Bundesverfassungsgericht

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Abstract judicial review of statutes

Applications for the abstract judicial review of statutes can only be lodged by a limited group of applicants. In these proceedings, the constitutionality of a statute is reviewed in consideration of all relevant aspects, independent of a specific legal dispute and regardless of whether the applicant is affected. The proceedings are governed by Art. 93(1) no. 2 and no. 2a of the Basic Law and §§ 76 et seq. of the Federal Constitutional Court Act.

Proceedings of this type have a “BvF” file reference. In general, only very few applications for the abstract judicial review of statutes are lodged every year, yet almost all of these proceedings are of great significance.

Examples

Recent abstract judicial review proceedings include the proceedings relating to the State Treaty on the ZDF broadcasting corporation and the proceedings concerning the Aviation Security Act. Earlier proceedings include the proceedings concerning abortion, conscientious objection, fiscal equalisation among the Länder and the Civil Partnership Act.

Requirements

Only the Federal Government, a Land Government or one quarter of the members of the Bundestag can file an application for the abstract judicial review of statutes. Individuals do not have legal ability to file applications for this type of proceedings. The application is neither subject to a time limit, nor is a violation of applicants’ own rights required.

In abstract judicial review proceedings, any statute enacted under federal or Land law can be reviewed as to its compatibility with the Basic Law; statutes under Land law may also be reviewed as to their compatibility with other federal law. The Federal Constitutional Court reviews the challenged statute comprehensively; it is not limited to the challenges made by the applicant. In most cases, the applicants consider the statute to be unconstitutional and request that the Federal Constitutional Court declare it void. However, it is also possible that the applicant considers a statute to be valid and brings proceedings because another state agency did not apply the statute on the grounds that it believed it to be unconstitutional or incompatible with other federal law (“judicial confirmation of statutes”).

The Federal Constitutional Court also reviews whether the delimitation of competences in the context of concurrent legislative powers (Art. 72(2) and Art. 74 of the Basic Law) was respected. The Bundesrat, Land governments or Land parliaments have legal ability to file applications. Only federal laws enacted by Parliament may be subject to such a review. These applications are also not subject to a time limit.

Decision

If the application is unfounded, the statute is declared compatible with the Basic Law (or with other federal law where applicable). If the application is well-founded, the Federal Constitutional Court declares the statute void or incompatible with the Basic Law.