The Federal Constitutional Court (BVerfG)

Constitutional Status

The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) is the supreme guardian of the German Constitution (Basic Law, Grundgesetz, GG). Established in 1951 and located in Karlsruhe, the BVerfG is both a constitutional organ (Verfassungsorgan) and a court. Its status as a constitutional organ places it on an equal footing with the Bundestag, Bundesrat, Federal Government, and Federal President. The court’s powers, composition, and procedures are governed by Articles 93-94 GG and the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, BVerfGG).

Composition and Election of Justices

The BVerfG consists of two Senates (Senate), each with eight justices. The First Senate (Erster Senat) primarily hears disputes concerning fundamental rights (constitutional complaints) and normative review of legislation affecting fundamental rights. The Second Senate (Zweiter Senat) primarily hears disputes concerning state organisation (organ disputes, federal-state conflicts, and abstract normative review of legislation concerning institutional questions).

Election of justices under Article 94(1) GG and Sections 2-10 BVerfGG is shared equally between the Bundestag and the Bundesrat. The Bundestag elects justices through a twelve-member electoral committee (Wahlmannerausschuss), which selects candidates by a two-thirds majority. The Bundesrat elects justices directly by a two-thirds majority of its members. This supermajority requirement ensures cross-party consensus and judicial independence. Justices are elected for a single, non-renewable twelve-year term or until reaching the retirement age of 68, whichever comes first. Justices must be at least 40 years old, qualified for judicial office, and at least three of the eight justices in each Senate must have served as judges at a federal supreme court.

The President (Prasident) and Vice-President (Vizeprasident) of the BVerfG are elected alternately by the Bundestag and Bundesrat, each serving as presiding justice of one Senate. The President presides over the Second Senate and has the tie-breaking vote; the Vice-President presides over the First Senate. The current structure has maintained the two-Senate system with equal numbers since 1951.

Jurisdiction and Procedures

The BVerfG exercises enumerated jurisdiction — it may act only when specific constitutional procedures are invoked. The principal procedures are:

Constitutional complaint (Verfassungsbeschwerde): Any person claiming that public authority has violated their fundamental rights or equivalent constitutional rights may file a constitutional complaint (Article 93(1)(4a) GG, Sections 90-95 BVerfGG). The complaint must first exhaust all other legal remedies (subsidiarity). The BVerfG must accept the complaint for decision; acceptance requires that the complaint raise a fundamental constitutional question or that non-acceptance would cause the complainant severe disadvantage. The vast majority of complaints (approximately 97 per cent) are rejected as inadmissible or unmeritorious.

Abstract normative review (abstrakte Normenkontrolle): The Federal Government, a Land government, or one-quarter of Bundestag members may request the BVerfG to review a federal or Land statute for compatibility with the Basic Law (Article 93(1)(2) GG, Sections 76-79 BVerfGG).

Concrete normative review (konkrete Normenkontrolle, Richtervorlage): Any German court that considers a statute whose validity is relevant to its decision to be unconstitutional must refer the question to the BVerfG (Article 100(1) GG, Sections 80-82 BVerfGG). The Richtervorlage is a mandatory procedure — courts have no discretion to disregard a constitutional doubt. The referral must specify the provision in question, the constitutional provision allegedly violated, and the reasons for the court’s doubt. The BVerfG decides only the constitutional question and remits the case to the referring court for application.

Organ dispute (Organstreit): The highest federal organs — the President, Bundestag, Bundesrat, Federal Government, and their components — may bring disputes concerning their rights and duties under the Basic Law (Article 93(1)(1) GG).

Federal-state disputes (Bund-Lander-Streit): Disputes between the Federation and a Land, or between Lander, concerning their constitutional rights and duties (Article 93(1)(3) GG).

Party prohibition (Parteiverbot): The BVerfG may declare a political party unconstitutional and order its dissolution (Article 21(2) GG, Section 43 BVerfGG). This power has been exercised only twice — against the Socialist Reich Party (SRP) in 1952 and the Communist Party of Germany (KPD) in 1956.

Decision Types and Binding Effect

The BVerfG may issue judgments (Urteile) and orders (Beschlusse). Judgments are issued after an oral hearing in the principal procedures; orders are issued in chambers or without oral hearing. Decisions are adopted by majority vote; dissenting opinions (Sondervoten) have been permitted since 1970 (Section 30(2) BVerfGG) and are published with the decision.

Binding effect (Bindungswirkung) under Section 31(1) BVerfGG provides that the court’s decisions bind all constitutional organs of the Federation and the Lander, as well as all courts and authorities. Section 31(2) BVerfGG provides that decisions under abstract and concrete normative review have the force of statute (Gesetzeskraft): the reasoning and operative provisions are published in the Federal Law Gazette and are binding erga omnes.

The BVerfG may declare a statute void (nichtig), compatible with the Basic Law (vereinbar), or incompatible (unvereinbar). A void declaration nullifies the statute ex tunc; the legislature must enact replacement legislation. An incompatibility declaration does not immediately nullify the statute but requires the legislature to remedy the unconstitutionality; the statute remains applicable during a transitional period. The BVerfG may also issue appellate decisions (Appellentscheidungen), calling on the legislature to improve a statute that is still constitutional but deficient.

The Richtervorlage in Practice

The concrete normative review (Richtervorlage) is the most significant link between the ordinary courts and the BVerfG. Article 100(1) GG requires any German court — civil, criminal, administrative, labour, social, or finance — to refer a statute to the BVerfG if the court is convinced that the statute is unconstitutional. The court must have a “concrete” doubt; mere uncertainty does not suffice. The statute must be “relevant to the decision” (entscheidungserheblich): the court would decide differently if the statute were valid or invalid.

The Richtervorlage procedure serves several functions: it ensures that only the BVerfG has the power to declare a statute unconstitutional, maintaining the unity of the constitutional order; it provides a mechanism for individual protection against unconstitutional legislation through the ordinary courts; and it enables the BVerfG to develop constitutional doctrine in concrete factual contexts. The BVerfG receives approximately 200-300 Richtervorlagen annually, predominantly in tax, social security, and family law matters.

The Plenary Session (Plenum)

The Plenum of the BVerfG consists of all sixteen justices. Its principal function is to resolve disagreements between the two Senates (Section 16 BVerfGG). If one Senate intends to depart from the legal position adopted in an earlier decision of the other Senate, the matter must be referred to the Plenum for decision. The Plenum also decides on the allocation of business between the Senates and elects the President and Vice-President. Plenum decisions require a two-thirds majority. The Plenum meets rarely but has issued landmark decisions, including the 1973 decision on the obligation to refer cases to the BVerfG and the 2016 decision on the constitutional limits of European integration (Europaische Integration).