Federal Constitutional Court
Supreme constitutional court for the Federal Republic of Germany From Wikipedia, the free encyclopedia
The Federal Constitutional Court (German: Bundesverfassungsgericht [bʊndəsfɛʁˈfasʊŋsɡəˌʁɪçt] ; 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 post-World War II republic, the court has been located in the city of Karlsruhe, which is also the seat of the Federal Court of Justice.[3]
 | This article needs additional citations for verification. (December 2021) |
| Federal Constitutional Court | |
|---|---|
| Bundesverfassungsgericht | |
 | |
 | |
| 49°00′45″N 8°24′06″E | |
| Established | 1951[1] |
| Jurisdiction | Federal Republic of Germany |
| Location | Karlsruhe, Baden-Württemberg, Germany |
| Coordinates | 49°00′45″N 8°24′06″E |
| Composition method | Election by Bundestag and Bundesrat |
| Authorized by | Basic Law for Germany |
| Judge term length | 12 years (mandatory retirement at 68) |
| Number of positions | 16 |
| Annual budget | €37.17 million (2021)[2] |
| Website | www |
| President | |
| Currently | Stephan Harbarth |
| Since | 22 June 2020 |
| Vice President | |
| Currently | Doris König |
| Since | 22 June 2020 |
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The main task of the Federal Constitutional Court is judicial review, and it may declare legislation unconstitutional, thus rendering them ineffective. In this respect, it is similar to other supreme courts with judicial review powers, yet the court possesses a number of additional powers and is regarded[by whom?] 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 Basic Law of the Federal Republic of Germany stipulates that all three branches of the state (the legislature, executive, and judiciary) are bound directly by the constitution in Article 20, Section 3 of the document. As a result, the court can rule acts of any branches unconstitutional, whether as formal violations (exceeding powers or violating procedures) or as material conflicts (when the civil rights prescribed in the Grundgesetz are not respected).
The powers of the Federal Constitutional Court are defined in article 93 of the Grundgesetz.[4] This constitutional norm is set out in a federal law, the Federal Constitutional Court Act (BVerfGG), which also defines how decisions of the court on material conflicts are put into force. The Constitutional Court has therefore several strictly defined procedures in which cases may be brought before it:
- Constitutional complaint: By means of the Verfassungsbeschwerde (constitutional complaint) any person may allege that his or her constitutional rights have been violated. Although only a small fraction of these are actually successful (ranging around 2.5% since 1951), several have resulted in major legislation being invalidated, especially in the field of taxation. The large majority of the court's procedures fall into this category; 135,968 such complaints were filed from 1957 to 2002.
- Abstract regulation control: Several political institutions, including the governments of the Bundesländer (states), may bring a federal law before the court if they consider it unconstitutional. A well-known example of this procedure was the 1975 abortion decision, which invalidated legislation intended to decriminalise abortion.
- Specific regulation control: Any regular court which is convinced, that a law in question for a certain case is not in conformance with the constitution must suspend that case and bring this law before the Federal Constitutional Court.
- Federal dispute: Federal institutions, including members of the Bundestag, may bring internal disputes over competences and procedures before the court.
- State–federal dispute: The Länder may bring disputes over competences and procedures between the states and federal institutions before the court.
- Investigation committee control
- Federal election scrutiny: Violations of election laws may be brought before the court by a political institution or any involved voter.
- Impeachment procedure: Impeachment proceedings may be brought against the Federal President, a judge, or a member of one of the Federal Supreme Courts, by the Bundestag, the Bundesrat or the federal government, based on violation of constitutional or federal law.
- Prohibition of a political party: Article 21 of the Basic Law gives the Constitutional Court the power to ban political parties that either threaten the existence of Germany or "seek to undermine or abolish the free democratic basic order". This has happened just twice, both times in the 1950s: the Socialist Reich Party (SRP), a neo-Nazi group, was banned in 1952, and the Communist Party of Germany (KPD) was banned in 1956. A 2003 attempt to ban another neo-Nazi party, the National Democratic Party of Germany (NPD), failed when it was revealed that a significant proportion of its leadership were informants for the Federal Office for the Protection of the Constitution.
Up to 2009, the Constitutional Court had struck down more than 600 laws as unconstitutional.[5]
The court consists of two senates, each of which has eight members, headed by a senate chairperson. The members of each senate are allocated to three chambers for hearings in constitutional complaint and single regulation control cases. Each chamber consists of three judges, so each senate chair is at the same time a member of two chambers. The court publishes selected decisions on its website[6] and since 1996 a public relations department promotes selected decisions with press releases.[7]
Decisions by a senate require a majority. In some cases a two-thirds vote is required.[8] Decisions by a chamber need to be unanimous. A chamber is not authorized to overrule a standing precedent of the senate to which it belongs; such issues need to be submitted to the senate as a whole. Similarly, a senate may not overrule a standing precedent of the other senate, and such issues will be submitted to a plenary meeting of all 16 judges (the Plenum).
Unlike all other German courts, the court often publishes the vote count on its decisions (though only the final tally, not every judge's personal vote) and even allows its members to issue a dissenting opinion. This possibility, introduced only in 1971, is a remarkable deviation from German judicial tradition.
One of the two senate chairs is also the president of the court, the other one being the vice president. The presidency alternates between the two senates, i.e. the successor of a president is always chosen from the other senate. The 10th and current president of the court is Stephan Harbarth.
The Constitutional Court actively administers the law and ensures that political and bureaucratic decisions comply with the rights of the individual enshrined in the Basic Law. Specifically, it can vet the democratic and constitutional legitimacy of bills proposed by federal or state government, scrutinise decisions (such as those relating to taxation) by the administration, arbitrate disputes over the implementation of law between states and the federal government and (most controversially) ban non-democratic political parties.[9] The Constitutional Court enjoys more public trust than the federal or state parliaments, which possibly derives from the German enthusiasm for the rule of law.[10]
The court's judges are elected by the Bundestag (the German parliament) and the Bundesrat (a legislative body that represents the sixteen state governments on the federal level). According to the Basic Law, each of these bodies selects four members of each senate. The election of a judge requires a two-thirds vote (but this supermajority requirement is not constitutionally mandated by the Basic Law, only by normal law[11]). The selection of the chairperson of each senate alternates between Bundestag and Bundesrat and also requires a two-thirds vote.
Up until 2015, the Bundestag delegated this task to a special committee (Richterwahlausschuss, judges election committee), consisting of a small number of Bundestag members. This procedure had caused some constitutional concern and was considered to be unconstitutional by many scholars. In 2015, the Bundesverfassungsgerichtsgesetz (law code of the Federal Constitutional Court) was changed in this respect. In this new system, it is the Bundestag itself that elects judges to the court, and this by secret ballot in the plenum. To be selected, candidates must get a two-thirds majority of those present at the vote, and provided that the number of votes in favor constitutes an absolute majority of the total membership of the Bundestag, including those not present at the vote. The Richterwahlausschuss only retains the power to nominate candidates.[12] This new procedure was applied for the first time in September 2017, when Josef Christ was elected to the first senate as the successor of Wilhelm Schluckebier. In the Bundesrat, a chamber in which the governments of the sixteen German states are represented (each state has 3 to 6 votes depending on its population, which it has to cast en bloc), a candidate currently needs at least 46 of 69 possible votes.
The judges are in principle elected for a 12-year term, though they must retire upon reaching the age of 68 regardless of how much of the 12 years they have served. Re-election is not possible. A judge must be at least 40 years old and must be a well-trained jurist. Three out of eight members of each senate have served as a judge on one of the federal courts. Of the other five members of each senate, most judges previously served as academic jurists at a university, as public servants or as a lawyer. After ending their term, most judges withdraw themselves from public life. However, there are some prominent exceptions, most notably Roman Herzog, who was elected President of Germany in 1994, shortly before the end of his term as president of the court.
Current members
| Name | Term | Nomination by | Election by |
|---|---|---|---|
| First Senate | |||
| Stephan Harbarth (born 1971) (President of the Court, Chairman of the First Senate) |
November 2018 – November 2030 (12-year-term) | CDU/CSU | Bundestag (as judge) Bundesrat (as president) |
| Miriam Meßling (born 1973) | April 2023 – April 2035 (12-year term)[13] | SPD | Bundesrat |
| Yvonne Ott (born 1963) | November 2016 – November 2028 (12-year-term) | SPD | Bundesrat |
| Josef Christ (born 1956) | November 2017 – 2024 (retirement) | CDU/CSU | Bundestag |
| Henning Radtke (born 1962) | July 2018 – May 2030 (retirement) | CDU/CSU | Bundesrat |
| Ines Härtel (born 1972) | July 2020 – July 2032 (12-year term) | SPD | Bundesrat |
| Heinrich Amadeus Wolff (born 1965) | June 2022 – June 2033 (retirement)[14] | FDP | Bundestag |
| Martin Eifert (born 1965) | February 2023 – 2033 (retirement)[15] | Greens | Bundestag |
| Second Senate | |||
| Doris König (born 1957) (Vice president of the Court, Chairwoman of the Second Senate) |
June 2014 – June 2025 (retirement) | SPD | Bundestag (both as judge and as vice president) |
| Ulrich Maidowski (born 1958) | July 2014 – July 2026 (12-year term) | SPD | Bundestag |
| Christine Langenfeld (born 1962) | July 2016 – July 2028 (12-year term) | CDU/CSU | Bundesrat |
| Astrid Wallrabenstein (born 1969) | June 2020 – June 2032 (12-year term) | Greens | Bundesrat |
| Rhona Fetzer (born 1963) | January 2023 – September 2031 (retirement) | SPD | Bundestag |
| Thomas Offenloch (born 1972) | January 2023 – January 2035 (12-year term) | FDP | Bundestag |
| Peter Frank (born 1968)[16] | December 2023 – December 2035 (12-year term) | CDU/CSU | Bundesrat |
| Holger Wöckel (born 1976)[16] | December 2023 – December 2035 (12-year term) | CDU/CSU | Bundesrat |
Presidents of the court
The court's head is the president of the Federal Constitutional Court, who chairs one of the two senates and joint sessions of the court, while the other senate is chaired by the vice president of Federal Constitutional Court. The right to elect the president and the vice president alternates between the Bundestag and the Bundesrat. If the president of the Federal Constitutional Court leaves office, i.e. when his or her term as judge at the court ends, the legislative body, whose turn it is to choose the president, has to elect one of the judges of the senate, of which the former president was not a member, with a two-thirds majority. If the office of the vice president falls vacant, a new vice president is elected from the senate, of which the sitting president is not a member, by the legislative body, which has not elected the former vice president. The given legislative body is free to elect the judge it prefers, but with respect to the position of president, it has been always the sitting vice president, who was elected president, since 1983.
The president of the Federal Constitutional Court ranks fifth in the German order of precedence, as the highest-ranking representative of the judicial branch of government.
| No. | Portrait | Name (birth-death) | Previous service before court appointment | Took office | Left office | Sen. | Vice president |
|---|---|---|---|---|---|---|---|
| 1 |  | Hermann Höpker-Aschoff (1883–1954) | Member of the Bundestag (1949–1951) | 7 September 1951 | 15 January 1954 (died in office) | 1st | Rudolf Katz (1951–1954) |
| 2 |  | Josef Wintrich (1891–1958) | President of the Munich Regional court of appeal (1953) | 23 March 1954 | 19 October 1958 (died in office) | 1st | Rudolf Katz (1954–1958) |
| 3 |  | Gebhard Müller (1900–1990) | Minister President of Baden-Württemberg (1953–1958) | 8 January 1959 | 8 December 1971 | 1st | Rudolf Katz (1959–1961), Friedrich Wilhelm Wagner (1961–1967), Walter Seuffert (1967–1971) |
| 4 |  | Ernst Benda (1925–2009) | Member of the Bundestag (1957–1971) | 8 December 1971 | 20 December 1983 | 1st | Walter Seuffert (1971–1975), Wolfgang Zeidler (1975–1983) |
| 5 | Wolfgang Zeidler (1924–1987) | President of the Federal Administrative Court (1970–1975) | 20 December 1983 | 16 November 1987 | 2nd | Roman Herzog (1983–1987) | |
| 6 |  | Roman Herzog (1934–2017) | Baden-Württemberg State Minister of the Interior (1980–1983) | 16 November 1987 | 30 June 1994 (resigned) | 1st | Ernst Gottfried Mahrenholz (1987–1994), Jutta Limbach (1994) |
| 7 |  | Jutta Limbach (1934–2016) | Berlin Senator of Justice (1989–1994) | 14 September 1994 | 10 April 2002 | 2nd | Johann Friedrich Henschel (1994–1995), Otto Seidl (1995–1998), Hans-Jürgen Papier (1998–2002) |
| 8 |  | Hans-Jürgen Papier (b. 1943) | Professor for constitutional law at the LMU Munich (1992–1998) | 10 April 2002 | 16 March 2010 | 1st | Winfried Hassemer (2002–2008), Andreas Voßkuhle (2008–2010) |
| 9 | _by_Sandro_Halank.jpg) | Andreas Voßkuhle (b. 1963) | Professor for political science and legal philosophy at the University of Freiburg (since 1999) Rector of the University of Freiburg (2008) | 16 March 2010 | 22 June 2020 | 2nd | Ferdinand Kirchhof (2010–2018), Stephan Harbarth (2018–2020) |
| 10 |  | Stephan Harbarth (b. 1971) | Member of the Bundestag (2009–2018) | 22 June 2020 | 1st | Doris König (since 2020) |
The court has been subject to criticism. One complaint is the perceived function as a replacement lawmaker (German: Ersatzgesetzgeber) because it has overturned controversial policies numerous times, such as the Luftsicherheitsgesetz,[17] the Mietendeckel (rent cap) of Berlin,[18] and parts of the Ostpolitik.[19] This behavior has been interpreted as a hindrance to the normal functioning of the parliament.[19]
Another criticism of the federal constitutional court issued by the former president of the Federal Intelligence Service, August Hanning, is that the court tends to overprotect people, according to him, even members of ISIS.[20] He considers that to hinder the efficiency of German intelligence agencies in favour of protecting people in far-away countries.
Finally, numerous decisions have been criticised and sparked demonstrations.[17][18][21]
| Year | Case | Unofficial name | Synopsis | Legal principles set | Consequences |
|---|---|---|---|---|---|
| Human dignity | |||||
| 1993 | 2 BvF 2/90[22] | (None) | Federal lawmakers permitted abortion within twelve weeks after implantation. To be legal the expectant mother had to go to a pregnancy consultation minimum three days in advance and the abortion has to be their own decision. |
|
Following the decision the lawmakers changed the criminal law. They prohibited abortion within twelve weeks but after using a pregnancy consultation all participants go unpunished. |
| 2003 | 1 BvR 426/02[23] | Benetton II | The Federal Court of Justice prohibited the magazine Stern to publish a shocking advertisement of the Benetton Group. The advertisement showed a bare bottom with a stamp: "HIV-positive". |
|
The case was remanded to the Federal Court of Justice for a second time. After Benetton II the plaintiff abandoned the lawsuit. A final decision was unnecessary. |
| 2006 | 1 BvR 357/05[24] | Civil aviation security act decision | Federal lawmakers permitted the military to shoot down civil aeroplanes if there is an indication that they will be used as a weapon against human lives and a shoot-down is the last resort. |
|
The disputed part of the civil aviation security act was declared void. Basically, the court decided that a shoot-down could be legal if a flight vehicle is unmanned or there are only suspects on board. |
| Protection of fundamental rights | |||||
| 1957 | 1 BvR 253/56[25] | Elfes-Decision (Elfes-Urteil) | Wilhelm Elfes, a left-wing member of the centre-right CDU, was accused of working against the constitution but was never convicted. Based on this indictment he was denied a passport multiple times.[26] Elfes litigated against the decision. |
|
Elfes lost his specific case but the court cemented personal liberty in general. Justice Heck defined the limits of the court relative to the specialised court system. |
| 1958 | 1 BvR 400/51[27] | Lüth Decision (Lüth-Urteil) | The court of Hamburg prohibited Erich Lüth to call for a boycott of the film Immortal Beloved. Lüth justified his action because director Veit Harlan also was responsible for the antisemitic movie Jud Süß in 1940. |
|
With the Lüth Decision the court defined and restricted its own power. But on the other hand, it expanded the effective range of the Basic Law beyond the tension of government and people to the private law. The Basic Law does not bind citizens but it binds the lawmakers in creating private law and the judiciary in interpreting it. |
| 2021 |
1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20[28] |
(Klimaschutz) | In 2019 the German federal government implemented the Climate Protection Act, to transpose the Paris Agreement into German law. It defined CO2-reduction goals for 2030 but did not describe how to reach the 1.5°C/2°C limitation beyond that year. The German branch of Fridays for Future litigated against the law because it would put an undue burden to their freedom and the freedom of the generations to come. |
|
The court instructed the federal government to implement the law in a way that does not put most of the effort needed to reach the goals of the Paris Agreement to future generations. Personal liberty is not to be interpreted in a way that restricts the personal liberty of future generations inappropriately. |
| Development of fundamental rights by the court | |||||
| 1983 |
|
Census Verdict (Volkszählungsurteil) | Citizens litigated against the German census 1983 |
|
The census was postponed to 1987 until the "census 1983 act" was changed corresponding to the verdict. The court created, by deriving from human dignity and personal liberty, a new civil right: informational self-determination. The verdict became the foundation of the modern German Data Protection Act (1990) and the EU Data Protection Directive (1998). |
| Freedom of expression | |||||
| 2000 | 1 BvR 1762/95 & 1 BvR 1787/95[30] | Benetton I | The Federal Court of Justice prohibited the magazine Stern to publish shocking advertisements of the Benetton Group. The advertisements showed a bird doused with oil, child labour and a bare buttock with a stamp: "HIV-positive". |
|
The case was remanded to the Federal Court of Justice whose new decision was challenged again as "Benetton II". |
| Freedom of art | |||||
| 1971 | 1 BvR 435/68[31] | Mephisto judgment (Mephisto-Entscheidung) | The heir of Gustaf Gründgens successfully sued the publisher of the 1936 novel Mephisto by Gründgens' former brother-in-law Klaus Mann to stop publishing the book. It was prohibited by all lower courts. |
|
Due to a split decision the ban of the novel was upheld. It was the first decision of the court on the interpretation of freedom of art. Apart from the concrete decision, the court made clear that freedom of art cannot be limited by general laws. |
On 12 September 2012, the Court stated that the question of whether the ECB's decision to finance European constituent nations through the purchase of bonds on the secondary markets was ultra vires because it exceeded the limits established by the German act approving the ESM was to be examined.[32] This demonstrates how a citizen's group has the ability to affect the conduct of European institutions. On 7 February 2014, the Court made a preliminary announcement on the case, which was to be published in full on 18 March. In its ruling, the Court decided to leave judgment to the Court of Justice of the EU (CJEU).[32]
In this regard, the ruling of May 5, 2020, deemed an act of the EU and the Weiss Judgment of the Court of Justice "ultra vires", for having exceeded the powers granted by the Member States.[33] The EU decided to initiate infringement proceedings against Germany. In response to the notification, the German government provided the European Commission with satisfactory assurances. As a result, the case was closed in December 2021.
- Art. 79 s. III
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