Federal Constitutional Court

The Federal Constitutional Court (German: Bundesverfassungsgericht; abbreviated: BVerfG) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law (Grundgesetz) of Germany. Since its inception with the beginning of the 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.[2]

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 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]

50th Anniversary of the Bun­des­ver­fas­sungs­ge­richt (last coin in Deutsche Mark denomination)

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.[3] 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:

Up to 2009, the Constitutional Court had struck down more than 600 laws as unconstitutional.[4]

The court consists of two senates, each of which has eight members, headed by a senate's chairman. The members of each senate are allocated to three chambers for hearings in constitutional complaint and single regulation control cases. Each chamber consists of three judges, so each senate chairman is at the same time a member of two chambers. The court publishes decisions on its website and since 1996 a public relations department promotes selected decisions with press releases.[5]

Decisions by a senate require a majority. In some cases a two-thirds vote is required (§ 15 IV 1 BVerfGG). Decisions by a chamber need to be unanimous. A chamber is not authorized to overrule a standing precedent of the senate to which it belongs; such issues need to be submitted to the senate as a whole. Similarly, a senate may not overrule a standing precedent of the other senate, and such issues will be submitted to a plenary meeting of all 16 judges (the Plenum).

Unlike all other German courts, the court often publishes the vote count on its decisions (though only the final tally, not every judge's personal vote) and even allows its members to issue a dissenting opinion. This possibility, introduced only in 1971, is a remarkable deviation from German judicial tradition.

One of the two senate chairmen is also the president of the court, the other one being the vice president. The presidency alternates between the two senates, i.e. the successor of a president is always chosen from the other senate. The 10th and current president of the court is Stephan Harbarth.

The Constitutional Court is able to actively administer the law and ensure that political and bureaucratic decisions comply with the rights of the individual enshrined in the Basic Law. Specifically, it can vet the democratic and constitutional legitimacy of bills proposed by federal or state government, scrutinise decisions (such as those relating to taxation) by the administration, arbitrate disputes over the implementation of law between states and the federal government, and (most controversially) ban non-democratic political parties.[6] The Constitutional Court enjoys more public trust than the federal or state parliaments, which some say[weasel words] derives from the German enthusiasm for the rule of law.[7]

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. The selection of the chairman of each senate alternates between Bundestag and Bundesrat and also requires a two-thirds vote.

Until 2015 the Bundestag has delegated this task to a special committee (Richterwahlausschuss, judges election committee), consisting of a small number of Bundestag members. This procedure has 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 aspect, ruling that the Bundestag elects judges to the court by secret ballot in the plenum, requiring a candidate to get a two-thirds majority, that has to equal at least an absolute majority of members of the Bundestag. The Richterwahlausschuss now only has to nominate a candidate.[8] 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 elected for a 12-year term, but they must retire upon reaching the age of 68. A 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 an academic jurist at a university, as a public servant or as a lawyer. After ending their term, most judges withdraw themselves from public life. However, there are some prominent exceptions, most notably Roman Herzog, who was elected President of Germany in 1994, shortly before the end of his term as president 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 wasn't a member, with a two-thirds-majority. The same applies, if the office of vice president falls vacant. The given legislative body is free to elect the judge it prefers, but since 1983, it was always the sitting vice president, who was elected president.

As he or she is the highest ranking representative of the judicial branch of government, the president of the Federal Constitutional Court ranks 5th in the German order of precedence.

The court has been subject to criticism. One complaint is the perceived function as a replacement lawmaker (German: Ersatzgesetzgeber) due to it having toppled controversial policies numerous times, such as the Luftsicherheitsgesetz,[9] the de:Mietendeckel (rent cap) of Berlin,[10] and parts of the Ostpolitik.[11] This behavior has been interpreted as a hindrance to the normal functioning of the parliament.[11]

Another criticism of the federal constitutional court issued by the former president of the Federal Intelligence Service, Dr. August Hanning, is that the court tends to overprotect people, according to him, even members of ISIS.[12] This, in his opinion, hinders the efficiency of German intelligence agencies in favor of protecting people in far-away countries.

Finally, numerous decisions have been criticised and sparked demonstrations.[9][10][13]

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.[24] 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).[24]