Federal Constitutional Court

Federal Constitutional Court, in Germany, special court for the review of judicial and administrative decisions and legislation to determine whether they are in accord with the Basic Law (constitution) of the country. Although all German courts are empowered to review the constitutionality of governmental action within their jurisdiction, the Federal Constitutional Court is the only court that may declare statutes unconstitutional under the Basic Law; the Länder (states) have their own constitutional courts. The Federal Constitutional Court was enshrined in the German constitution adopted after World War II and reflects lessons learned from the Nazi era (1933–45), when the power of the federal government was unchecked. Although there was some limited precedent for judicial review in German constitutional history, the far-reaching jurisdiction of the Federal Constitutional Court was influenced primarily by the model of the Supreme Court of the United States and the Austrian Constitutional Court. The court, which began sittings in 1951, is headquartered in Karlsruhe, Baden-Württemberg.

The Federal Constitutional Court has two separate panels (senates) of 8 judges each (originally 12), and each panel has jurisdiction over distinct areas of constitutional law. Judges serve a single, nonrenewable 12-year term (service, however, may not extend past the retirement age of 68). Half the membership is elected by the Bundesrat (the upper house of the German legislature), the other half by a special committee of the Bundestag (the lower house). To be elected, a judge must secure a two-thirds majority of votes cast; this rule has generally prevented any party or coalition from determining the court’s composition.

The court’s workload of some 5,000 cases annually is quite heavy in comparison with the U.S. Supreme Court, which hears several hundred cases each year. The Federal Constitutional Court is not an appeals court; rather, it is a trial court with first and final competence. Its decisions are binding on state and federal legislatures and on all other courts. Any individual claiming an infringement of his basic rights may bring a constitutional complaint. In any case in which there is doubt as to the constitutionality of a law, lower courts must stay the proceedings and submit a question to the Federal Constitutional Court. Unlike the U.S. Supreme Court, the Federal Constitutional Court exercises what is termed abstract judicial review; under this jurisdiction the federal or a state government or one-third of the members of the Bundestag may petition the court on the constitutionality of a statute, even before the statute has taken effect. The Federal Constitutional Court is also empowered to decide whether a political party is pursuing aims and using methods that conflict with the democratic order; in cases where the court rules that a party is in violation of the constitution, it will order the party’s dissolution. The court settles disputes between the states and the federal government and serves as a court for impeachment of the president and judges. Most of the cases heard by the court are constitutional complaints by individuals, a form of action that is free of court costs and does not require counsel.

The Federal Constitutional Court has come to occupy a focal position in the German governmental system. Although it initially steered clear of controversial issues, it was frequently embroiled in controversy in the late 20th century (over such issues as abortion and the deployment of German troops abroad), which prompted critics to claim that it lacked proper judicial restraint.