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The Federal Constitutional Court: an Introduction

Dr. Gotthard Wöhrmann

A. Constitution and Courts

I. Basic Law

II. Courts

B. Federal Constitutional Court

I. Status

II. Competences

1. Forfeiture of basic rights (Article 13 (1) of the Law on the FCC in conjunction with Article 18 of the Basic Law)
2. Prohibition of a party (Article 13 (2) of the Law on the FCC in conjunction with Article 21 (2) of the Basic Law)
3. Scrutiny of elections (Article 13 (3) of the Law on the FCC in conjunction with Article 41 (2) of the Basic Law)
4. Impeachment of the Federal President and judges (Articles 13 (4) of the Law on the FCC in conjunction with Article 61 of the Basic Law; Article 13 (9) of the Law on the FCC in conjunction with Article 98 (2) and (5) of the Basic Law)
5. Constitutional disputes between governmental organs
6. Review of law
7. Constitutional complaints (Article 13 (8 a) of the Law on the FCC in conjunction with Article 93 (1) (4 a) and (4 b) of the Basic Law)

III. Panels and their Composition

IV. Basic Procedural Principles


A. Constitution and Courts

I. Basic Law

The political and social order of the Federal Republic of Germany is founded on the constitution, known as the Basic Law of 23 May 1949(1). Article 20 (1) of the Basic Law states that the Federal Republic of Germany is a democratic and social federal state.

This means that:

1. The Federal Republic of Germany is a federal state. This state, i.e. the Federation, is made up of sixteen constituent states which are called Laender. Governmental powers are distributed between the Federation and the Laender: Each have their own sovereign rights and governmental organs. The Laender are therefore not merely administrative districts as in a unitary state; they have their own territories, constitutions and governmental powers (parliaments, governments, administrative authorities, courts). However, they are at the same time integrated into the federal state; their territory is simultaneously federal territory, and they are obliged to apply and enforce federal laws. The Basic Law defines in detail the distribution of governmental competences between the Federation and the Laender. The Laender are responsible for the exercise of governmental powers and the discharge of governmental functions in so far as these are not assigned to the Federation by the Basic Law (cf. Articles 30, 70, 83, 92 of the Basic Law).

2. The Federal Republic of Germany is a parliamentary democracy. Sovereignty of the people exists, meaning that all state authority emanates from the people (first sentence of Article 20 (2) of the Basic Law). They elect their representatives for the Federal Parliament (Bundestag) and the Land Parliaments in general, direct, free, equal, and secret elections (Articles 38 and 28 of the Basic Law).

3. The Federal Republic of Germany is a social state. All authorities are under an obligation to take measures to reconcile social differences and hence ensure a just social order.

4. The Federal Republic of Germany is a state based on the rule of law; it must ensure justice and legal security. All governmental activities are bound by law and justice (Article 20 (3) of the Basic Law). An essential element of the rule-of-law principle under the constitution is the division of powers: The state authority emanating from the people is exercised by specific legislative, executive and judicial organs (second sentence of Article 20 (2) of the Basic Law).

This division-of-powers principle implies a distinction between legislative, executive and judicial functions and their allocation to specific organs (separation of powers) as well as mutual checks and curbs of those organs (balance of powers). This principle is therefore a means of distributing and thus moderating government power so as to protect the liberty of the individual. In this context particular importance attaches to the judiciary as an independent means of control; it culminates in constitutional jurisdiction.

II. Courts

1. The Basic Law includes a special section (Article 92 et seq.) containing constitutional guarantees relating to judicial power. Pursuant to Article 92, the latter is vested in judges. They are independent and subject only to the law (Article 97). Judicial power is exercised by the Federal Constitutional Court, the federal courts provided for in the Basic Law and the courts of the Laender. The federal courts are derived from Articles 95 and 96. In particular they include the Federal Patents Court (Article 96 (1)) as well as the supreme courts of justice of the Federation: the Federal Court of Justice, the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court and the Federal Social Court.

2. In the Federal Republic of Germany the judiciary is therefore divided up into constitutional jurisdiction and five independent branches each headed by a supreme federal court of justice:

a) so-called ordinary jurisdiction, i.e. civil and penal jurisdiction involving local courts, regional courts, higher regional courts, and the Federal Court of Justice (in Karlsruhe);

b) administrative jurisdiction involving administrative courts, higher administrative courts, and the Federal Administrative Court (in Berlin)(2);

c) financial jurisdiction involving finance courts and the Federal Finance Court (in Munich);

d) labour jurisdiction involving labour courts, higher labour courts, and the Federal Labour Court (in Kassel)(3);

e) social jurisdiction involving social courts, higher social courts, and the Federal Social Court (in Kassel).

Ordinary courts are responsible for decisions in criminal matters, in disputes under civil law, especially private and commercial law, and in non-contentious litigation (matters relating to the land register, guardianship, estates, and the like).

Administrative courts decide on public-law disputes not relating to constitutional law (insofar as other courts are not responsible, as is the case with social insurance and fiscal matters). These courts afford the individual protection vis-à-vis administrative authorities.

Finance courts handle disputes on taxes and levies between citizens and authorities.

Labour courts deal with disputes between employers and employees regarding terms of employment, with disputes between the parties to collective wage agreements, and with questions concerning labour management legislation, such as worker co-determination in the running of companies.

Social courts decide on disputes in the field of social insurance, war victims´ pensions, and medical services under the social health insurance scheme.

The courts of the five branches are bound by the entire legal order, i.e. the constitutions of the Federation and the Laender, as well as subordinate legal provisions (statutes and ordinances). In everyday practice they apply primarily the respective statutory and ordinance law, i.e. civil, penal administrative, fiscal/revenue, labour and social law.

In contrast the purpose of constitutional jurisdiction is to monitor that all governmental organs observe the constitution, i.e. the Basic Law and the respective Land constitution. The constitution is therefore the direct and exclusive criterion for the decisions of constitutional courts.

B. Federal Constitutional Court

I. Status

1. The Federal Constitutional Court is called upon to prevent the state from violating the federal constitution, the Basic Law. It is not a court of appeal which decides on questions of constitutional law arising in the course of civil or penal proceedings, for example. Its exclusive responsibility is to decide on questions of constitutional law; its task is to interpret the Basic Law with final binding force. The Federal Constitutional Court is the “supreme guardian of the constitution”. To perform this function it is therefore vested with far-reaching competences and is thus unique in German constitutional history.

2. In keeping with its function as the supreme guardian of the constitution, the Federal Constitutional Court has a prominent position in the structure of the state: it is at the same time a court and the supreme constitutional organ, and is independent of all other constitutional organs (cf. Article 1 of the Law on the FCC).

Constitutional organs are supreme bodies directly established under the Basic Law performing essential functions: the legislative bodies (the lower and upper chambers of parliament known as the Bundestag and the Bundesrat), the Federal President, the Federal Government and the Federal Constitutional Court.

The court´s status as a constitutional organ is manifest in its power to keep a check on other constitutional organs, define more closely their rights and powers, and nullify with general binding effect laws passed by the legislative bodies.

The Federal Constitutional Court is not attached to a particular ministry (for example, the Federal Ministry of Justice). It has its own administration and budget. Its officers are appointed, dismissed and retired by the President of the court. They are under his authority. The court draws up its own budget which appears as a separate item in the Federal Budget. The court manages its funds itself (DM 24.8 million in 1995).

However, despite this special status, the Federal Constitutional Court is not a political organ, but a true court: It does not act ex officio but only when called upon by an authorized party; it decides upon questions of law in an independent capacity. However, by their very nature questions of constitutional law often have a political dimension. The court´s decisions, therefore, have a substantial political impact.

The Federal Constitutional Court is detached from the remaining court structure. It is not the last stage of appeal in a sequence of courts. It is rather a court of first and final instance. By virtue of the substance and impact of its decisions it is the head of the federal judiciary. Its powers range from repealing decisions made by authorities or courts in contravention of the Basic Law and nullifying unconstitutional legislation to passing non-appealable decisions on disputes between the highest governmental organs of the Federation and the Laender. The emphasis of its work, even when deciding on violated right or alleged obligations, lies less on prosecution in individual disputes than on upholding constitutional law.

3. The Federal Constitutional Court, whose seat is in Karlsruhe, consists of two panels, and it commenced its work in September 1951. The legal basis is provided by Articles 92-94, 99, 100 and Article 115 (g) and (h) of the Basic Law, as well as the Law on the Federal Constitutional Court of 12 March 1951, as published on 11 August 1993 (Federal Law Gazette I p. 1473). The court´s internal affairs are governed by the Rules of Procedure of the Federal Constitutional Court (GoBVerfG) of 15 December 1986 (Federal Law Gazette I p. 2529), as amended most recently by the decision of 18 December 1995 (Federal Law Gazette 1996 I p. 474), which supplement the aforementioned law. Panel decisions are published in the collection entitled “Entscheidungen des Bundesverfassungsgerichts” (BVerfGE).

II. Competences

The function of the Federal Constitutional Court as supreme guardian of the constitution is manifest in its competences. It must be borne in mind, however, that there is not an overall clause which would authorize the court universally to pass decisions in disputes regarding constitutional law. Rather, its competences are enumerated in the Basic Law and in the Law on the Federal Constitutional Court which enlarges on the relevant provisions of the Basic Law (so-called enumeration principle). These competences include: control over legislative bodies to determine whether legislation has been enacted in conformity with the Basic Law; monitoring of authorities and courts to determine whether their measures and decisions are compatible with the Basic Law; decisions on disputes between individual governmental organs vested with rights and obligations of their own by the Basic Law; decisions on the validity of Bundestag elections, on the prohibition of unconstitutional political parties, on the forfeiture of basic rights, and on the impeachment of the Federal President and judges in cases of violation of the constitution.

In all of these instances the Federal Constitutional Court may not – as already mentioned – act on its own initiative but only in pursuance of external applications. The eligibility to make such applications varies depending on the type of proceedings involved.

The following survey of the competences of the Federal Constitutional Court corresponds largely to the list contained in Article 13 of the Law on the FCC. First of all there are four types of proceedings which have had little practical significance so far:

1. Forfeiture of basic rights (Article 13 (1) of the Law on the FCC in conjunction with Article 18 of the Basic Law)

The guaranteed basic rights of the individual are given a prominent position in the Basic Law (Articles 1-19). They bind the legislature, the executive and the judiciary as directly enforceable law (Article 1 (3) of the Basic Law). However, their protection is guaranteed only as long as they are not abused to eliminate the free democratic basic order which has made them possible in the first place. In the Basic Law a “contentious democracy” was opted for. This is reflected in Article 18: whoever abuses certain basic rights, namely freedom of expression of opinion, in particular freedom of the press (Article 5 (1)), freedom of teaching (Article 5 (3)), freedom of assembly (Article 8), freedom of association (Article 9), privacy of posts and telecommunications (Article 10), property (Article 14), or the right of asylum (Article 16 a) in order to combat the free democratic basic order forfeits those basic rights.

The application for a decision on the forfeiture of basic rights may be made only by the Bundestag, the Federal Government or a Land government. If the application proves to be founded, the Federal Constitutional Court decides which basic rights the person concerned has forfeited and for what length of time. The court may also, for the duration of the forfeiture, deny the person concerned the right to vote and to be elected as well as the capacity to hold public office (for details see Articles 36-41 of the Law on the FCC).

Until now, although the Court has heard four cases under Article 18 of the Basic Law up to the end of 1995, there have not been any decisions on the forfeiture of basic rights.

2. Prohibition of a party (Article 13 (2) of the Law on the FCC in conjunction with Article 21 (2) of the Basic Law)

Under the Basic Law political parties are important factors of the constitutional set-up; they participate in forming the political will of the people. They may be freely established and freely pursue their activities. However, in order to preserve and protect the democratic order, Article 21 (2) of the Basic Law makes provision for the suppression of the activities of parties hostile to the constitution: Parties which, by reason of their aims or the behaviour of their adherents, seek to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany are unconstitutional. They can be banned by the Federal Constitutional Court. The free play of political forces in the democracy is to be restricted in those cases where opponents of the democracy seek to eliminate it by democratic means. Thus, Article 21 (2) also reflects the “contentious democracy” opted for.

However, the Federal Constitutional Court may institute proceedings for the prohibition of a party only if the Bundestag, the Bundesrat, the Federal Government or – in the case of a party confined to a single Land – a Land government makes an application to that effect. It is left to their discretion whether they make such an application. They may decide not to do so if they consider it better to combat a party they regard as unconstitutional by political means, above all by public discussion during an election campaign.

As long as the Federal Constitutional Court has not declared a party to be unconstitutional and banned it, no one may hamper the political activities of the party and its adherents since they are still legally permissible (so-called “party privilege”) (see Articles 43-47 of the Law on the FCC).

Until now party prohibition proceedings have been instituted on five occasions. Twice they resulted in prohibitions, i.e. of the Socialist Reich Party (SRP), an extreme right-wing party (decision of 23 October 1953 – vol. 2, p. 1), and the prohibition of the Communist Party of Germany (KPD) with the structure and manifesto it had at the time (decision of 17 August 1956 – vol. 5, p. 85).

3. Scrutiny of elections (Article 13 (3) of the Law on the FCC in conjunction with Article 41 (2) of the Basic Law)

The scrutiny of elections involves decisions on the validity of elections. Elections to the Bundestag are first scrutinized by the Bundestag itself (Article 41 (1) of the Basic Law), which has a special preparatory committee for this purpose. The Bundestag also decides whether a deputy has lost his seat in the Bundestag; the conditions under which such a loss occurs are laid down in the Federal Electoral Law. The persons affected may lodge a complaint with the Federal Constitutional Court against a decision of the Bundestag on the validity of an election or the loss of a seat (cf. Article 48 of the Law on the FCC).

The purpose of the election scrutiny procedure is to ensure the right composition of the Bundestag. A complaint can therefore be successful only in the case of an error which has actually had repercussions on the distribution of seats.

Up to the end of 1995 a total of 89 cases involving the scrutiny of elections or the loss of seats had been pending before the Federal Constitutional Court and 73 decisions passed.

4. Impeachment of the Federal President and judges (Articles 13 (4) of the Law on the FCC in conjunction with Article 61 of the Basic Law; Article 13 (9) of the Law on the FCC in conjunction with Article 98 (2) and (5) of the Basic Law)

Pursuant to Article 61 of the Basic Law, the Bundestag or the Bundesrat may impeach the Federal President before the Federal Constitutional Court for wilful violation of the Basic Law or any other federal law. If the application proves to be founded, the court may declare the Federal President to have forfeited his office (for procedural details see Articles 49-57 of the Law on the FCC).

A distinction must be made between impeachment of the President and a dispute between organs involving the Federal President; the latter relates to the interpretation of the constitution and does not deal with the question of whether a culpable act has been committed (see below).

Until now there have not been any proceedings for impeachment of the Federal President or a judge.

The impeachment of judges must be seen in conjunction with the constitutional guarantee of the independence of judges (Article 97 of the Basic Law): The professional and personal independence of a judge is not designed to protect him if he contravenes the principles of the free democratic order. Under Article 98 (2) and (5) of the Basic Law the appropriate parliament may impeach a judge if he has infringed the principles of the Basic Law or the constitutional order of a Land.

A federally-appointed judge may be impeached only by the Bundestag, and a Land-appointed judge only by the parliament of the Land in question. If the charges prove to be founded, the Federal Constitutional Court may order the judge to be given a different function or retired or (in a case of intentional infringement) dismissed (for details see Article 58-62 of the Law on the FCC)(4).

5. Constitutional disputes between governmental organs

These are disputes between governmental organs in which one organ claims that its constitutional rights under the Basic Law have been harmed by the conduct of another organ. These disputes also seldom occur but they usually have a far-reaching impact on constitutional law and political affairs.

a) Disputes between organs (Article 13 (5) of the Law on the FCC in conjunction with Article 93 (1) (1) of the Basic Law)

Pursuant to Article 93 (1) (1) of the Basic Law, the Federal Constitutional Court decides on the interpretation of the Basic Law in the event of disputes concerning the extent of the rights and duties of a highest federal organ or of other parties concerned who have been vested with rights of their own by the Basic Law or by rules of procedure of a highest federal organ. The organs are the Federal President, the Bundestag, the Bundesrat, the Federal Government and components of those organs, e.g. a group in the Bundestag or, under certain circumstances, individual deputies.

The court decides whether the organ has stayed within the limits of the functions assigned to it or has exceeded its competences. The applicant must assert that an act or omission by another organ has harmed or directly endangered the rights and duties assigned to him by the Basic Law. In its decision the court states whether the act or omission complained of infringes a provision of the Basic Law (for details see Articles 63-67 of the Law on the FCC).

Up to the end of 1995 112 cases involving disputes between organs had been pending before the Federal Constitutional Court and 53 decisions passed.

Examples:

– Upon application by a group in the Bundestag, the Federal Constitutional Court had to decide whether the Federal Government and the Federal Minister of Finance violated the Bundestag´s budgetary right under Article 110 of the Basic Law by approving certain extra-budgetary expenditure without first obtaining the consent of the Bundestag (cf. decision of 25 May 1977 – vol 45, p. 1).

– In a dispute between organs, brought in by four Members of the Bundestag, the Federal Constitutional Court decided that the ordinances issued by the Federal President on 6 January 1983 on the dissolution of the 9th German Bundestag and the holding of premature elections did not violate the Basic Law (decision of 16 February 1983 – vol. 62, p. 1).

– In another dispute between organs the FCC had to decide on the legal status of a Member of the Bundestag who was not part of any parliamentary group. The Court decided that the German Bundestag violated the MP´s constitutional status, as guaranteed by Article 38 (1) of the Basic Law, in that it gave him no opportunity to participate in a Bundestag committee as a member with the right to speak and put forward motions (decision of 13 June 1989, vol. 80, p. 188).

– Upon application by three political parties, the FCC dealt with electoral law in the case of the first pan-German election to the German Bundestag. The Court decided that, under the special circumstances of the first pan-German election, it would violate the right of parties to equal opportunity if the normal five-percent hurdle for the whole of Germany, as laid down in the Federal Electoral Act, were retained. It would, however, be acceptable to have a regional restrictive clause which allowed the parties to take part in the proportional compensation system if they, in either the former territory of the Federal Republic of Germany, including West Berlin, or in the territory of the German Democratic Republic, including East Berlin, gained 5 % of the votes cast in their Land party lists. The different initial conditions pertaining for parties and political organizations in the German Democratic Republic required an additional compensation to that offered by the approval of party lists (decision of 29 September 1990, vol. 82, p. 322).

– Upon application by Bundestag members and parliamentary groups, the FCC decided that the Federal Republic of Germany may send its armed forces to participate in NATO and WEU missions aimed at implementing UN Security Council resolutions. The same applied to participation by German armed forces in peace-keeping forces created by the UN. However, the Basic Law obliged the Federal Government to obtain the constitutive approval of the Bundestag for such actions, normally prior to the event (decision of 12 July 1994, vol. 90, p. 286).

b) Disputes between the Federation and the Laender (Article 13 (7) and (8) of the Law on the FCC in conjunction with Article 93 (1) (3) and (4) of the Basic Law)

In a federal state like the Federal Republic of Germany, disputes over rights and duties may occur not only between federal organs but also between the Federation and the Laender as well as between individual Laender. In particular, these disputes relate to the delimitation of competences between the Federation and the Laender as established in the Basic Law.

Pursuant to Article 93 (1) (3) and (4) of the Basic Law, the Federal Constitutional Court decides on such disputes. Only the Federal Government and Land governments may be parties to them (for details see Articles 68-72 of the Law on the FCC).

Up to the end of 1995 101 such cases had been pending before the Federal Constitutional Court and 48 decisions passed.

Examples:

– In 1960 Hesse and Hamburg instituted proceedings for a decision on whether the Federal Government may establish a television company. At the time the Federal Government had set up a private company fully under its control for broadcasting television programmes. The Federal Constitutional Court ruled that this is incompatible with the Basic Law. It stated that the Federal Government´s competences in this field are confined to dealing with telecommunications and transmission; the direction of programming, however, is the responsibility of the Laender (decision of 28 February 1961 – vol. 12, p. 205).

– In a dispute between the Federation and the Laender the court ruled that the Laender are not obliged to observe the provisions on education contained in the concordat concluded in 1933 between the German Reich and the Catholic Church (the Holy See) because under the Basic Law the Laender alone are responsible for educational matters (decision of 26 March 1957 – vol. 6, p. 309).

– In another dispute between the Federation and a Land, the Federal Constitutional Court ruled that a Land government must intervene if individual communities of the Land plan to conduct a plebiscite on defence matters. It stated that such matters are the exclusive responsibility of the Federation and that the population of a Land may not exert political pressure on the federal organs which are alone responsible (decision of 30 July 1958 – vol. 8, p. 104).

c) Disputes within a Land (Article 13 (8), third alternative, and Article 13 (10) in conjunction with Article 93 (4), third alternative, and Article 99 of the Basic Law)

The Federal Constitutional Court decides on disputes between organs within a Land unless recourse to another court exists (Article 93 (4), third alternative, of the Basic Law). This ensures that, if there are any gaps in the legal protection afforded by the constitutional court of a Land, a dispute between constitutional organs of the Land can still be brought before a constitutional court.

Furthermore the Federal Constitutional Court decides on constitutional disputes within a Land if such decision has been assigned to it by Land legislation (Article 99 of the Basic Law). Schleswig-Holstein has made use of this possibility. The Federal Constitutional Court has thus decided on several disputes in that Land.

Up to the end of 1995 16 cases involving such disputes had been pending before the Federal Constitutional Court and 10 decisions passed.

6. Review of law

Federal and Land legislation is subject to the constitutional order (Article 20 (3) of the Basic Law). A law which is adopted by the correct procedures is not automatically compatible with the constitution. Its substance must also be in conformity with the constitution; in particular, it must not violate the basic rights of the individual. Article 1 (3) of the Basic Law states expressly that the basic rights listed in it are binding upon the legislature. The Federal Constitutional Court must check that the legislature acts in accordance with the provisions of the Basic Law when issuing legal rules. The Basic Law envisages various types of procedure for this purpose.

a) Review of law in general (Article 13 (6) of the Law on the FCC in conjunction with Article 93 (1) (2) of the Basic Law)

In proceedings of this type, the Federal Constitutional Court decides independently of a specific dispute on the compatibility of federal law or Land law with the Basic Law or on the compatibility of Land law with other federal law.

Only the Federal Government, a Land government or at least one third of the Members of the Bundestag may apply for such proceedings. By this means in particular the Opposition in the Bundestag, provided that it holds at least one third of the seats, has recourse to the Federal Constitutional Court if it considers a law adopted by the majority of the deputies to be unconstitutional.

The subject of such review may be any legal rule of the Federation or of a Land; in other words, not just laws adopted by parliament but also government ordinances or the by-laws of independent public bodies. It is immaterial whether the rule was issued before or after the entry into force of the Basic Law (1949). The application for proceedings need not serve the purpose of having a legal rule declared null and void; rather, the court may also be asked to state expressly that a provision is compatible with the Basic Law, for instance if doubts exist in practice about the compatibility of Federal or Land law with the Basic Law or of Land law with Federal law (for details see Articles 76-79 of the Law on the FCC).

Up to the end of 1995 126 cases of this kind had been pending before the Federal Constitutional Court and 71 decisions passed.

Examples:

– The Federal Constitutional Court had to decide, upon application by Bavaria, whether the law endorsing the Treaty of 21 December 1972 on the Basis of Relations between the Federal Republic of Germany and the German Democratic Republic was compatible with the Basic Law. The court stated that, interpreted in terms of constitutional law, the law in question was compatible with the Basic Law (decision of 31 July 1973 – vol. 36, p. 1).

– In a law promulgated in February 1989 the Land Parliament of Schleswig-Holstein granted limited voting rights in municipal and county elections to resident foreigners from six European countries in which Germans can vote in local elections. Upon application by Bundestag members and Land Bavaria, the FCC, in an abstract review procedure, found this law to be in violation of the Basic Law and thus null and void. The law, it said, violated Article 28 (1), sentence 2 of the Basic Law, in which the people in municipalities and counties shall be represented by an elected body; the phrase “the people in municipalities and counties”, however, only included the Germans living in these areas (decision of 31 October 1990, vol. 83, p. 37).

Using a corresponding reasoning, upon application by Bundestag members, the law promulgated in Land Hamburg in February 1989 introducing voting rights for foreigners in district elections was also found to be in violation of the Basic Law and thus also to be null and void (decision of 31 October 1993, vol. 83, p. 60).(5)

– Pursuant to an application for review by 249 CDU/CSU parliamentary group members and by Land Bavaria, the FCC decided on the constitutionality of provisions of the Pregnant Women´s and Family Assistance Act of 27 July 1992. This law was designed, following German reunification, to establish an abortion law valid in the whole of Germany and to remove the legal differences in the two reunited parts. The FCC declared that, in particular, the new Article 218 a (1) of the Penal Code was null and void, since it states that an abortion undertaken with the aid of a doctor within 12 weeks of conception, after the expectant mother has had a compulsory advisory meeting, is “not illegal”, as were the provisions of Article 219 of the Code on content and organization of this compulsory advice. The FCC regards it as constitutionally permissible for the legislator to select a governing concept for the protection of unborn human life which, above all, relies on advice and assistance for the pregnant woman in her conflict, in the early stages of pregnancy, in order to persuade her to carry the child to term, and which in order to guarantee the openness and effectiveness of the advice dispenses with the threat of punishment for an abortion subsequently carried out. However, the Basic Law places requirements upon the content and conditions of such a protective concept (in particular advice encouraging the protection of life, the obligation of the doctor and other relatives, the strengthening of general consciousness of the law), which made amendments to the Pregnant Women´s and Family Assistance Act necessary (decision of 28 May 1993, vol. 88, p. 203).

b) A variation of the review of law in general is contained in Article 93 (1) (2a), inserted into the Basic Law in 1994, according to which the Federal Constitutional Court shall rule in future also in case of disagreement as to whether a law meets the requirements of Article 72 (2) of the Basic Law which gives the Federation the right to legislate concurrently with the Länder. Applicants may be the Bundesrat, a Land government or a Land parliament.

c) Review of specific laws (Article 13 (11) of the Law on the FCC in conjunction with Article 100 (1) of the Basic Law)

Cases of this type occur when a court considers a law to be unconstitutional the validity of which is relevant to its decision in a specific case.

Every court in the Federal Republic is entitled and duty-bound to examine whether legal provisions are compatible with the constitution. It must stay its proceedings and obtain a decision from the Federal Constitutional Court if it considers a statutory provision to be incompatible with the constitution (or a Land law incompatible with a Federal law) (Article 100 (1) of the Basic Law). It is intended that only the Federal Constitutional Court as a constitutional organ should be able to declare that a law enacted by the democratic legislature is unconstitutional and hence null and void. This procedure serves to ensure confidence in law and uniform administration of justice; this might not be possible if each individual court were authorized not to apply a statutory provision which it deems unconstitutional.

The court must transmit to the Federal Constitutional Court the files of the case and state in detail why its decision in that case depends on the validity of the statutory provision submitted for review and why it considers that provision to be unconstitutional. The Federal Constitutional Court merely decides whether or not the legal rule submitted is compatible with the constitution; it does not decide on the legal dispute itself which was the cause of the submission (for details see Articles 80-82 of the Law on the FCC).

Since this method of reviewing specific laws is to take account of the authority of the democratic legislature, it applies only to laws which have been enacted by legislative bodies bound by the Basic Law. Laws which were passed before the Basic Law came into force in May 1949 (so-called pre-constitutional law) as well as legal provisions not enacted by the parliament (such as government ordinances) may be reviewed by individual courts themselves, who may choose not to apply them in the dispute before them.

Proceedings involving the review of specific laws account for the second largest share of the Federal Constitutional Court´s activities (coming after proceedings relating to constitutional complaints, which are described below). Up to the end of 1995 2,955 cases had been pending before the court and 973 decisions passed. The court has found over 300 statutory provisions to be null and void or incompatible with the Basic Law (or a Federal law). It has taken numerous important decisions in various fields, e.g. access to higher education (cf. the numerus clausus decision of 18 July 1972 – vol. 33, p. 303), nuclear energy (cf. decision of 8 August 1978. – vol. 49, p. 89), marital and family affairs (cf. decision of 28 February 1980 on the divorce law amendment – vol. 53, p. 224); Decision of 5 March 1991 on the obligation to equal treatment of man and wife when fixing the married name under Article 1355 of the Civil Code, vol. 84, p. 9), on social affairs (cf. decision of 7 November 1992 on the inclusion of cohabitation partner´s income when calculating unemployment assistance, vol. 87, p. 234), taxation (cf. decision of 25 September 1992 on the tax-free subsistence minimum, vol. 87, p. 153), criminal law (cf. decision of 21 June 1977 on the constitutionality of life imprisonment, vol. 45, p. 187).

d) Procedure under Article 100 (2) and (3) of the Basic Law (Article 13 (12) and (13) of the Law on the FCC)

Pursuant to Article 100 (2) of the Basic Law the Federal Constitutional Court decides, when requested by a court, whether a rule of public international law is an integral part of Federal law and whether such rule directly creates rights and duties for the individual. This is designed to limit any impairment of the authority of the legislature and of confidence in law that might result from the incorporation of general rules of public international law into Federal law since such rules take precedence over national laws (Article 25 of the Basic Law) (on this procedure cf. Articles 83 and 84 of the Law on the Federal Constitutional Court). Up to the end of 1995 12 such cases had been pending before the Federal Constitutional Court and 6 decisions passed.

Pursuant to Article 100 (3) of the Basic Law, the constitutional court of a Land which, in interpreting the Basic Law, proposes to deviate from a decision of the Federal Constitutional Court or of the constitutional court of another Land must obtain a decision from the Federal Constitutional Court (cf. Article 85 of the Law on the FCC). Up to the end of 1995 eight such cases had been pending before the Federal Constitutional Court and four decisions passed.

7. Constitutional complaints (Article 13 (8 a) of the Law on the FCC in conjunction with Article 93 (1) (4 a) and (4 b) of the Basic Law)

Pursuant to Article 93 (1) (4 a) of the Basic Law, a constitutional complaint may be lodged by any person who claims that one of his basic rights or of certain rights similar to basic rights (e.g. his right to be heard by a court or his right to a legally competent judge) has been violated by public authority (cf. Article 90 (1) of the Law on the FCC). This form of complaint is an extraordinary legal remedy available to the individual for the maintenance of his basic and allied rights. It reflects the special importance which the Basic Law attaches to the basic rights of the individual vis-à-vis public authority. The basic rights embodied in the Basic Law (cf. the rights listed in Articles 1-19, e.g. equal rights for men and women, freedom of religion, expression, assembly and profession, and the right to property) are not mere programmatic tenets but are directly enforceable law binding the legislature, the executive and the judiciary (Article 1 (3) of the Basic Law). If an individual feels that one of his basic rights has been violated by any act of a public authority, be it a federal or a Land authority, he may have direct recourse to the Federal Constitutional Court; he does not need to obtain an attorney and does not have to pay court fees.(6)

A constitutional complaint may be entered by any person, i.e. not only natural persons but also bodies corporate, e.g. joint-stock companies. Where basic rights apply not just to Germans but to everyone (e.g. equality before the law and freedom of expression) foreigners, too, may enter a constitutional complaint if such rights are violated. Communes and associations of communes are entitled to lodge a constitutional complaint if they feel that their right to self-government has been violated by a law (cf. Article 28 (2) of the Basic Law).

A constitutional complaint may relate to any act by a public authority violating a basic right: a law, a directive of an administrative agency, or a court decision. However, the requirement for lodging such a complaint with the Federal Constitutional Court is that there is no other means of eliminating the violation of a basic right. In principle all remedies within the relevant branch of jurisdiction (e.g. civil, criminal or administrative) must therefore first be exhausted before having recourse to the Federal Constitutional Court (principle of subsidiarity, cf. Article 90 (2) of the Law on the FCC). If these remedies prove unsuccessful, a person may enter a constitutional complaint with the Federal Constitutional Court within one month of the decision being announced or received by the court of last instance (Article 93 (1) of the Law on the FCC). In exceptional circumstances, the Federal Constitutional Court may decide immediately on a complaint lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant. This takes account of the dual nature of the constitutional complaint: it is an extraordinary legal remedy available to the individual for defending his basic and allied rights, but at the same time it has the purpose of preserving objective constitutional law and serving the latter´s interpretation and development.

In special cases a constitutional complaint (without prior recourse to the relevant courts) may also be entered directly against a law or individual statutory provisions. This presupposes that the law actually and directly impairs an individual´s specific rights even before the occurrence of an administrative act for the purpose of enforcing the law. The Federal Constitutional Court found that an individual was directly affected by a statutory provision in the following cases among others: complaints by parents against statutory provisions for reforming the education system, by book-sellers against statutory provisions regulating the closing times of their shops, and by civil servants against the salary grading scheme of the Law on the Remuneration of Civil Servants. Complaints may be lodged directly against a law only within one year of the law coming into force (Article 93 (3) of the Law on the FCC).

In proceedings relating to constitutional complaints the constitutionality of laws is examined not only if a complaint has been lodged directly against a law. The court also examines the validity of statutory provisions if a complaint has been entered against a judicial or executive decision which, in the view of the complainant, is based on an unconstitutional provision.

In these proceedings the court must only examine whether the act complained of, e.g. a judicial decision, violates the complainant´s basic rights. A constitutional complaint does not enable the defeated party in proceedings before a specialized court to have the decision against him reviewed once more in order to establish whether it is correct from a factual viewpoint. The interpretation of legal provisions subordinate to the constitution (“ordinary law”) and their application in an individual case as well as the ascertainment and assessment of the facts of the case are exclusively the responsibility of the competent courts; these things may be reviewed by the Federal Constitutional Court only for the purpose of determining whether the courts have violated constitutional law in the process. This is not the case if a decision is objectively wrong in terms of ordinary law; the error must consist in the violation of basic rights. This fact is frequently ignored by complainants, and as a result many constitutional complaints prove unsuccessful.

To ensure that the Federal Constitutional Court can continue to function effectively in view of the large number of constitutional complaints entered, the law provides for an acceptance procedure, i.e. an initial preliminary examination of each complaint by a chamber consisting of three judges. Pursuant to Article 15 a of the Law on the Federal Constitutional Court, each panel must appoint several such chambers, each of which may, by a unanimous decision, refuse acceptance of a constitutional complaint if it is inadmissible (e.g. received after the deadline) or does not meet the requirements for acceptance as laid down in Article 93a (2) of the Law on the FCC. The chamber need not state its reasons for such a decision. In this way the Federal Constitutional Court is able to reject quickly and without excessive effort the many constitutional complaints which do not have any prospect of success. In many cases the complainants are informed in writing prior to the decision on why their complaint has no prospect of success.

The constitutional complaint must be accepted in so far as it has fundamental constitutional-law significance (Article 93 a (2) (a) of the Law on the FCC) or if acceptance is indicated in order to enforce the rights referred to in Article 90 (1) of the Law on the FCC; this may also be the case if the complainant would be seriously disadvantaged by the Court´s refusal to make a decision on this issue, and would thus be existentially affected by the violation of his basic rights (Article 93 a (2) (b) of the Law on the FCC). In this last case the chambers rather than the panel may approve the complaint if the basic constitutional issue has already been decided upon by the Federal Constitutional Court and if the complaint is clearly well-founded (Article 93 c(1) of the Law on the FCC). However, the decision which declares, with force of law, that a law is incompatible with the Basic Law or other Federal law and is thus null and void, is reserved for the panel (Article 93 c (1), sentence 3, of the Law on the FCC).(7)

The decisions of these chambers are final; one may not appeal to the panel itself.

If the chamber does not refuse acceptance of a constitutional complaint, the panel may decide to accept the complaint (Article 93 b, 93 d (3), sentence 2, of the Law on the FCC) if at least three judges agree.

Constitutional complaints are of major importance in the constitutional order of the Federal Republic of Germany. They are a special means of ensuring the constitutional rights of the individual and have heightened his awareness of his basic rights. Consequently, despite the great burden which such complaints pose on the Federal Constitutional Court, no one has seriously considered doing away with them. On the contrary, because of its importance for the protection of the individual´s basic rights, the constitutional complaint was expressly incorporated into the Basic Law in 1969 (Article 93 (1) (4 a)); until then it had merely been dealt with in the Law on the Federal Constitutional Court (Article 90 et seq.).

Of the 107,179 cases which had been pending before the Federal Constitutional Court up to the end of 1995, 102,773 related to constitutional complaints. In the same period 3,763 decisions were passed by the panels on complaints, whilst 81,417 complaints were passed by the examining courts. At present 5,000 new complaints are received every year. Up to the end of 1995, 2,747 complaints (=2.76 %) were successful. This does not include the cases which were settled to the complainants´ advantage owing to legislation being modified, the sovereign act complained of being repealed or other circumstances. The relatively small number of successful complaints gives, incidentally, no indication of the importance of this legal remedy. On the one hand, a decision repealing a sovereign act complained of frequently has an impact reaching far beyond the individual case involved. If, for example, the Federal Constitutional Court quashes a court decision because it rests on an unconstitutional interpretation of a statutory provision, this means that in future all state bodies, including all courts, must base their decisions on the interpretation of the provision which is in conformity with the constitution. On the other hand, where a constitutional complaint is rejected the statement of the reasons for the decision to that effect often contains observations on questions of constitutional law which have a considerable impact on the activities of the legislature, the executive and the judiciary going beyond the individual case involved.

The decisions passed by the Federal Constitutional Court in proceedings involving constitutional complaints have helped greatly to lend efficacy to the protection which basic rights afford the individual. Here are but a few of the many important decisions:

– In its decision of 11 June 1958 (vol. 7, p. 377) the Federal Constitutional Court found that statutory restrictions on the freedom of establishment of pharmacists are incompatible with the basic right freely to choose one´s occupation; the decision contained fundamental observations on the scope of the protection afforded by this basic right.

– In 1959 the Court held that a statutory provision whereby, in the event of differences of opinion between father and mother on the exercise of parental authority, the father alone should decide is incompatible with the principle of sexual equality (vol. 10, p. 59).

– In a decision of 18 December 1968 (vol. 24, p. 367) on the Hamburg Dykes Act the Court made fundamental remarks on the protection of property.

– In a case involving a constitutional complaint lodged against statutory provisions governing the participation by university members in the administration of universities in Lower Saxony, the Court laid down important principles on university organization in connection with constitutionally guaranteed academic freedom (decision of 29 May 1973 – vol. 35, p. 79).

– In its decision of 1 March 1979 (vol. 50, p. 290) the Court decided that the extended employee co-determination under the Co-determination Act of 4 May 1976 is compatible with the basic rights of the companies, share-holders and employers covered by the law.

– In a decision of 15 December 1983 on the Census Act, the Court developed the citizen´s right to determine for him/herself what information is given (vol. 65, p. 1).

– In a decision of 6 May 1981 (vol. 57, p. 250) the Court decided, inter alia, on the admissibility of hearsay evidence in criminal proceedings.

– In a decision of 2 March 1993 the Court dealt with the employment of tenured civil servants as strike-breakers: Article 9 (3), sentence 1, of the Basic Law guarantees the right to form associations and protects the autonomy of unions. This provision is violated if, during a legal strike, the German Post Office orders tenured civil servants to occupy positions vacated due to the strike, as long as no legal provision exists for such a case (vol. 88, p. 103).

– The decision of 2 July 1980 (vol. 54, p. 341) deals with the conditions under which foreigners may claim asylum in the Federal Republic of Germany; that of 10 July 1989 (vol. 80, p. 315) deals with the concept of political repression in civil wars and the issue of an alternative to flight in one´s home country; that of 23 January 1991 (vol. 83, p. 216) deals with conditions under which a court may assume that, due to persecution of other members of his/her group, an asylum-seeker him/herself is in danger of being persecuted.

– In a significant decision for the further development of the European Union, dated 12 October 1993 (vol. 89, p. 155), the Court dealt with constitutional complaints against the Law on the Treaty on European Union and the Law amending the Basic Law; these laws were designed to create the constitutional preconditions for the ratification of the Treaty of 7 February 1992 founding the European Union (Maastricht Treaty).

In its decision the Court declared the Treaty on European Union to be compatible with the democratic principle guaranteed in Article 38 of the Basic Law; it also, however, placed specific preconditions on the European Union and made specific demands on its democratic legitimation. The democratic principle does not prevent the Federal Republic of Germany from becoming a member of a – supranationally organized – community. It is, however, a precondition for membership that a legitimation and an influence proceeding from the people is also secured inside the confederation of allied states. Since the Union Treaty establishes a confederation of allied states for the purpose of realizing an ever-closer union of the peoples of Europe organized as states, and not a state based on the people of one European nation, it is the peoples of the member states themselves who must first of all democratically legitimize, via their own parliaments, the exercise of sovereign tasks by the European Union. Thus limits to the extension of the Communities´ functions and powers are set by virtue of the democratic principle. From that it follows that functions and powers of substantial importance must remain for the German Bundestag. If it is unclear to what extent the German legislator agreed to the transfer of the exercise of sovereign rights to the European Union, this would be tantamount to a carte blanche and thus a surrender of sovereign rights, against which Article 38 of the Basic Law safeguards.

The functions of the European Union and the powers granted enabling them to be carried out are regulated by the Treaty in an adequately foreseeable manner in that the principle of limited individual powers is adhered to, no residual powers to extend its competence are conferred on the European Union, and the claiming of further functions and powers by the European Union and the Communities is made dependent upon supplementation and amendment of the Treaty, and thereby subject to the affirmative decision of the national parliaments. If, for example, European institutions or organs used or developed the Treaty in such a way that it no longer coincided with that Treaty upon which the Law approving it was based, the resulting legal acts would no longer be binding on German territory. The German authorities would be prevented for constitutional reasons from applying these acts in Germany. The Federal Constitutional Court therefore reviews legal instruments of European institutions and organs to see whether they remain within the limits of the sovereign rights conferred on them or whether they transgress those limits.

Sovereign acts performed by the European Communities also affect the holders of basic rights in Germany and therefore affect the guarantees afforded by the Basic Law and the duties of the Federal Constitutional Court regarding protection of constitutional rights in Germany and thus not merely against German state organs. However, the Federal Constitutional Court exercises jurisdiction over the applicability of secondary Community legislation in Germany in a “cooperative relationship” with the European Court of Justice, in which the ECJ guarantees protection of basic rights in each individual case for the whole European Union, which means that the FCC can concentrate on generally guaranteeing essential standards for basic rights.

– In a decision of 15 May 1995 (vol. 92,277) the Court decided that nationals of the former GDR who, prior to German reunification, engaged in espionage against the Federal Republic of Germany for their country´s intelligence services may only be prosecuted for espionage after reunification under specific circumstances. The material penal provisions regarding treason and espionage were in conformity with the Basic Law to the extent that they threatened staff and agents of the GDR intelligence services with punishment on account of their activities against the Federal Republic and its allies. Indeed, generally-recognized international-law provisions placed no obstacles in the path of the prosecution and punishment of such crimes. However, following reunification, the constitutional principle of proportionateness imposes limits on prosecution. Any state merely threatens to punish those who spy for a foreign power, while at the same time itself engaging in espionage and protecting its own spies. The punishability of espionage is thus not based on a general socio-ethic negative judgment. This fact, against the background of the particular situation facing the staff of the GDR intelligence services following reunification, must be considered in their prosecution.

III. Panels and their Composition

1. Given the wide-ranging tasks of the Federal Constitutional Court, it would be difficult for a single body to pass decisions on all these matters. The court has therefore from the start been conceived as a “twin court”, comprising two panels with 8 judges each (the original number of 12 judges per panel was decreased to 10 in 1956 and subsequently to 8 in 1963). Both panels have separate competences and are completely independent of one another; within the scope of its competences each panel is “the Federal Constitutional Court”. The independence of the panels is also reflected in the fact that each judge is elected to one panel only; a judge from the other panel may, on principle, not deputize for him(8). The President of the Federal Constitutional Court and his deputy, the Vice-President, rank among the judges. They each preside over the panel to which they have been elected. Each panel has a quorum if at least six judges are present (cf. Article 15 of the Law on the FCC).

Together, the judges of both panels constitute the plenum: the latter therefore comprises 16 judges, including the President and the Vice-President. If a panel has decided on a question of constitutional law, the question is thus settled. If the other panel intends to deviate from this decision the plenum must decide on the matter (Article 16 of the Law on the FCC). Only two plenary decisions of this type have been taken so far in the history of the Federal Constitutional Court: in 1954 (vol. 4, p. 27) and in 1980 (vol. 54, p. 277).

The competences of the panels are laid down by law (Article 14 of the Law on the FCC). However, in order to ensure an even workload for the two panels, the law permits redistribution of the competences by means of a plenary decision if this becomes imperative because one of the panels is permanently overburdened. The decision on this matter has to be published in the Federal Law Gazette. The last time the court made repeated use of this option was in 1993.(9)

The First Panel is competent for legal review proceedings and constitutional complaints in which questions regarding the interpretation of substantive basic rights (Articles 1-17 of the Basic Law or rights equal to those in the Basic Law, Articles 19, 101 and 103 (1) predominate (so-called “basic rights panel”). The Second Panel is primarily responsible (Article 14 (2) of the Law on the FCC) for proceedings involving the forfeiture of basic rights, complaints relating to the scrutiny of elections, impeachment of the Federal President and judges, disputes between organs, disputes between the Federation and Laender, and party prohibition proceedings (so-called “constitutional law panel”).

The Second Panel is also competent for important areas of basic rights by way of decisions. In accordance with the plenary decision of 15 November 1993, the Second Panel is competent, among other things, for legal review proceedings and constitutional complaints in which questions other than those involving the interpretation and application of Articles 1-17, 19, 101, and 103 (1) of the Basic Law, and, independently of Basic Law rules to be examined in each case, legal review proceedings and complaints in the fields of asylum and aliens law, the law on citizenship, the public service, of military and substitute service, of penal proceedings and proceedings concerning administrative penalties (apart from proceedings in which the interpretation and application of Articles 5 or 8 of the Basic Law predominate) as well as of custody and imprisonment, of detention for the sake of public security and correction, and of income-tax and church-tax law.

If doubts exist as to the competences of the panels, the matter is decided by the so-called committee of six, consisting of the President, the Vice-President and two judges from each panel (Article 14 (5) of the Law on the FCC as well as Article 43 et seq. of the FCC Rules of Procedure).

2. The composition of the Federal Constitutional Court is laid down in the Basic Law (Article 94): Half of the judges of each panel are elected by the two Federal legislative bodies (Bundestag and Bundesrat).

Candidates must have reached the age of 40, be eligible for election to the Bundestag, have stated in writing that they are willing to become a member of the Federal Constitutional Court, and be qualified to exercise the functions of a judge pursuant to the Judges Act (Article 3 (1) and (2) of the Law on the FCC). Jurists of all professions are therefore eligible.

The Bundesrat elects the judges directly, whilst the Bundestag elects them indirectly by means of a 12-man electoral committee whose composition is determined by the strength of the parties in the Bundestag. In both cases, a two-thirds majority is required (Articles 6 and 7 of the Law on the FCC). Three judges of each panel are elected from among the judges of the five supreme Federal courts of justice; this is to ensure that the Federal Constitutional Court includes members with long-standing experience as judges. Once elected, the judges, male and female, are appointed by the Federal President; on assuming office they take an oath binding them as impartial judges to observe faithfully at all times the Basic Law of the Federal Republic of Germany and to perform conscientiously their judicial duties towards others (Article 11 of the Law on the FCC).

The President and the Vice-President of the Court are elected in the same manner alternately by the Bundestag and Bundesrat. Since they each also preside over a panel, they may not both belong to the same panel (Articles 9 and 15 of the Law on the FCC).

The term of office of the judges is twelve years, and they may not stand for re-election. In all instances the term ends when they reach the age of 68 (Article4 of the Law on the FCC). They may ask to be released from service at any time. Before their term expires they may be retired or dismissed against their will only in pursuance of a plenary decision subject to stringent conditions (cf Article 105 of the Law on the FCC); until now such a decision has not been taken.

Whilst in office they may not belong to the Bundestag, the Bundesrat, the Federal Government, nor any of the corresponding organs of a Land. Their functions as a judge preclude any other professional occupation except that of a lecturer of law at a German institution of higher education. However, the functions of a Judge of the Federal Constitutional Court take precedence over those of a lecturer of law (Article 3 (4) of the Law on the FCC).

For the preparation of decisions each judge is assigned three research assistants; these are Federal or Land civil servants who are delegated to the Court for three years as a rule (cf. Article 13 of the FCC Rules of Procedure). They do not take part in the deliberations of the panels (cf Article 25 of the FCC Rules of Procedure).

IV. Basic Procedural Principles

The rules for the proceedings of the Federal Constitutional Court are derived from the Law on the FCC, which is supplemented by the rules of procedure drawn up by the Court for its internal affairs. The aforementioned law is not exhaustive, but confined to the provisions necessitated by the special nature of a constitutional court. Above and beyond these minimum provisions the Court itself is responsible for elaborating appropriate procedural rules in conformity with the general rules of German law relating to the constitution and proceedings of courts.

An application for the institution of proceedings before the Federal Constitutional Court must be submitted in writing, together with a statement of the reasons. The applicant may be represented by an attorney (or a lecturer of law at a German institution of higher education), but this is not obligatory (cf Article 22 of the Law on the FCC).

The applications received are allotted by the presiding judge of the appropriate panel to a judge who then acts as rapporteur. Each panel decides prior to the start of the business year on the principles according to which the applications are to be distributed among the judges, including the presiding judge (Article15a (2) of the Law on the FCC, Article 20 of the FCC Rules of Procedure). The rapporteur is responsible for the further course of the case in question. If proceedings are instituted, the Court must itself ascertain the facts, independently of the submissions of the parties (“inquisitorial principle”). For this purpose it hears the persons and agencies concerned.

The vast majority of cases are dealt with in written form. It is largely left to the Court´s discretion whether to hold public oral pleadings (cf Articles 25 (1) and 94 (5), second sentence, of the Law on the FCC). As a rule, they are held only if they are expected to assist the case in question. In the event of oral pleadings, the parties must obtain an attorney or a lecturer of law at a German institution of higher education to represent them.

As a rule, each panel takes decisions with a simple majority of the participating judges; at least six of the eight members of the panel must be present, however. If the votes are equal, the presiding judge does not have a casting vote. In such a case the application is not successful: A contravention of the Basic Law or other Federal law cannot be established (cf Article 15 (3), third sentence, of the Law on the FCC). In certain cases (forfeiture of basic rights, prohibition of a party, impeachment of the President or a judge) a majority of two thirds of the members of the panel is required for a decision against the opposing party.

The decisions are passed “in the name of the people”. Pursuant to the provisions of Article 30 (2) of the Law on the FCC inserted in 1970, a judge who is outvoted in the deliberations may have his dissenting view on the decision or its reasons recorded in a separate vote. This separate vote is published together with the decision (for details see Article 56 of the FCC Rules of Procedure). In their decisions the panels may specify the number of votes cast for and against.

Pursuant to Article 31 (1) of the Law on the FCC, the decisions of the Federal Constitutional Court have an impact going beyond the individual case in question: The principles regarding the interpretation of the constitution which derive from a decision and the reasons are binding upon Federal and Land constitutional organs as well as all courts and authorities. Decisions in which a statutory provision is ruled to be compatible or incompatible with the Basic Law or other Federal law or declared null and void have the force of law. This also holds true if the Court decides that a statutory provision is compatible with the Basic Law only if interpreted in a specific manner (“interpretation in conformity with the constitution”). The decision is published in the Federal Law Gazette by the Federal Minister of Justice.

In urgent instances, the Federal Constitutional Court may deal with a matter provisionally – i.e. until the decision in the main proceedings – by means of a temporary injunction. The latter may be issued only if this is urgently needed to avert serious detriment for the person concerned, to ward off imminent force or for any other important reason for the common weal (cf Article 32 of the Law on the FCC). A temporary injunction may be issued, for example, to defer the entry into force of a law. In 1992 the court used this method to stay the penal-law provisions of the Pregnant Women´s and Family Assistance Act dated 27 July 1992 (vol. 86, 390).

No court fees are charged for the proceedings before the Federal Constitutional Court. This takes account of the fact that the Court´s activities are primarily in the public interest. However, a fee is levied – as stated above – for abuse of the constitutional complaint. In principle the parties to a case must themselves meet their costs, e.g. for an attorney. Under certain circumstances these may be reimbursed. If a constitutional complaint proves to be founded, the complainant has to be reimbursed the necessary costs either fully or in part (cf Article 34 a of the Law on the FCC).

Dr. Gotthard Wöhrmann


Endnotes

1 Recently amended by an Act dated 27 October 1994 (Federal Law Gazette I p.3146)

2 In future in Leipzig

3 In future in Erfurt

4 for the special arrangements relating to judges of the Federal Constitutional Court see Article 105 of the Law on the FCC.

5 (Note: In a law promulgated on 21 December 1992, Article 28(1) of the Basic Law was given an additional third sentence, as follows:
In county and municipal elections persons who are nationals of member states of the European Community, too, are entitled to vote and eligible for election in accordance with European Community law.)

6 Regarding the “abuse fee” cf. Article 34 (2) of the Law on the FCC.

7 Regarding the powers of the chambers to decide whether or not a law is incompatible, as part of a review of that specific law, cf. Article 81 a of the Law on the FCC.

8 see exceptions in Articles 15 (2) (2) and 19 (4) of the Law on the FCC

9. See decision of the plenum of the FCC of 15 November 1993 (Federal Law Gazette I, p. 2492).

The above article was first published by Inter Nationes as part of: Law on the Federal Constitutional Court, ed. by Sigrid Born, translated by Martin Fry and produced by Ilona Orthen. Reproduced with kind permission. © 1996 Inter Nationes. This HTML edition by Lawrence Schäfer and© 2001 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.