Bundesverfassungsgericht

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Specific judicial review of statutes

The Federal Constitutional Court is the only organ that is competent to decide on the constitutionality of statutes. If an ordinary court considers a statute to be unconstitutional and its decision in a specific case depends on this statute, it suspends the proceedings and refers the matter to the Federal Constitutional Court for decision. That is why this type of proceedings is also known as referral from a court. It is governed by Art. 100(1) of the Basic Law and §§ 80 et seq. of the Federal Constitutional Court Act. The Federal Constitutional Court receives up to 100 cases of this type annually. They have the file reference “BvL”.

Example

An administrative court considers the tuition fees provided for in a Land law to be unconstitutional and refers the actions brought against the tuition fee notices to the Federal Constitutional Court. The Federal Constitutional Court only decides on the constitutionality of the submitted provisions. After the decision, the administrative court concludes the proceedings, having regard to the decision rendered by the Federal Constitutional Court.

Subject of the proceedings

In legal disputes, the courts must adhere to and interpret the Constitution when applying the law. Under Art. 100(1) of the Basic Law, the Federal Constitutional Court has the power to declare an act of Parliament void. Ordinary courts must submit federal or Land laws to the Federal Constitutional Court for review if their decision depends on the validity of these laws and the ordinary courts consider them to be unconstitutional. In addition, the Federal Constitutional Court is competent to decide when a court considers a Land law to be incompatible with a federal law or other law. It falls to the ordinary courts to review non-parliamentary provisions (e.g. ordinances); these do not have to be referred to the Federal Constitutional Court.

Legal ability and obligation to make a referral

If an ordinary court considers a statute to be unconstitutional and its decision in a specific case depends on this statute, it must refer the matter to the Federal Constitutional Court. The parties to the initial proceedings cannot make such a referral, nor can they compel the court to do so.

All German courts can refer a matter to the Federal Constitutional Court. The referring court must be satisfied that the provision at issue is unconstitutional and its decision must depend on that provision. It must give reasons. The court refers the matter directly to the Federal Constitutional Court without involving higher-instance courts. The initial proceedings are suspended until the Federal Constitutional Court has rendered its decision.

Decision

If the referral is well-founded, the legal provision in question is declared void or incompatible with the Basic Law. If the referral is admissible yet unfounded, the Court declares that the legal provision is compatible with the Basic Law.