Bundesverfassungsgericht

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Disputes Between the Federation and the Laender

This type of proceedings gives the Federation and the Laender the opportunity to defend the competences they have under the federal system of government. The proceedings are regulated in Art. 93 (1) no. 3 of the Basic Law and in §§ 68 et seq. of the Federal Constitutional Court Act; file references for proceedings of this type begin with “BvG”. While this type of proceedings rarely occurs because most disputes concerning rights and obligations in the federal system are dealt with by way of abstract judicial review proceedings, they often are of fundamental importance.

Examples

Previous important decisions in dispute proceedings between the Federation and the Laender concerned the obligation of the Laender to intervene in favour of the Federation in the area of supervisory control over local authorities/municipal supervision, the legislative competence of the Laender for radio and television broadcasting, the unconstitutionality of direct financial aid to municipalities by the Federation, the extent of the Federation’s right to issue instructions to the Laender in cases in which they are acting as agents of the Federal Government, the rights of the Laender in matters of the European Communities and claims for compensation by the Federation if a Land violates Community law.

Requirements

Disputes between the Federation and the Laender are similar to Organstreit proceedings as they are also contentious proceedings with an applicant and a respondent. These particular proceedings oppose the Federal Government and the respective Land government. Other Laender may join the proceedings on the side of the Land that is party.

Only their relations under constitutional law are reviewed in disputes between the Federation and the Laender. These proceedings are often about differences of opinion concerning legislative competences. As an alternative to this type of proceedings or in addition to it, the Federation and the Laender may institute proceedings for the abstract judicial review of statutes, if they wish for the Federal Constitutional Court to not only review whether the legislature has exceeded its competences but also whether a statute is valid. Public-law disputes which do not concern constitutional law are primarily decided by the regular courts.

In disputes between the Federation and the Laender, the applicant must assert that a right to which the applicant is entitled under the federal system has been directly violated or threatened by the respondent. It is not sufficient to make a general claim that the respondent has infringed constitutional law.

In cases in which the Laender execute federal law in their own right (Art. 84 of the Basic Law) the Bundesrat shall be the first to decide differences of opinion. Only the decision of the Bundesrat may be challenged before the Federal Constitutional Court (Art. 84 (4) of the Basic Law). In other cases, there are no such preliminary proceedings.

The application must be filed within six months after the applicant has gained knowledge of the contested act or omission. A decision of the Bundesrat pursuant to Art. 84 (4) of the Basic Law must be challenged within one month.

Decision

The Federal Constitutional Court establishes a violation of the Basic Law without obliging the respondent to perform a specific act. However, the constitutional organs are obliged to consider the Federal Constitutional Court’s declaratory decision and to implement it if necessary (cf. Art. 20 (3) of the Basic Law).

Exceptional Case: Disputes Between Laender

The Federal Constitutional Court’s jurisdiction may also be invoked in case of constitutional-law disputes between the Laender. The course of such a dispute is largely analogous to that of a dispute between the Federation and the Laender. In these cases, however, the Federal Constitutional Court’s competence to decide goes beyond its competence in disputes between the Federation and the Laender: In proceedings between Laender, which have a “BvH” file reference, the Court may oblige the respondent to perform or omit an act.