GER
 
GERMANY
Federal Constitutional Court
 
I.   Introduction
1. Date and context of establishment
The Federal Constitutional Court (Bundesverfassungsgericht) is the first body of its kind in German constitutional history. It was established in 1951 as a reaction to the erosion of the Constitution during the totalitarian rule of National Socialism, which showed the need for a special body to protect human rights, democracy, the rule of law and the federal structure as laid down in the Constitution.
2. Position in the hierarchy of courts
The Court has the power to reverse, upon constitutional complaint, any decision of any other German court which is held to violate fundamental rights. It is, however, not an instance of revision above the normal stages of appeal. It will interfere with the application of ordinary law by the regular courts only in cases of failure to comply with the rules and principles of the Constitution.
II.   Basic texts
   -   Basic Law (Grundgesetz GG) of 1949, most recently amended in 2017.
   -   Act on the Federal Constitutional Court (Gesetz über das Bundesverfassungsgericht BVerfGG; hereinafter, the "Act") of 1951,          most recently amended in 2017.
   -   Rules of Procedure of the Federal Constitutional Court (Geschäftsordnung des Bundesverfassungsgerichts GOBVerfG;             hereinafter, the "Rules of Procedure") of 1986, most recently amended in 2014.
III.   Composition, procedure and organisation
1. Composition
The Federal Constitutional Court is composed of 16 Justices (§ 2.1 and § 2.2 of the Act).

One half of the Court's members are elected by the Bundestag (Federal Parliament), the other half by the Bundesrat (the second legislative chamber), which is composed of representatives of the federal states (first sentence of § 5.1 of the Act). In both chambers, a two-thirds majority is required for election; the President and the Vice-President of the Court are elected alternately by the Bundestag and the Bundesrat (first sentence of § 9.1 of the Act). Following their election, all Justices are appointed by the Federal President (§ 10 of the Act).

The term of office for a Justice is 12 years, but does not extend beyond the age of retirement, which is 68 years (§ 4.1 and § 4.2 of the Act). Justices cannot be re-elected (§ 4.2 of the Act).

In order to qualify for appointment as Justice to the Federal Constitutional Court, candidates must be forty years of age and qualified to hold judicial office under the German Judiciary Act (§ 3.1 and § 3.2 of the Act). Except for three Justices of each Panel who must have served at one of the supreme federal courts (§ 2.3 of the Act), the Justices of the Court may come from different professions. During tenure, the office of a Justice of the Federal Constitutional Court is incompatible with any other professional occupation other than that of professor of law at a German higher education institution (§ 3.3 and § 3.4 of the Act).

Justices do not enjoy immunity. A justice is discharged from office on his or her request (§ 12 of the Act). With the authorisation of the Court, a Justice can be retired in case of permanent incapacity to fulfil his or her duties (§ 105 of the Act), or removed from office if convicted of committing a dishonourable act or sentenced to more than six months' imprisonment, or in case of a breach of duties so grave that remaining in office is intolerable (§ 105 of the Act).

The Federal Constitutional Court is divided into two Panels (Senate), each composed of eight Justices (§ 2.1 and § 2.2 of the Act). The Court's President presides over one Panel while the Court's Vice-President presides over the other (§ 15.1 of the Act). The Panels work independently of each other, yet both speak for the Court. Their respective competences (cf. § 14 of the Act) as well as the Reporting Justice for a given case (§ 15a.2 of the Act) are predetermined partly by law, partly by a schedule for the allocation of jurisdiction adopted by plenary decision. A plenary decision on a pending case is rare; it is only rendered if one Panel intends to deviate from the ratio decidendi of a decision of the other Panel (§ 16.1 of the Act). The Justices are also sitting in minor adjudicating bodies, the so-called Chambers (Kammern), consisting of three Justices each (§ 15a of the Act), with three chambers for each Panel.
2. Procedure
The Federal Constitutional Court is a permanent court. In general, each Panel meets twice a month for two or three days in order to deliberate on the judgments or, less frequently, hold oral hearings. Most other decisions are made by the Chambers by circulating drafts. Most cases are decided based on written procedures. Oral hearings before the Panel are rare, lasting one or two days; they are sometimes mandated by law, but discretionary in constitutional complaint proceedings. The decisions of a Panel are usually passed by an absolute majority. The President's or Vice-President's vote does not carry greater weight than that of any other Justice. If the Panel is divided four to four, the applicant will not be granted the relief sought (§ 15.4 of the Act). If a Justice disagrees with the majority, he or she may write a separate opinion (§ 30.2 of the Act).

Most cases (approx. 99%) are decided by the Chambers, to implement constitutional standards that have already been clarified by a Panel, in individual constitutional complaint proceedings (Verfassungsbeschwerden) and in proceedings for the specific judicial review of statutes (konkrete Normenkontrollverfahren). Chamber decisions can only be adopted unanimously (§ 93d.3 of the Act), which is why there may be an intense exchange of memoranda or ad hoc meetings. If there is no consensus, only a Panel decision can break the impasse. Chambers may refuse to admit a constitutional complaint for decision if it has no fundamental constitutional significance or if a decision is not necessary to protect fundamental rights (§§ 93a and 93b of the Act). A Chamber may grant the relief sought by such complaint if certain requirements are met.

Most of the Court´s work is based on circulating a draft opinion on a given case with a draft judgment, and the full case file with all relevant material, including scholarly work and comparative law. This is prepared by the Reporting Justice, and to a large degree by the judicial clerks. It relies heavily on what the parties submitted. In all types of proceedings, applications must be submitted in writing, state reasons and list the necessary evidence (§ 23.1 of the Act). At this stage, the parties must not be represented by a lawyer or a professor of law at a German higher education institution (§ 22.1 of the Act), although they may apply for financial assistance to pay for lawyers' fees (based on the fundamental right of equal access to justice for the poor, applicable before the Federal Constitutional Court as well); if an oral hearing takes place, the complainant must be represented before the Court by a lawyer.

There are time limits for applications: An individual constitutional complaint must be lodged within one month after the challenged decision or act of a public authority or a court has been served (§ 93.1 of the Act). If the complaint is directed against a law, the time limit is one year (§ 93.3 of the Act). In case of a dispute between highest federal organs or between the Federation and the Laender (federal states), a party has to initiate proceedings within six months (§§ 64.3, 69 of the Act). Pursuant to the first sentence of § 22.1 of the Act, the parties may be represented at any stage of the proceedings by a lawyer or a professor of law at a German higher education institution. In oral hearings before the Federal Constitutional Court, they must be represented in this manner.

The proceedings are free of charge (§ 34.1 of the Act). Only in case of an abuse of constitutional jurisdiction may a party or its lawyer be charged with a fee of up to EUR 2,600.00 (§ 34.2 of the Act).

Constitutional complaints which are clearly inadmissible, or clearly do not have sufficient prospects of success, are registered in the Court's General Register (§ 63 of the Rules of Procedure). Only if a complainant, after having been informed about the legal situation by the Court, insists on a judicial decision, is the constitutional complaint transferred to the register of proceedings (§ 63.2 of the Rules of Procedure) and thus enters into the admission procedure.
3. Organisation
The Federal Constitutional Court is a constitutional organ and therefore not subject to supervision by any ministry. The budget of the Federal Constitutional Court is part of the federal budget adopted by Parliament.

The President represents the Court and heads its administration. Fundamental organisational decisions are taken by the Plenary (all 16 Justices sitting together), which also decides on the preliminary estimates of the budget (§1.2 and § 1.3 Rules of Procedure). In practice, the President entrusts the Director of the Federal Constitutional Court (Direktor beim Bundesverfassungsgericht) with most of the administrative tasks (§§ 14, 15 Rules of Procedure).

In addition to the Justices, the Federal Constitutional Court has a staff of almost 250. Each Justice works with four research assistants, as judicial clerks, of his or her own choice. The majority of these judicial clerks are judges or public prosecutors from the civil, criminal, administrative, social, financial, or labour courts, and are usually seconded to the Court by the federal state which employs them for about three years. Other judicial clerks come from universities, or from federal or state administrative positions.
IV.   Jurisdiction
The competences of the Federal Constitutional Court are determined by the Basic Law and by legislation. The Court may not act of its own motion, but only in response to an application.

The most important competences of the Federal Constitutional Court are:

1. Constitutional complaint (Article 93.1 no. 4a of the Basic Law, §§ 13 no. 8a, 90 et seq. of the Act)

This is by far the most common type of proceedings. Any person may lodge a constitutional complaint if the person believes that his or her fundamental rights have been directly violated by an act of public authority, such as a decision of a court, legislation, or a measure of an administrative authority.

A constitutional complaint requires admission for decision. The Court has to admit the constitutional complaint for decision if it is of fundamental constitutional significance or if it is necessary to accept the case in order to enforce the complainant's rights, e.g. in cases where the complainant would otherwise suffer severe harm (§ 93a.2 of the Act). A constitutional complaint may only be lodged after all legal remedies before other courts have been exhausted (§ 90.2 of the Act).

2. Proceedings on the constitutionality of laws

Only the Federal Constitutional Court may declare a law incompatible with the Basic Law. If a court considers a law to be unconstitutional and therefore wishes not to apply it in a specific case, it must submit it to the Federal Constitutional Court (specific judicial review of statutes - konkrete Normenkontrolle, Article 100.1 of the Basic Law, §§ 13 no. 11, 80 et seq. of the Act). Additionally, the Federal Government, a Land government or one fourth of the members of the Bundestag may initiate abstract judicial review proceedings (abstract judicial review of statutes - abstrakte Normenkontrolle, Article 93.1 no. 2 of the Basic Law, §§ 13 no. 6, 76 et seq. of the Act).

3. Constitutional disputes

The jurisdiction of the Federal Constitutional Court may also be invoked if differences of opinion arise between constitutional organs (disputes between constitutional organs - Organstreit proceedings) or between the Federation and the Laender (disputes between the Federation and the Laender) regarding their respective constitutional rights and duties. In Organstreit proceedings, the matters at issue may concern questions of the law governing political parties, elections, or Parliament. Disputes between the Federation and the Laender frequently have to do with questions of the distribution of powers in the Federation.

Additionally, the Court is competent, inter alia, for proceedings concerning the scrutiny of elections (Article 41.2 of the Basic Law, §§ 13 no. 3, 48 of the Act) or the prohibition of political parties (Article 21. 2 of the Basic Law, §§ 13 no. 2, 43 et seq. of the Act), as well as for constitutional complaints that are lodged by municipalities (Article 93.1 no. 4b of the Basic Law, §§ 13 no. 8a, 91 of the Act).
V.   Nature and effects of decisions
The decisions of the Federal Constitutional Court are final and cannot be appealed. However, some cases are brought before international courts, namely the European Court of Human Rights in Strasbourg. Decisions rendered by the Court based on an oral hearing are issued as judgments; decisions handed down without an oral hearing are issued as orders (§ 25.2 of the Act).

The decisions of the Federal Constitutional Court are binding upon federal and Land (federal state) constitutional organs as well as on all courts and other public authorities (§ 31.1 of the Act). Decisions concerning the compatibility or incompatibility of law with the Constitution have the force of law (§31.2 of the Act).

In proceedings involving the review of statutes, including constitutional complaint proceedings, the Federal Constitutional Court may void laws or regulations (§ 78 of the Act). In this case, the legal provisions in question immediately cease to operate. More often, the Court chooses to declare legal provisions to be incompatible with the Constitution (but not void). In this case, and unless the Court sets a time limit, the legal provision in question remains in force until its legislative abrogation, for which the Constitutional Court may also set a time limit.

If a legal provision is voided or declared incompatible with the Constitution, non-appealable administrative acts or court decisions issued on the basis of this legal provision remain in force. Only the act which was the subject of the proceedings before the Constitutional Court is directly voided as a consequence of the nullity of the legislative act upon which it was based. For all final criminal convictions based on a legal provision which has been voided or declared incompatible with the Basic Law, proceedings may be re-opened to challenge the conviction in accordance with the provisions of the Code of Criminal Procedure (§ 79 of the Act).

In constitutional complaint proceedings that challenge a court decision, the Federal Constitutional Court may reverse the decision and remand the case (§ 95.2 of the Act). As a general rule, the Federal Constitutional Court does not replace the regular court's prior ruling with its own.

If a decision in principal proceedings cannot be made in good time, the Federal Constitutional Court may, on application or of its own motion, issue a temporary injunction where this is urgently necessary to avert severe disadvantage, to prevent imminent violence, or for any other important reason (§ 32 of the Act).

All Panel decisions are published in the official digest Entscheidungen des Bundesverfassungsgerichts (abbreviated BVerfGE). The Court also publishes press releases of the Panel decisions and of the most important Chamber decisions.

All press releases and important decisions rendered since 1998 are available on the Federal Constitutional Court's website <www.bundesverfassungsgericht.de>, as are statistics on the proceedings before the Court. Many decisions are also published in law reviews and entered into the legal database JURIS.

Selected decisions and press releases in English are available via the English version of the Federal Constitutional Court's website and published in the series Decisions of the Bundesverfassungsgericht vol. 1-5, each with a thematic focus.