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.94(1) no.3 of the Basic Law and §§ 68 ff. 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. If such disputes do occur, however, they are often of fundamental importance.
Examples
Important decisions in disputes between the Federation and the Länder have dealt with questions such as the obligation of the Länder to exercise their oversight of local authorities in accordance with federal legislation, the legislative competence of the Länder for broadcasting services, the unconstitutionality of federal financial aid provided directly to municipalities, 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 concerning the European Communities, and claims for compensation by the Federation if a Land violates European Community law.
Prerequisites
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 cases often concern disagreements regarding legislative competences. Alternatively, or in addition to such 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. By contrast, 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 granted to the applicant in the federal system. A general claim that the respondent has violated constitutional law is not sufficient.
In cases where the Länder execute federal law in their own right (Art.84 of the Basic Law), it falls primarily to the Bundesrat to resolve disagreements. Only once the Bundesrat has made a decision can this decision 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 take specific action. However, the constitutional organs are required to observe 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
The Federal Constitutional Court also adjudicates disputes between the Länder relating to constitutional law. Such disputes for the most part follow the same pattern as disputes between the Federation and the Länder. That said, the Federal Constitutional Court’s decision-making powers go beyond its powers in disputes between the Federation and the Länder: in disputes between the Länder, which have a ‘BvH’ file reference, the Court can oblige the respondent to take or refrain from certain action.