Bundesverfassungsgericht

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Constitutional complaints

Any person may lodge a constitutional complaint to assert their fundamental rights vis-à-vis the state. However, the constitutional complaint is separate from the appeals process before the ordinary courts; it is an extraordinary legal remedy that only examines whether specific constitutional law has been violated. Art. 93(1) no. 4a and b of the Basic Law and §§ 90 et seq. of the Federal Constitutional Court Act set out further details.

We have compiled important information on constitutional complaints, in particular on the requirements that must be met when lodging a constitutional complaint, in an information sheet.

Constitutional complaints are the most common type of proceedings decided by the Federal Constitutional Court by far; they receive a “BvR” file reference. When the Court began its work in 1951, fewer than 500 constitutional complaints were lodged every year. Until 1980, this number rose to 3,107 proceedings. Today, the Court receives approximately 6,000 constitutional complaints every year.

Constitutional complaints lodged by individuals

A constitutional complaint may be lodged by any natural or legal person claiming that their fundamental rights (Art. 1 to Art. 19 of the Basic Law) or certain rights that are equivalent to fundamental rights (Art. 20(4), Art. 33, Art. 38, Art. 101, Art. 103 or Art. 104 of the Basic Law) have been violated by an act of German public authority.

Example

The district authorities revoke a taxi company’s concession. After unsuccessfully objecting, the owner of the company first brings an action before the administrative courts and subsequently lodges a constitutional complaint. The Federal Constitutional Court reviews whether the relevant statutory provisions of the Carriage of Passengers Act and their application are compatible with the company owner’s occupational freedom (Art. 12(1) of the Basic Law).

Requirements

Sovereign acts of all three German state powers, i.e. the judiciary, the executive and the legislature, may be challenged with a constitutional complaint (for the special case of constitutional complaints against legislation see here). The Federal Constitutional Court examines whether the challenged acts were based on laws that are compatible with the Constitution and whether the complainants’ fundamental rights were respected in the application of these laws. Thus, if a constitutional complaint challenges errors in the application of a law that do not have any bearing on fundamental rights, the constitutional complaint will not be successful.

Complainants must be individually, presently and directly affected.

Complainants do not have to, but may choose to, be represented by a lawyer. If an oral hearing takes place, legal representation is mandatory.

The reasons substantiating a constitutional complaint are subject to strict requirements. They must be submitted in writing. They may be submitted by fax but not by email.

Constitutional complaints against judicial and administrative decisions must be lodged within one month of the issuing of the challenged decision. Within this period, the complainant must submit a fully reasoned application, including all required documents.

Generally, the constitutional complaint is only admissible if all legal remedies before the ordinary courts have been exhausted. Moreover, all other available possibilities to remedy or prevent the challenged violation of the Constitution must have been used (subsidiarity of the constitutional complaint). It follows from these principles that, as a general rule, all remedies available before the ordinary courts (e.g. appeals on points of fact and law, appeals on points of law, immediate complaints, complaints on points of law, complaints against denial of leave to appeal) must have been unsuccessful before the constitutional complaint can be lodged. If a violation of the right to be heard (Art. 103(1) of the Basic Law) is challenged, such remedies may also include complaints against such a violation. Please refer to the information sheet for details.

The proceedings are free of charge. Legal aid can only be granted if complainants cannot adequately assert their rights themselves, if they are unable to cover the cost of hiring a lawyer, and if the constitutional complaint has sufficient prospects of success.

Proceedings and decision

A constitutional complaint is subject to admission for decision. However, this does not mean that admission is at the discretion of the Court. The Federal Constitutional Court must admit the constitutional complaint for decision if it has general constitutional significance, or if its admission appears necessary in order to enforce the complainant’s own rights under the Constitution. Therefore, each decision not to admit a complaint for decision is preceded by thorough legal analysis.

If the Court decides not to admit a constitutional complaint, the complainant is provided with the text of this decision along with an information sheet about concluded constitutional complaint proceedings.

The Federal Constitutional Court may declare an act of public authority unconstitutional, reverse an unconstitutional court decision and remand the matter to a competent court, as well as declare a law void. It falls to the ordinary courts to render subsequent decisions where necessary – the Federal Constitutional Court does not award damages or order law enforcement measures.

Special case: constitutional complaints against legislation

In exceptional cases, statutes, ordinances or by-laws may be challenged with a constitutional complaint. In general, however, legislation can only be challenged if it has been executed through decisions made by public authorities or courts; persons affected by such decisions must first exhaust all legal remedies before the competent courts. In such cases, a constitutional complaint is generally only admissible once the court of last instance has issued a decision.

The legislation in question must affect the complainant personally, presently and directly. As a general rule, the complainant is personally and presently affected if it is likely that the legislation affects the complainant’s fundamental rights. The complainant is directly affected if the challenged legislation does not require an act of execution.

In exceptional cases, the constitutional complaint may be directed against legislation which has not yet been executed, e.g. if legal recourse is not possible or if it would be unreasonable to expect the complainant to have recourse to the courts. This is often the case in criminal law or in the law relating to administrative offences, as no one can be expected to first commit a criminal or administrative offence in order to then assert the unconstitutionality of the legislation in question before an ordinary court.

Special case: constitutional complaints lodged by municipalities

The Federal Constitutional Court also decides on constitutional complaints lodged by municipalities and municipal associations claiming that their right to self-government has been violated by a law.

Constitutional complaints lodged by municipalities are special in that municipalities and municipal associations themselves are vested with public authority. Thus, they are in principle bound by fundamental rights but are not themselves holders of fundamental rights. However, they have the right to self-government (Art. 28(2) of the Basic Law), which makes their position vis-à-vis the state similar to that of fundamental rights holders. The ability of municipalities to lodge constitutional complaints reflects this need for legal protection.

Example: Autonomous municipalities challenge an ordinance by the Land that makes them members of administrative collectivities against their will.

Constitutional complaints lodged by municipalities have several special features (cf. § 91 of the Federal Constitutional Court Act). Municipalities and municipal associations cannot claim a violation of fundamental rights or of rights equivalent to fundamental rights; they can only claim that a legal provision violates their right to self-government (Art. 28(2) of the Basic Law). Municipalities cannot lodge a constitutional complaint before the Federal Constitutional Court if a similar complaint can be lodged before the Constitutional Court of their respective Land. Thus, the Federal Constitutional Court merely has a “back-up competence” for protecting the guarantee of local self-government.