All proceedings begin with a written application lodged with the Federal Constitutional Court. Which of the two Senates is competent to decide the case depends on the type of proceedings or – in the case of abstract and specific judicial review proceedings and constitutional complaints – it follows from the field of law that is relevant to the case and from the provisions of the Basic Law that have allegedly been violated.
Applications are either entered directly into the Register of Proceedings or into the General Register; the latter applies if, for instance, a constitutional complaint is clearly inadmissible or, based on the case-law of the Federal Constitutional Court, clearly has no prospect of success.
If their application is entered into the General Register, the complainants may be informed in writing of the reasons why the application probably has no prospect of success. If they nevertheless insist on a judicial decision, their constitutional complaint is transferred to the Register of Proceedings; otherwise, the proceedings terminate.
In the Senate or in the Chamber, the case is assigned to a Justice as reporting Justice in accordance with the Court’s internal allocation of jurisdiction. The reporting Justice drafts a written opinion – the “Votum” or “bench memorandum“ – in which he or she sets out the case, analyses it from a legal point of view, and suggests a decision. Normally, the reporting Justice is assisted by his or her judicial clerks.
Most decisions by the Court are taken in the Chambers, which each consist of three Justices of one Senate. A Chamber may refuse to admit a constitutional complaint for decision without stating reasons. If, however, the constitutional complaint is clearly well-founded, the Chamber itself may grant the relief sought if the relevant constitutional issues have already been decided in the case-law of one of the Senates.
The Chamber’s decision is based on written proceedings and must be unanimous. If the three members of the Chamber do not reach an agreement, the Senate decides the matter, sitting with all eight Justices. Only the Senate can declare a formally enacted statute void or incompatible with the Basic Law.
The Federal Constitutional Court may give all parties to the proceedings and all parties entitled to submit statements, especially the federal and Land constitutional organs, the opportunity to submit statements, and it may obtain statements from expert third parties. If Senate proceedings are dealt with in an oral hearing, the case is discussed in open court with the parties to the proceedings and expert third parties.
The Senate deliberates on every decision extensively and in camera. A first round of deliberations on the basis of the written opinion and all relevant supporting material paves the way for the reporting Justice’s drafting of the decision.
In the case of a constitutional complaint, a simple majority is necessary to find that the Constitution has been violated. Since each Senate is composed of eight Justices, a tied vote is possible. In this case, the presiding Justice does not have the casting vote; without a majority, there can be no finding of a violation of the Constitution.
The members of a Senate who do not agree with a majority decision can present their differing views in a separate opinion which is signed by its author or authors, attached to the decision, and published along with it.
If there was an oral hearing, the Senate’s judgment is publicly pronounced in the courtroom. Unlike the oral hearing itself, this may be broadcast on television or radio. All Senate decisions without an oral hearing as well as those of the Chambers are issued as court orders and sent to the parties to the case in writing.
All Senate decisions and important Chamber decisions are published on the Court’s website and, like most court decisions in Germany, in Juris, the national online database of legal material. In many cases, the Federal Constitutional Court’s Press Office will issue a press release. Senate decisions are also published as books (Decisions of the Federal Constitutional Court – BVerfGE). Any ruling that declares a statute void must be published by the Federal Ministry of Justice in the Federal Law Gazette (§ 31 BVerfGG).