Source: US Global Legal Monitor
On September 28, 2021, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) will celebrate its 70th anniversary. The Basic Law (Grundgesetz, GG)—Germany’s constitution—entered into force on May 24, 1949, and established a single federal constitutional court with constitutional review power. (Basic Law, arts. 92, 93.) The Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, BVerfGG) entered into force two years later on April 17, 1951. The court started hearing cases on September 7, 1951, and rendered its first decision on the territorial reorganization of the historical German states Baden, Württemberg-Baden, and Württemberg-Hohenzollern on September 9, 1951. The formal inauguration ceremony was held on September 28, 1951. Its seat is in Karlsruhe; the same city that the German Federal Court of Justice (Bundesgerichtshof, BGH)—Germany’s supreme court for civil and criminal cases—is located.
Building of the Federal Constitutional Court. © Bundesverfassungsgericht. foto USW. Uwe Stohrer, Freiburg. Used with permission.
The delegates at the Constitutional Convention at Herrenchiemsee, which met from August 10 to August 23, 1948, to draft a constitution for West Germany, debated the question of whether constitutional review jurisdiction should be exercised by a supreme court, being the court of highest instance that forms part of the federal judiciary, or whether it should be exercised by a freestanding constitutional court. However, they could not reach an agreement on that question and therefore explicitly left it open to be answered by the Parliamentary Council. The Parliamentary Council, after extensive discussions that spanned several months, agreed on separating the supreme court from the constitutional court and adopted the “Austrian model.” With regard to the jurisdiction of the court, section 93 of the Basic Law states:
The Federal Constitutional Court shall rule:
1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;
2. in the event of disagreements or doubts concerning the formal or substantive compatibility of federal law or Land law with this Basic Law or the compatibility of Land law with other federal law on application of the Federal Government, of a Land government or of one fourth of the Members of the Bundestag;
2a. in the event of disagreements as to whether a law meets the conditions set out in paragraph (2) of Article 72, on application of the Bundesrat or of the government or legislature of a Land;
3. in the event of disagreements concerning the rights and duties of the Federation and the Länder, especially in the execution of federal law by the Länder and in the exercise of federal oversight;
4. on other disputes involving public law between the Federation and the Länder, between different Länder or within a Land, unless there is recourse to another court;
4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103 or 104 [of the Basic Law] has been infringed by public authority;
4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 [of the Basic Law] has been infringed by a law; in the case of infringement by a Land law, however, only if the law cannot be challenged in the constitutional court of the Land;
4c. on constitutional complaints filed by associations concerning their non-recognition as political parties for an election to the Bundestag;
5. in the other instances provided for in this Basic Law.
Decisions are binding upon the constitutional bodies of the German Federation and of the German states, as well as upon all courts and public authorities. (Federal Constitutional Court Act, § 31, para. 1.) Certain decisions, in particular those concerning the constitutionality of legislation, have the force of law. (Id. § 31, para. 2.) Decisions that have the force of law are published in the Federal Law Gazette.
Selection of Judges
The Federal Constitutional Court is composed of two chambers, called senates. Each senate consists of eight justices. (BVerfGG, § 2.) In general, a candidate must be at least 40 years of age, be eligible for election to the German parliament (Bundestag), and must have stated in writing that he or she is willing to become a member of the Federal Constitutional Court. (BVerfGG, § 3.) Furthermore, each justice must have completed a legal education which qualifies him or her for judicial office pursuant to the German Judiciary Act (Deutsches Richtergesetz, DRiG).
The German Basic Law states that half of the members are elected by the Bundestag (parliament) and half by the Bundesrat (representation of the German states). (Basic Law, art. 94.) They may not be members of the Bundestag, the Bundesrat, the federal government, or of any of the corresponding bodies of a German state. Three positions in each senate are reserved for judges who have previously served on a German supreme federal court for at least three years.
Unlike in the United States, the nomination of a new justice does not make the news. The justices who are chosen by the Bundestag are elected without prior debate by secret ballot upon a proposal of an electoral committee which is formed specifically for this purpose. The electoral committee is composed of 12 members of the Bundestag who are chosen from a list of candidates proposed by the parliamentary groups. To be elected, a justice must obtain a two thirds majority of the votes cast and at least a majority among the members of the Bundestag. (BVerfGG, § 6.) The members of the electoral committee are sworn to confidentiality and are not allowed to reveal the candidates’ personal circumstances, which become known to them as a result of their work in the committee, or the committee’s discussions on this issue and the casting of votes. (BVerfGG, §6, para. 4.) The justices who are chosen by the Bundesrat are also elected by a two-thirds majority. Unlike the Bundestag, the Bundesrat does not form an electoral committee. (BVerfGG, § 7.)
Once a justice is elected, he or she will be appointed by the federal president for a term of 12 years. (BVerfGG, § 4, para.1; § 10.) Justices may not be reelected and retire after their term is up or when they reach retirement age (67 years), whichever is earlier. (DRiG, § 48.)
Robes worn by the justices of the German Federal Constitutional Court. © Bundesverfassungsgericht. foto USW. Uwe Stohrer, Freiburg. Used with permission.
The Federal Constitutional Court offers a lot of English-language information on its website, including English translations of important decisions and videos detailing its work, history, and landmark decisions.
The Law Library of Congress holds numerous materials on German law in general, including commentaries on the German Basic Law and the Federal Constitutional Court Act, as well as the decisions of the Federal Constitutional Court.