Only the Federal Constitutional Court is competent to decide on the constitutionality of laws. If a regular court considers a law the validity of which is material to its decision to be unconstitutional, it suspends the proceedings and refers the matter to the Federal Constitutional Court for decision. This type of proceedings is therefore also called referral from a court. It is regulated in Art. 100 (1) of the Basic Law and in §§ 80 et seq. of the Federal Constitutional Court Act. Every year, the Federal Constitutional Court receives about 100 cases of this type. They can be recognised by their “BvL” file reference.
An administrative Court deems the tuition fees provided for in a Land Act to be unconstitutional and refers the actions brought against the fee notifications to the Federal Constitutional Court. The Federal Constitutional Court only decides on the constitutionality of the provisions submitted. Afterwards, the administrative Court completes the proceedings, taking into account the Federal Constitutional Court’s decision.
Subject of the Proceedings
In every legal dispute, when applying the law the courts need to adhere to and interpret the Constitution. However, Art. 100 sec. 1 of the Basic Law vests the Federal Constitutional Court with the exclusive right to declare an Act of Parliament to be void. Regular courts must submit federal or Land laws on the validity of which their decision depends, and which they consider to be unconstitutional, to the Federal Constitutional Court for review. Apart from that, the Federal Constitutional Court has jurisdiction if a court considers a Land law to be incompatible with a federal law or other law. The regular courts, however, are competent to review non-parliamentary statutes (e.g. regulations) without referring them to the Federal Constitutional Court.
Permissible Applicants and Obligatory Referral
The proceedings begin with a referral by a regular court that considers a law on the constitutionality of which its decision depends to be unconstitutional. The parties to the initial proceedings are not entitled to file an application, and they cannot by a motion compel the court to make a referral.
All German courts are entitled to refer a matter to the Federal Constitutional Court. The referring court must always be convinced that the respective provision is unconstitutional, and that its decision depends on it. The court must give reasons for this conviction. The court refers the proceedings directly to the Federal Constitutional Court, i.e. without involving higher instances of appeal. The initial proceedings are suspended until the Federal Constitutional Court has decided.
Subject of the Decision
If the referral is well-founded, the legal provision in question is declared to be void, or incompatible with the Basic Law. Conversely, if a referral is admissible and the legal provision is compatible with the Basic Law, this is explicitly declared as well.