Bundesverfassungsgericht

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Effect of decisions

Decisions of the Federal Constitutional Court are binding upon the constitutional organs of the Federation and of the Länder, as well as upon all courts and public authorities (cf. § 31(1) of the Federal Constitutional Court Act). This binding effect typically relates to the matter decided in a specific case.

Certain decisions of the Federal Constitutional Court, in particular decisions concerning the constitutionality of legislation, have the force of law (§ 31(2) of the Federal Constitutional Court Act); they therefore apply beyond the individual case. These decisions are published in the Federal Law Gazette.

If a law is unconstitutional, the Federal Constitutional Court typically declares it void. A declaration of voidness also applies retroactively and has the same legal effect as if the law had never been enacted. In certain cases, the Federal Constitutional Court merely declares a provision incompatible with the Basic Law and determines a date after which it may no longer be applied. In particular, this is done if the legislator has different options to remedy the violation of the Constitution, or if the disadvantages that result from the law immediately ceasing to have effect outweigh the disadvantages associated with its preliminary continued application. This often applies to tax laws, given that the statutory basis for levying a tax would otherwise be completely or partially set aside. In the transitional period, the legislator can enact a provision that is compatible with constitutional law. In rare cases, the Federal Constitutional Court itself determines transitional arrangements.

Apart from any decisions challenged in the specific proceedings, decisions based on legislation that has become void remain unaffected (cf. § 79(2) of the Federal Constitutional Court Act). Decisions which can no longer be appealed remain effective but may no longer be executed. Given the serious consequences they entail, this does not apply to criminal proceedings: if a criminal judgment is based on legislation that is void or incompatible with the Basic Law, the proceedings can be reopened even after the judgment has become final.