The allocation of jurisdiction serves to ensure the guarantee of the lawful judge (Art. 101 sec. 1 sentence 2 of the Basic Law). On the one hand, proceedings must be distributed between the Court’s two Senates. On the other hand, within a Senate, they must be assigned to a Justice as reporting Justice; apart from that, the number and composition of the Chambers must be regulated.
Legal regulation in § 14 of the Federal Constitutional Court Act
Unlike for regular courts, the law basically provides for the competences of the Federal Constitutional Court’s two Senates (cf. § 14 sec. 1 to 3 of the Federal Constitutional Court Act). This has to do with the fact that the Court is a twin court, and with the fact that the members of the Court are directly elected to one of the two Senates. According to the legislature’s fundamental concept, the First Senate primarily dedicates itself to fundamental-rights issues, whereas the Second Senate is mainly conceived as a court for state matters. If it is unclear which Senate is competent for a particular case, the matter shall be decided by a committee consisting of the President, the Vice-President and four other members of the Court (so-called Committee of Six, cf. § 14 sec. 5 of the Federal Constitutional Court Act).
Pursuant to § 14 sec. 4 of the Federal Constitutional Court Act, the Plenary of the Federal Constitutional Court may, however, regulate the Senates’ competences in a different manner if this becomes imperative due to a not merely temporary work overload in one of the Senates. The Plenary of the Federal Constitutional Court regularly uses this possibility: especially because of its statutory competence for constitutional complaints, the First Senate’s caseload would otherwise be considerably heavier than that of the Second Senate.
The new assignment of competences takes effect from the beginning of the next judicial year, and – under certain preconditions – may also apply to pending proceedings. The decision is published in the Federal Law Gazette.
Present Allocation of Competences Between the Senates
At present, and as a consequence of the statutory provision and the orders of the Plenary that modify it, the following general allocation of competences applies:
The First Senate is competent for abstract and specific judicial review proceedings and constitutional complaints unless the Second Senate is competent in the specific case.
The Second Senate is essentially competent for Organstreit proceedings, disputes between the Federation and the Laender, proceedings concerning the prohibition of political parties, and electoral complaints. Concerning abstract and specific judicial review proceedings and constitutional complaints the Second Senate is competent for specific legal areas; these include asylum law, the Aliens Act, nationality law, public employment law, military service law and alternative civilian service law, criminal law and the law of criminal procedure including the implementation of measures of deprivation of liberty, administrative fining proceedings, income tax and church tax law (cf. A.I. of the order of the Plenary) and proceedings predominantly relating to international law (cf. A.VI. of the order of the Plenary).
At present, the Second Senate is also competent for judicial review proceedings and constitutional complaints dealing with the law on displaced persons, the right of petition, the law on execution sales and compulsory enforcement [translator’s note: of judgments and other executory titles], corporate tax law and tax law on corporate transformations, insolvency law and the law on home ownership as well as the law on contracts of employment and contracts for services (cf. A.II. of the order of the Plenary).
Constitutional complaints dealing with civil matters are divided between the two Senates according to legal areas (cf. A.III. of the order of the Plenary).
Allocation of Jurisdiction in the Senates
Internal allocation of jurisdiction in the Senates involves determining the reporting Justices and forming the Chambers. Before the beginning of each judicial year, which is the calendar year, each Senate decides on the allocation of the proceedings to the Justices as reporting Justices. During the judicial year, these fundamental decisions can only be deviated from if a Justice’s work overload or a Justice’s inability to exercise his or her duties for a prolonged period of time makes such a shift necessary. Generally, the reporting Justice is obliged to draft a written “Votum”, or “bench memorandum” for the individual proceedings. Moreover, before the beginning and for the duration of the judicial year, each Senate appoints several three-member Chambers and decides which Justices are to be substitute members. Within their competences, the Chambers decide on the proceedings that are assigned to one of their members as the reporting Justice.