional. A well-known example of this procedure was the 1975 abortion decision, which invalidated legislation intended to decriminalise abortion.
* Specific regulation control: Any regular court which is convinced, that a law in question for a certain case is not in conformance with the constitution must suspend that case and bring this law before the Federal Constitutional Court.
* Federal dispute: Federal institutions, including members of the Bundestag, may bring internal disputes over competences and procedures before the court.
* State–federal dispute: The ''Länder'' may bring disputes over competences and procedures between the states and federal institutions before the court.
* Investigation committee control
* Federal election scrutiny: Violations of election laws may be brought before the court by a political institution or any involved voter.
* Impeachment procedure: Impeachment proceedings may be brought against the Federal President, a judge, or a member of one of the Federal Supreme Courts, by the Bundestag, the Bundesrat or the federal government, based on violation of constitutional or federal law.
* Prohibition of a political party: Article 21 of the Basic Law gives the Constitutional Court the power to ban political parties that either threaten the existence of Germany or "seek to undermine or abolish the free democratic basic order". This has happened just twice, both times in the 1950s: the Socialist Reich Party (SRP), a neo-Nazi group, was banned in 1952, and the Communist Party of Germany (KPD) was banned in 1956. A 2003 attempt to ban another neo-Nazi party, the National Democratic Party of Germany (NPD), failed when it was revealed that a significant proportion of its leadership were informants for the Federal Office for the Protection of the Constitution.

Up to 2009, the Constitutional Court had struck down more than 600 laws as unconstitutional.Law, David S., ''The Anatomy of a Conservative Court'' in Texas Law Review lxxxvii: 1545–93

Organization

The court consists of two senates, each of which has eight members, headed by a senate chairperson. 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 chair is at the same time a member of two chambers. The court publishes selected decisions on its website and since 1996 a public relations department promotes selected decisions with press releases.

Decisions by a senate require a majority. In some cases a two-thirds vote is required. Decisions by a chamber need to be unanimous. A chamber is not authorized to overrule a standing precedent 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, and 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, introduced only in 1971, is a remarkable deviation from German judicial tradition.

One of the two senate chairs is also the president of the court, the other one being 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 10th and current president of the court is Stephan Harbarth.

Democratic function

The Constitutional Court actively administers the law and ensures that political and bureaucratic decisions comply with the rights of the individual enshrined in the Basic Law. Specifically, it can vet the democratic and constitutional legitimacy of bills proposed by federal or state government, scrutinise decisions (such as those relating to taxation) by the administration, arbitrate disputes over the implementation of law between states and the federal government and (most controversially) ban non-democratic political parties. The Constitutional Court enjoys more public trust than the federal or state parliaments, which some say derives from the German enthusiasm for the rule of law.

Appointment of judges

The court's judges are elected by the Bundestag (the German parliament) and the Bundesrat (a legislative body that represents the sixteen state governments on the federal level). According to the Basic Law, each of these bodies selects four members of each senate. The election of a judge requires a two-thirds vote (but this supermajority requirement is not constitutionally mandated by the Basic Law, only by normal law). The selection of the chairperson of each senate alternates between Bundestag and Bundesrat and also requires a two-thirds vote.

Until 2015 the Bundestag has delegated this task to a special committee (''Richterwahlausschuss'', judges election committee), consisting of a small number of Bundestag members. This procedure has caused some constitutional concern and was considered to be unconstitutional by many scholars. In 2015 the ''Bundesverfassungsgerichtsgesetz'' (law code of the Federal Constitutional Court) was changed in this aspect, ruling that the Bundestag elects judges to the court by secret ballot in the plenum, requiring a candidate to get a two-thirds majority, that has to equal at least an absolute majority of members of the Bundestag. The ''Richterwahlausschuss'' now only has to nominate a candidate. This new procedure was applied for the first time in September 2017, when Josef Christ was elected to the first senate as the successor of Wilhelm Schluckebier.
In the Bundesrat, a chamber in which the governments of the sixteen German states are represented (each state has 3 to 6 votes depending on its population, which it has to cast ''en bloc''), a candidate currently needs at least 46 of 69 possible votes.

The judges are elected for a 12-year term, but they must retire upon reaching the age of 68. Re-election is not possible. A judge must be at least 40 years old and must be a well-trained jurist. Three out of eight members of each senate have served as a judge on one of the federal courts. Of the other five members of each senate, most judges previously served as academic jurists at a university, as public servants or as a lawyer. After ending their term, most judges withdraw themselves from public life. However, there are some prominent exceptions, most notably Roman Herzog, who was elected President of Germany in 1994, shortly before the end of his term as president of the court.

Current members

Presidents of the court

The court's head is the president of the Federal Constitutional Court, who chairs one of the two senates and joint sessions of the court, while the other senate is chaired by the vice president of Federal Constitutional Court. The right to elect the president and the vice president alternates between the Bundestag and the Bundesrat. If the president of the Federal Constitutional Court leaves office, i.e. when his or her term as judge at the court ends, the legislative body, whose turn it is to choose the president, has to elect one of the judges of the senate, of which the former president wasn't a member, with a two-thirds majority. If the office of the vice president falls vacant, a new vice president is elected from the senate, of which the sitting president is not a member, by the legislative body, which has not elected the former vice president. The given legislative body is free to elect the judge it prefers, but with respect to the position of president, it has been always the sitting vice president, who was elected president, since 1983.

As he or she is the highest-ranking representative of the judicial branch of government, the president of the Federal Constitutional Court ranks fifth in the German order of precedence.

Criticism

The court has been subject to criticism. One complaint is the perceived function as a replacement lawmaker (German: ''Ersatzgesetzgeber)'' because it has overturned controversial policies numerous times, such as the ''Luftsicherheitsgesetz'', the ' (rent cap) of Berlin, and parts of the Ostpolitik. This behavior has been interpreted as a hindrance to the normal functioning of the parliament.

Another criticism of the federal constitutional court issued by the former president of the Federal Intelligence Service, Dr. August Hanning, is that the court tends to overprotect people, according to him, even members of ISIS. He considers that to hinder the efficiency of German intelligence agencies in favour of protecting people in far-away countries.

Finally, numerous decisions have been criticised and sparked demonstrations.

Landmark decisions

{, class="wikitable"
! width="30" , Year
! width="110" , Case
! width="90" , Unofficial name
! width="300" , Synopsis
! width="290" , Legal principles set
! width="350" , Consequences
, -
! colspan="6" , Human dignity
, -
, 1993
, 2 BvF 2/90
, ''(None)''
, Federal lawmakers permitted abortion within twelve weeks after implantation. To be legal the expectant mother had to go to a pregnancy consultation minimum three days in advance and the abortion has to be their own decision.
,
* If a pregnancy is not the result of a criminal interaction or a threat to the mother's life or health an abortion violates the right to life of an embryo. As a result, in the last case, abortion has to be prohibited.
, Following the decision the lawmakers changed the criminal law. They prohibited abortion within twelve weeks but after using a pregnancy consultation all participants go unpunished.
, -
, 2003
, 1 BvR 426/02
, Benetton II
, The Federal Court of Justice prohibited the magazine ''Stern'' to publish a shocking advertisement of the Benetton Group. The advertisement showed a bare bottom with a stamp: "HIV-positive".
,
* Human dignity is absolute. All fundamental rights are substantiations of human dignity therefore there is no trade-off of human dignity and any fundamental right possible.
, The case was remanded to the Federal Court of Justice for a second time. After Benetton II the plaintiff abandoned the lawsuit. A final decision was unnecessary.
, -
, 2006
, 1 BvR 357/05
, Civil aviation security act decision
, Federal lawmakers permitted the military to shoot down civil aeroplanes if there is an indication that they will be used as a weapon against human lives and a shoot-down is the last resort.
,
* Human dignity is inviolable. There cannot be any trade-off of the lives of innocent people.
* The military can be used as disaster relief, but the use of military weapons violates the constitution.
* Only the federal government can order the military to provide disaster relief.
, The disputed part of the civil aviation security act was declared void. Basically, the court decided that a shoot-down could be legal if a flight vehicle is unmanned or there are only suspects on board.
, -

! colspan="6" , Protection of fundamental rights

, -
, 1957
, 1 BvR 253/56
, Elfes-Decision (Elfes-Urteil)
, Wilhelm Elfes, a left-wing member of the centre-right CDU, was accused of working against the constitution but was never convicted. Based on this indictment he was denied a passport multiple times. Elfes litigated against the decision.
,
* The right to personal liberty is to be construed in a broad way.
* Invention of "Heck's Formula" (named after the rapporteur of the case, Justice Heck). The court can only review cases if one of the following conditions applies:
**The impact of a constitutional norm was misjudged
**Application of the law was discretionary
**Judicial restraint was violated
, Elfes lost his specific case but the court cemented personal liberty in general. Justice Heck defined the limits of the court relative to the specialised court system.
, -
, 1958
, 1 BvR 400/51
, Lüth Decision ()
, The court of Hamburg prohibited Erich Lüth to call for a boycott of the film ''Immortal Beloved''. Lüth justified his action because director Veit Harlan also was responsible for the antisemitic movie ''Jud Süß'' in 1940.
,
* The Basic Law binds private law indirectly.
* The Federal Constitutional Court is not a regular appellate court on violation of federal law. The court only overviews violation of the Basic Law.
, With the Lüth Decision the court defined and restricted its own power. But on the other hand, it expanded the effective range of the Basic Law beyond the tension of government and people to the private law. The Basic Law does not bind citizens but it binds the lawmakers in creating private law and the judiciary in interpreting it.
, -
, 2021
, {{plainlist,
1 BvR 2656/18,
1 BvR 78/20,
1 BvR 96/20,
1 BvR 288/20
, ''(Klimaschutz)''
, In 2019 the German federal government implemented the Climate Protection Act, to transpose the Paris Agreement into German law. It defined CO2-reduction goals for 2030 but did not describe how to reach the 1.5°C/2°C limitation beyond that year. The German branch of Fridays for Future litigated against the law because it would put an undue burden to their freedom and the freedom of the generations to come.
,
* The Basic Law binds legislation to protect the liberty of actual people as well as the freedoms of generations to come. Legislation has to implement laws in a way that does not put an undue burden on the liberty of young people or future generations. The decision was unanimous.
, The court instructed the federal government to implement the law in a way that does not put most of the effort needed to reach the goals of the Paris Agreement to future generations. Personal liberty is not to be interpreted in a way that restricts the personal liberty of future generations inappropriately.
, -
! colspan="6" , Development of fundamental rights by the court
, -
, 1983
, {{plainlist,
*1 BvR 209/83
*1 BvR 269/83
*1 BvR 362/83
*1 BvR 420/83
*1 BvR 440/83
*1 BvR 484/83
, Census Verdict ({{lang, de, Volkszählungsurteil)
, Citizens litigated against the German census 1983
,
* Personal freedom under modern conditions depends on the right to be protected against unlimited data processing, use, collection, storage and disclosure. There is nothing like irrelevant data.
, The census was postponed to 1987 until the "census 1983 act" was changed corresponding to the verdict. The court created, by deriving from human dignity and personal liberty, a new civil right: informational self-determination. The verdict became the foundation of the modern German Data Protection Act (1990) and the EU Data Protection Directive (1998).
, -
! colspan="6" , Freedom of expression
, -
, 2000
, 1 BvR 1762/95 & 1 BvR 1787/95{{Cite web , date=12 December 2000 , title=Leitsätze zum Urteil des Ersten Senats vom 12. Dezember 2000 , trans-title=Guiding principles of the decision of the first senate, decided on December 12th, 2000 , url=https://www.bundesverfassungsgericht.de/entscheidungen/rs20001212_1bvr176295.html , access-date=1 December 2018 , website=Federal Constitutional Court – Decisions , publisher=Federal Constitutional Court , location=Karlsruhe , language=de
, Benetton I
, The Federal Court of Justice prohibited the magazine ''Stern'' to publish shocking advertisements of the Benetton Group. The advertisements showed a bird doused with oil, child labour and a bare buttock with a stamp: "HIV-positive".
,
* The publishing of an opinion of a third party that is protected by freedom of expression is protected itself.
, The case was remanded to the Federal Court of Justice whose new decision was challenged again as "Benetton II".
, -
! colspan="6" , Freedom of art
, -
, 1971
, 1 BvR 435/68{{Cite web , date=24 February 1971 , title=BVerfG, Beschluss vom 24.02.1971 – 1 BvR 435/68 , trans-title=Federal Constitutional Court, Court order, decided on February 24th, 1971 – 1 BvR 435/68 , url=https://openjur.de/u/31670.html , access-date=13 December 2018 , website=BVerfG Rechtsprechung , publisher=OpenJur e.V. , location=Hamburg , language=de
, Mephisto judgment ({{lang, de, Mephisto-Entscheidung)
, The heir of Gustaf Gründgens successfully sued the publisher of the 1936 novel ''Mephisto'' by Gründgens' former brother-in-law Klaus Mann to stop publishing the book. It was prohibited by all lower courts.
,
* Freedom of art is guaranteed by the Basic Law, but it finds its limit in human dignity and likewise in personality right. Because freedom of art is to be construed in a broad sense, weighing up has to be comprehensive and a case by case decision.
, Due to a split decision the ban of the novel was upheld. It was the first decision of the court on the interpretation of freedom of art. Apart from the concrete decision, the court made clear that freedom of art cannot be limited by general laws.

Impact on European constitutional questions

{{Update section, date=May 2021, reason=''Gauweiler'', ''Weiss'', ''PSPP'' cases

On 12 September 2012, the Court stated that the question of whether the ECB's decision to finance European constituent nations through the purchase of bonds on the secondary markets was ultra vires because it exceeded the limits established by the German act approving the ESM was to be examined.{{Cite web , title=europarl.europa.eu: "The German Constitutional Court's ruling on the ECB's bond-buying decision" 10 Feb 2014 , url=http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2014/140761/LDM_BRI%282014%29140761_REV1_EN.pdf This demonstrates how a citizen's group has the ability to affect the conduct of European institutions. On 7 February 2014, the Court made a preliminary announcement on the case, which was to be published in full on 18 March. In its ruling, the Court decided to leave judgment to the Court of Justice of the EU (CJEU).

See also

* List of justices of the Federal Constitutional Court
* Judiciary
* Rechtsstaat
* Rule according to higher law
* Rule of law
* Streitbare Demokratie
* Federal Office for the Protection of the Constitution

Notes

Further reading

* {{cite book , last=Collings , first=Justin , title=Democracy's Guardians : a History of the German Federal Constitutional Court, 1951-2001 , publication-place=New York, NY , date=2015 , isbn=978-0-19-181500-3 , oclc=920859864

References

{{Reflist

Bibliography

* {{Cite book , last=Allen , first=Christopher S. , title=Introduction to Comparative Politics , date=10 February 2009 , publisher=Wadsworth , isbn=978-0-495-79741-8 , editor-last=Kesselman , editor-first=Mark , chapter=Chapter 4: Germany , editor-last2=Krieger , editor-first2=Joel , editor-last3=Joseph , editor-first3=William A
* {{Cite journal , last=Law , first=David S. , year=2009 , title=The Anatomy of a Conservative Court: Judicial Review in Japan , journal=Texas Law Review , volume=87 , pages=1545–1593 , ssrn=1406169
* {{Cite news , date=28 March 2009 , title=Judgment Days: Germany's Constitutional Court , publisher=The Economist , url=http://www.economist.com/node/13376204
* {{Cite journal , last=Lenaerts , first=Koen , last2=Gutman , first2=Kathleen , year=2006 , title='Federal Common Law' in the European Union: A Comparative Perspective from the United States. , journal=The American Journal of Comparative Law , volume=54 , issue=1 , pages=1–121 , doi=10.1093/ajcl/54.1.1 , jstor=20454486
* {{Cite journal , last=Pruezel-Thomas , title=The abortion issue and the federal constitutional court , journal=German Politics , volume=2:3
* {{Cite journal , last=Johnson , title=The federal constitutional court: Facing up to the strains of law and politics in the new Germany , journal=German Politics , volume=3:3

Further reading

* {{Cite web , date=22 June 2022 , title=Rede: Richterwechsel am Bundesverfassungsgericht , url=https://www.bundespraesident.de/SharedDocs/Reden/DE/Frank-Walter-Steinmeier/Reden/2022/06/220603-BVerfG-Richterwechsel.html , access-date=1 December 2022 , website=Der Bundespräsident , language=de

External links

{{Commons category
* {{official website

Federal Constitutional Court Act (BVerfGG)
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{{in lang, en

Federal Constitutional Court Act (BVerfGG) – germanlawarchive
{{in lang, en

Federal Constitutional Court Act (BVerfGG) – germanlawarchive at 20180609
{{in lang, en

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