Federal Constitutional Court
|Federal Constitutional Court|
|Country||Federal Republic of Germany|
|Composition method||Bundestag or Bundesrat appointment|
|Authorized by||Basic Law of Germany (Grundgesetz)|
|Judge term length||12 years (mandatory retirement at 68)|
|Number of positions||16, halved into two Senates|
|President of the Court|
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The Federal Constitutional Court (German: Bundesverfassungsgericht; abbreviated: BVerfG) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law (Grundgesetz) of Germany. Since its inception with the beginning of the republic, the court has been located in the city of Karlsruhe—intentionally distanced from the other federal institutions in Berlin (earlier in Bonn) and other cities.
The main task of the 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 Grundgesetz defined by the eternity clause.[note 1]
The court's practice of enormous constitutional control frequency on the one hand, and the continuity in judicial restraint and political revision on the other hand, have created a unique defender of the Grundgesetz since World War II and given it a significant role in Germany's modern democracy.
Article 20 Section 3 of the Basic Law stipulates that all three branches of the state (the legislature, executive, and judiciary) are bound directly by the constitution. 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 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: Only the Constitutional Court has the power to ban a political party in Germany. 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 third such procedure to prohibit the far-right National Democratic Party of Germany (NPD) 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. Three judges objected to continuing which was sufficient as banning a party requires a two-thirds-majority. The court did not decide on the ban itself.
Up to 2009, the Constitutional Court had struck down more than 600 laws as unconstitutional.
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 a majority. In some cases a two-thirds vote is required (§ 15 IV 1 BVerfGG). 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 chairmen 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 current president of the court is Andreas Voßkuhle.
|“||[the] court is an important institution for the protection of minority interests||”|
The Constitutional Court is able to actively administer the law and ensure 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 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 two-thirds vote.
The Bundestag has delegated this task to a special body (Richterwahlausschuss, judges election board), consisting of a small number of Bundestag members. This procedure has caused some constitutional concern and is considered to be unconstitutional by many scholars. It has, however, never been challenged in a court.
The judges are elected for a 12-year term, but they must retire upon reaching the age of 68. 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 an academic jurist at a university, as a public servant 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 Federal President in 1994, shortly before the end of his term as president of the court.
|Name||Term||Nomination by||Election by|
|Ferdinand Kirchhof (born 1950)
(Vice-President of the Court, Chairman of the First Senate)
|Wilhelm Schluckebier (born 1949)||10/2006–11/2017 (retirement)||CDU/CSU||Bundestag|
|Michael Eichberger (born 1953)||4/2006–4/2018 (12-year-term)||CDU/CSU||Bundesrat|
|Gabriele Britz (born 1968)||2/2011–2/2023 (12-year term)||SPD||Bundesrat|
|Johannes Masing (born 1959)||4/2008–4/2020 (12-year term)||SPD||Bundesrat|
|Susanne Baer (born 1964)||2/2011–2/2023 (12-year term)||Alliance '90/The Greens||Bundestag|
|Reinhard Gaier (born 1954)||11/2004–11/2016 (12-year-term)||SPD||Bundesrat|
|Andreas L. Paulus (born 1968)||03/2010–03/2022 (12-year term)||FDP||Bundestag|
|Andreas Voßkuhle (born 1963)
(President of the Court, Chairman of the Second Senate)
|5/2008–5/2020 (12-year term)||SPD||Bundesrat|
|Peter M. Huber (born 1959)||10/2010–10/2022 (12-year term)||CDU/CSU||Bundestag|
|Monika Hermanns (born 1959)||11/2010–11/2022 (12-year term)||SPD||Bundestag|
|Sibylle Kessal-Wulf (born 1958)||12/2011–12/2023 (12-year term)||CDU/CSU||Bundesrat|
|Peter Müller (born 1955)||12/2011–12/2023 (12-year term)||CDU/CSU||Bundesrat|
|Doris König (born 1957)||6/2014–6/2024 (12-year term)||SPD||Bundestag|
|Ulrich Maidowski (born 1958)||7/2014–7/2026 (12-year term)||SPD||Bundestag|
|Herbert Landau (born 1948)||10/2005–4/2016 (retirement)||CDU/CSU||Bundesrat|
Presidents of the court
Impact on European constitutional questions
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 is ultra vires because it exceeds the limits established by the German act approving the ESM, was to be examined. 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 the event, the Court decided to leave judgment to the Court of Justice of the EU (CJEU).
- Art. 79 s. III
- http://www.bundesverfassungsgericht.de/EN/Das-Gericht/Bibliothek/bibliothek_node.html Reference to The Federal Constitutional Court's Webpage saying that its establishment was in 1951
- "Art. 93" [Jurisdiction of the Federal Constitutional Court] (PDF). Basic Law for the Federal Republic of Germany. Berlin: German Bundestag. April 2010. pp. 82–83. Retrieved 19 August 2010.
- Law, David S., The Anatomy of a Conservative Court in Texas Law Review lxxxvii: 1545–93
- Government and Politics of West Germany, p. 165
- Kesselman et al. (2009), ch. 4 p. 69
- "Germany's Constitutional Court: Judgment days", The Economist, Karlsruhe, 26 May 2009, archived from the original on 2012-03-16
- europarl.europa.eu: "The German Constitutional Court's ruling on the ECB's bond-buying decision" 10 Feb 2014
- Allen, Christopher S. (10 February 2009). "Chapter 4: Germany". In Kesselman, Mark; Krieger, Joel; Joseph, William A. Introduction to Comparative Politics. Wadsworth. ISBN 0-495-79741-3.
- Law, David S. (2009). "The Anatomy of a Conservative Court: Judicial Review in Japan". Texas Law Review. 87: 1545–1593. SSRN 1406169.
- "Judgment Days: Germany's Constitutional Court". The Economist. 28 March 2009.
- Lenaerts, Koen; Gutman, Kathleen. "'Federal Common Law' in the European Union: A Comparative Perspective from the United States.". The American Journal of Comparative Law. 54: 1–121. JSTOR 20454486.
- Pruezel-Thomas. "The abortion issue and the federal constitutional court". German Politics. 2:3.
- Johnson. "The federal constitutional court: Facing up to the strains of law and politics in the new Germany". German Politics. 3:3.
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