Bundesverfassungsgericht

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Disputes between the Federation and the Länder

Disputes between the Federation and the Länder allow the Federation and the Länder to defend their competences within the federal system of government. They are governed by Art. 93(1) no. 3 of the Basic Law and §§ 68 et seq. of the Federal Constitutional Court Act and receive a “BvG” file reference. This type of proceedings is rarely used because most disputes concerning rights and obligations in the federal system are dealt with in judicial review proceedings; however, if such disputes do occur, they are often of fundamental importance.

Examples

Important decisions in disputes between the Federation and the Länder have concerned the obligation of the Länder to exercise their oversight of local authorities in accordance with federal legislation, the competence of the Länder to enact legislation on broadcasting services, the unconstitutionality of financial aid provided directly to municipalities by the Federation, the extent of the Federation’s right to issue instructions to the Länder in cases where they execute laws on federal commission, the rights of the Länder in matters of the European Communities and claims for compensation by the Federation if a Land violates European Community law.

Requirements

Disputes between the Federation and the Länder are similar to Organstreit proceedings. They are adversarial proceedings with the Federal Government on one side and the respective Land Government on the other. Other Länder may join the case of a Land that is a party to the proceedings.

In disputes between the Federation and the Länder, the Court only reviews the constitutional relationship between the Federation and the Länder. These proceedings often concern disagreements regarding legislative competences. Alternatively or in addition to this type of proceedings, the Federation and the Länder can bring proceedings for the abstract judicial review of statutes, in which the Federal Constitutional Court not only reviews whether the legislator has exceeded its competences, but also whether a statute is valid. Public law disputes which have no bearing on constitutional law are primarily decided by the ordinary courts.

In disputes between the Federation and the Länder, the applicant must assert that the respondent has directly violated or threatened to violate a right which the applicant holds under the federal system. A general claim that the respondent has violated constitutional law is not sufficient.

Where the Länder execute federal law in their own right (Art. 84 of the Basic Law), it falls primarily to the Bundesrat to decide on disagreements. Once the Bundesrat has made a decision, this decision may be challenged before the Federal Constitutional Court (Art. 84(4) of the Basic Law). In other cases, there is no such preliminary procedure.

The application must be filed within six months of the applicant obtaining knowledge of the 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 declares that the Basic Law has been violated without obliging the respondent to perform a specific act. However, the constitutional organs are obliged to consider the Federal Constitutional Court’s decision and to implement it where necessary (cf. Art. 20(3) of the Basic Law).


Special case: disputes between the Länder

An application can also be lodged with the Federal Constitutional Court when constitutional law disputes occur between the Länder. Such disputes mostly follow the same pattern as disputes between the Federation and the Länder. However, the Federal Constitutional Court’s competence to decide goes beyond its competence in disputes between the Federation and the Länder: in proceedings between Länder, which have a “BvH” file reference, the Court can oblige the respondent to perform or refrain from a certain act.