Bundesverfassungsgericht

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Allocation of competences

The allocation of competences serves to ensure the guarantee of one's lawful judge (Art. 101(1) second sentence of the Basic Law). It serves to divide cases between the two Senates and assign them to a Justice as reporting Justice. In addition, it determines the number and composition of the Chambers.

Legal framework in § 14 of the Federal Constitutional Court Act

In contrast to ordinary courts, the competences of the two Senates of the Federal Constitutional Court are in principle laid down in the law (cf. § 14(1) to (3) of the Federal Constitutional Court Act). This is because the Court is a twin court, with the Justices being directly elected to one of the two Senates. According to the legislative concept, the First Senate primarily deals with fundamental rights, while the Second Senate is mainly a "court for state matters". If it is unclear which Senate is competent for specific proceedings, a committee consisting of the President, the Vice-President and four Justices decides (so-called Committee of Six, cf. § 14(5) of the Federal Constitutional Court Act).

Deviations from the framework

Pursuant to § 14(4) of the Federal Constitutional Court Act, the Plenary of the Federal Constitutional Court can change the allocation of the competences of the Senates if this becomes imperative due to a work overload in one of the Senates that is not merely temporary. The Plenary of the Federal Constitutional Court regularly uses this option, given that the caseload of the First Senate, which is competent to decide constitutional complaints, would otherwise be considerably heavier than the caseload of the Second Senate.

The new allocation of competences takes effect at the beginning of the next judicial year and may also apply to pending proceedings subject to certain requirements. It is published in the Federal Law Gazette.

Order issued by the Plenary of the Federal Constitutional Court of 5 December 2023 pursuant to § 14(4) of the Federal Constitutional Court Act

Current allocation of competences between the Senates

At present, given the statutory framework and the Orders of the Plenary modifying it, the following allocation of competences generally applies:

The First Senate is competent for judicial review proceedings and constitutional complaints, unless the Second Senate is competent in the specific case.

The Second Senate is primarily competent for Organstreit proceedings, disputes between the Federation and the Länder, proceedings for the prohibition of political parties and electoral complaints. With regard to judicial review proceedings and constitutional complaints, the Second Senate is competent for specific areas of law; these include asylum law, the right of residence, nationality law, the law pertaining to the civil service, military service law and alternative civilian service law, material and procedural criminal law including the enforcement of measures for the deprivation of liberty, proceedings on administrative fines, income and church tax law and proceedings that mainly deal with the interpretation and application of international law.

At present, the Second Senate is also competent for judicial review proceedings and constitutional complaints dealing with the law on displaced persons from the territories of the former German Reich, the right of petition, the law on execution sales and compulsory enforcement, corporate tax law and law on the tax on corporate transformations, insolvency law, the law on home ownership and the law on contracts for work and labour and contracts for services.

Constitutional complaints dealing with private law matters are divided between the two Senates according to the respective area of law.

Allocation of competences within the Senates

The internal allocation of competences in the Senates determines who will be the reporting Justice in a given case and sets out the composition of the Chambers. Before the beginning of every judicial year, which is the same as the calendar year, each Senate decides which Justice is to act as reporting Justice for each case to be decided. During the judicial year, it is only possible to deviate from these arrangements if this is necessitated by a Justice’s work overload or a Justice’s inability to exercise their duties for a prolonged period of time. Generally, the reporting Justice prepares a comprehensive report for the proceedings. Moreover, before the beginning and for the duration of the judicial year, each Senate appoints several three-member Chambers and decides which Justices serve as substitute members. Within their competences, the Chambers decide on the cases that are assigned to one of their members as reporting Justice.