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Federal law helps to describe what the court can do, and how it works. Article 20.3 of the Grundgesetz says that each the three branches of the government – the parliament, the ministers and the courts – can only do what the constitution allows. The court can decide that acts of all three branches are not allowed by the constitution and prevent them from happening.
There are different reasons the court may find something unconstitutional:
- Formal violations (breaking the rules)
- Doing something not allowed by the constitution
- Not properly doing something allowed "violating procedures"
- Material conflicts (ignoring one part of the constitution)
- Doing something which is allowed, but ignoring a different part of the constitution, such as ignoring the civil rights guaranteed in the Grundgesetz. For example, the federal government must protect the security of Germany and its citizens. To do this it gave the air force the power to shoot down hijacked aircraft. The Bundesverfassungsgericht stopped the law because the right to life was more important.
Decisions of the court on material conflicts are applied through a federal law by the Federal Constitutional Court Act (BVerfGG).
The court only hear certain cases:
- Anyone can complain to the court that their constitutional rights were violated. They have been some of the most important decisions the court has made. Some important laws have been overturned, especially about taxes.
- Abstract Regulation Control
- Some other government bodies, for example the Bundesländer, can ask the court to declare any federal law unconstitutional. The laws legalizing abortion were twice declared unconstitutional by the Constitutional Court.
- Concrete Regulation Control
- Any ordinary court considering a case can stop the case and ask the Federal Constitutional Court if the law is constitutional. If it is then the ordinary court can carry on hearing the case.
- Federal Dispute
- Federal bodies, including members of the Bundestag, may bring disputes over powers and procedures before the court.
- State-Federal Dispute
- The Länder can ask the court to decide if they or the federal government have the right to do something, or if something is being done in the right way.
- Investigation Committee Control
- The Bundestag's Committees of investigation, individual members of the Bundestag, or the federal government can ask the court to decide on the committee's powers and procedures.
- Federal Election Scrutiny
- Any government body or involved voter can ask the court to investigate if a federal election was properly run.
- Impeachment Procedure
- If the Bundestag, the Bundesrat or the federal government think that the President or a judge or member of one of the Federal Supreme Courts has broken the constitution or a federal law, the Bundesverfassungsgericht decides if they should be removed from office.
- Only the Constitutional Court has the power to ban a political party. This has only happened twice, both times in the 1950s: the Sozialistische Reichspartei (SRP), was a neo-nazi party. It was banned in 1952. The Communist Party of Germany (KPD) was banned in 1956. In 2003 the third case to ban a party failed. The court found out that many of the officials of the extreme right-wing National Democratic Party (NPD) were actually controlled by the German secret services. The court decided not to carry on hearing the case.
The court has 16 judges. They are divided into two groups, called senates, of eight judges. The chairman of one senate is also the President of the Court ("Chief Justice"). The chairman of the other senate is the vice president. Most cases are heard by a "chamber" which is three members of one senate. All three judges of the chamber must agree on a decision. A chamber has to use precedent (past rulings). If a chamber thinks a precedent should be changed they have to let the case be decided by the Senate as a whole. Similarly, if a Senate thinks a precedent set by the other Senate should be changed precedent of the must ask the "Plenum" (a meeting of all 16 judges).
Decisions by a Senate need an absolute majority of 5 votes (in some cases a two-thirds majority is required, that is, 6 out of 8 votes). The BVerfGG decides which type of cases a senate hears.
Election of judges
The judges have a 12-year term, but they must retire when reaching the age of 68. A judge must be at least 40 years old and must be a well-trained jurist. Three out of eight members of each Senate must have been a judge of a Federal Supreme Court. Of the other five members of each Senate, most judges have been a professor of law at a university, a public servant or a lawyer.
At the end of their term, most judges retire from public life. One notable exception was Roman Herzog, who was elected Federal President in 1994, shortly before the end of his term as President of the Court.
- Law on the Federal Constitutional Court (Gesetz über das Bundesverfassungsgericht)(BVerfGG) 12 March 1951 (BGBl I p. 243) amended on 11 August 1993 (BGBl I p. 1473), and on 16 July 1998 (BGBl I p. 1823)
- BVerfGG Article 13.8a
- BVerfGG Article 13.2
- www.bundesverfassungsgericht.de, the Court's website
- Federal Constitutional Court Act (BVerfGG) in German
- Federal Constitutional Court Act (BVerfGG) in English