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-WW2 republic, the court has been located in the city of Karlsruhe—intentionally distanced from the other federal institutions in Berlin (earlier in Bonn) and other cities.
The main task of the court is judicial review, and it may declare legislation unconstitutional, thus rendering them ineffective. In this respect, it is similar to other supreme courts with judicial review powers, yet the court possesses a number of additional powers, and is regarded as among the most interventionist and powerful national courts in the world. Unlike other supreme courts, the constitutional court is not an integral stage of the judicial or appeals process (aside from cases concerning constitutional or public international law), and does not serve as a regular appellate court from lower courts or the Federal Supreme Courts on any violation of federal laws.
The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institutions with the constitution. Constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz defined by the eternity clause.[note 1]
The court's practice of enormous constitutional control frequency on the one hand, and the continuity in judicial restraint and political revision on the other hand, have created a unique defender of the Grundgesetz since World War II and given it a significant role in Germany's modern democracy.
Article 20 Section 3 of the Basic Law stipulates that all three branches of the state (the legislature, executive, and judiciary) are bound directly by the constitution. As a result, the court can rule acts of any branches unconstitutional, whether as formal violations (exceeding powers or violating procedures) or as material conflicts (when the civil rights prescribed in the Grundgesetz are not respected).
The powers of the Federal Constitutional Court are defined in article 93 of the Grundgesetz. This constitutional norm is set out in a federal law, the Federal Constitutional Court Act (BVerfGG), which also defines how decisions of the court on material conflicts are put into force. The Constitutional Court has therefore several strictly defined procedures in which cases may be brought before it:
Up to 2009, the Constitutional Court had struck down more than 600 laws as unconstitutional.
The court consists of two senates, each of which has eight members, headed by a senate’s chairman. The members of each senate are allocated to three chambers for hearings in constitutional complaint and single regulation control cases. Each chamber consists of three judges, so each senate chairman is at the same time a member of two chambers.
Decisions by a senate require a majority. In some cases a two-thirds vote is required (§ 15 IV 1 BVerfGG). Decisions by a chamber need to be unanimous. A chamber is not authorized to overrule a standing precedent of the senate to which it belongs; such issues need to be submitted to the senate as a whole. Similarly, a senate may not overrule a standing precedent of the other senate, and such issues will be submitted to a plenary meeting of all 16 judges (the Plenum).
Unlike all other German courts, the court often publishes the vote count on its decisions (though only the final tally, not every judge's personal vote) and even allows its members to issue a dissenting opinion. This possibility, introduced only in 1971, is a remarkable deviation from German judicial tradition.
One of the two senate chairmen is also the president of the court, the other one being the vice-president. The presidency alternates between the two senates, i.e. the successor of a president is always chosen from the other senate. The current president of the court is Andreas Voßkuhle.
|“||[the] court is an important institution for the protection of minority interests||”|
The Constitutional Court is able to actively administer the law and ensure that political and bureaucratic decisions comply with the rights of the individual enshrined in the Basic Law. Specifically, it can vet the democratic and constitutional legitimacy of bills proposed by federal or state government, scrutinise decisions (such as those relating to taxation) by the administration, arbitrate disputes over the implementation of law between states and the federal government, and (most controversially) ban non-democratic political parties. The Constitutional Court enjoys more public trust than the federal or state parliaments, which some say derives from the German enthusiasm for the rule of law.
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, while the authority to select the court's president alternates between them. The selection of a judge requires a two-thirds vote.
Until 2015 the Bundestag has delegated this task to a special body (Richterwahlausschuss, judges election board), consisting of a small number of Bundestag members. This procedure has caused some constitutional concern and 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. 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.
|Name||Term||Nomination by||Election by|
|Ferdinand Kirchhof (born 1950)
(Vice-President of the Court, Chairman of the First Senate)
|Wilhelm Schluckebier (born 1949)
Josef Christ (born 1956) (elect)
|Michael Eichberger (born 1953)||4/2006–4/2018 (12-year-term)||CDU/CSU||Bundesrat|
|Gabriele Britz (born 1968)||2/2011–2/2023 (12-year term)||SPD||Bundesrat|
|Johannes Masing (born 1959)||4/2008–4/2020 (12-year term)||SPD||Bundesrat|
|Susanne Baer (born 1964)||2/2011–2/2023 (12-year term)||Alliance '90/The Greens||Bundestag|
|Yvonne Ott (born 1963)||11/2016–11/2028 (12-year-term)||SPD||Bundesrat|
|Andreas L. Paulus (born 1968)||03/2010–03/2022 (12-year term)||FDP||Bundestag|
|Andreas Voßkuhle (born 1963)
(President of the Court, Chairman of the Second Senate)
|5/2008–5/2020 (12-year term)||SPD||Bundesrat|
|Peter M. Huber (born 1959)||10/2010–10/2022 (12-year term)||CDU/CSU||Bundestag|
|Monika Hermanns (born 1959)||11/2010–11/2022 (12-year term)||SPD||Bundestag|
|Sibylle Kessal-Wulf (born 1958)||12/2011–12/2023 (12-year term)||CDU/CSU||Bundesrat|
|Peter Müller (born 1955)||12/2011–12/2023 (12-year term)||CDU/CSU||Bundesrat|
|Doris König (born 1957)||6/2014–6/2024 (12-year term)||SPD||Bundestag|
|Ulrich Maidowski (born 1958)||7/2014–7/2026 (12-year term)||SPD||Bundestag|
|Christine Langenfeld (born 1962)||7/2016–7/2028 (12-year term)||CDU/CSU||Bundesrat|
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. 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).