Strasbourg, 2
February 1998 Restricted
<s:\cdl\doc\(97)\cdl-ju\37.e> CDL-JU(97)37
Engl.
only
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
POWERS OF CONSTITUTIONAL COURTS OF FEDERATED ENTITIES
IN GERMANY
by Dr Günter PAUL,
Judge, Constitutional Court, Hessen, Germany
037-e_files/image001.gif)
"Workshop on the
Relationship of Central Constitutional Courts
and Constitutional Courts of Federated Entities"
Petrozavodsk, Russia, 22-24
September 1997
Introduction
Following the visit some of you
made a few months ago to the Constitutional Court in Hessen, Germany, I would never have expected
to get so soon the immense chance to return this visit. I am very happy to be
here and I am proud to have the opportunity to give you some explanations concerning our situation in Hessen and in Germany. It is a great honour to speak
to such an audience.
Some of the issues which are
the subject of my speech today have been discussed with those of you who
visited us in Wiesbaden a few months ago. But I think it may not be worthwhile,
although perhaps a little annoying for some, to repeat one or two arguments
from that earlier discussion.
In order to understand the
powers of Constitutional Courts of Federal Entities such as Hessen, you should
be aware of the following three issues:
I. Structure of the German Federal Republic
II. Structure of the court system within this federal structure
III. The
relationship between the Constitutional Law of the Federal Republic on one side
and the states (Länder) on the other
All these issues have been
dealt with in more detail by the President of the Berlin Constitutional Court,
Professor Dr. Finkelnburg, and by Dr. Christina Stresemann of the Federal
Constitutional Court. Consequently, I can be very brief and concentrate on a
few remarks which need to be repeated for the understanding of the second part
of my presentation.
In this second part of my
description of the power of Constitutional Courts of Federal Entities such as
Hessen, I shall present two additional issues:
IV. The structure of the Constitutional Court in Hessen
V. Competence of the Constitutional Court in Hessen and its
procedures.
I. Structure of the German Federal Republic
The German federal structure
differs from that of other federations such as the United States of America:
The basic principles of all the
German Constitutions of the Federal Republic as well as of the States (called “Länder”) are laid down in
Article 20 of the Federal Constitution (called “Basic Law”). After a
period of centralism, the Federal Republic of Germany has returned to the
principles of federalism. The country is divided into 16 states.
- Section 2
of Article 20 of the Basic Law contains the principle of representative
government through elections and separation of powers among the legislative,
executive and judicial branch of government.
- Section 3
of Article 20 stipulates that:
a) the Republic is governed by law. Therefore, it is called “Rechtsstaat”. This implies that all
legislation be subject to judicial review by courts, and also if necessary by a
Constitutional Court.
b) As far as
the administration is concerned, we could say:
The
primary “exercise” of governmental powers and the discharge of governmental
functions is incumbent on the Länder (Art. 30). They exercise original authority. It does
not derive from federal authority. The Federal Republic, therefore, is better
characterized as a centralistic state which grants some of its powers to the Länder.
The Constitution vests a broad
legislative power in the Federation. The consequence is clear: most of the law
executed by the Länder is federal
law. But their power is limited by the Federal Basic Law providing that Federal
law overrides State (Land) law
(Art. 31).
Since the principal areas of
legislation fall within the competence of the Federation, the main task for the
Länder is to implement and execute
this legislation. Here they play the most important role. The federal
government’s administrative powers over the Länder
at local level are rather limited.
To further the idea of decentralized
government, popular in Germany since the early 19th century, the
communes (local authorities) are guaranteed the right under the Basic Law to
regulate under their own responsibility all the affairs of the local community
(Art. 28).
Summary
Let me summarize these
principal ideas:
1. The law is made by the federal entity and by the Länder.
2. All
laws, even federal ones, are principally executed by the Länder.
3. To
limit the Länder’s powers granted by
this system Art. 31 of the Basic Law stipulates: “Federal law shall override Land law.”
4. This
principle includes the Constitutional Law of the Länder. Federal law consequently shall override also the
Constitutional Law of the Land. The
overriding Federal law is not limited to constitutional law. It can be any kind
of law. Even a very low level law made more or less only by the administration
on the basis of special power of attorney can override constitutional law of
the Länder.
You should bear these
principles in mind for a better understanding of the following issues.
II. Structure of the court system
The basis of the structure of
the German court system is Art. 19 of the federal Basic
Law. It provides in Section 4 that there must always be access to
the courts in case a private person should claim that public authority has
violated his rights. The provision states:
“Where rights are violated by public
authority the person affected shall have recourse to law.”
The Constitution vests judicial
power mainly in the courts of the Länder.
There is no dual judicial hierarchy.
The courts apply federal or
state law, whichever regulates the subject matter in issue. Only the courts of
last resort, i.e. the Federal Supreme Court and the Federal Constitutional
Court, are Federal Courts.
The German court system differs
from that of other federations, such as the United States of America:
1. All
trial and appellate courts are state courts. Only the courts of last resort are
federal.
2. All
courts may hear cases based on law enacted at the federal level.
3. The
federal courts only ensure the uniform application of national law by the state
courts.
4. There
are five court systems with specialized jurisdiction:
a) The
courts of general jurisdiction for civil and criminal cases,
b) Administrative
courts,
c) Labour
courts,
d) Social
security courts, and
e) Courts
for tax matters.
All courts have the power and
the obligation to review the constitutionality of government action and
legislation within their jurisdiction. But only the
- Federal
Constitutional Court (Bundesverfassungsgericht) in Karlsruhe or
- the Constitutional Courts of the Länder
may declare legislation
unconstitutional. Other courts must suspend proceedings if they find a statute
unconstitutional and must submit the question of constitutionality to the
relevant Constitutional Court of the Federal Republic of the Länder for its determination.
The establishment of the
Constitutional Courts in the Federal Republic as well as in the Länder is probably the most significant
change the fathers of the federal Basic Law and of the constitutions of the Länder introduced compared to previous
German constitutions. The establishment of these courts was clearly influenced
by Anglo-American ideas of constitutional review. In its scope, however, it
goes far beyond these models. The Constitutional Courts constitute the “Supreme
Guardian of the Constitution.”
III. Relationship of the Federal
Constitutional Law to the States’ Constitutional Law
The relationship between the
federal Constitutional Law and the Constitutional Law of the Länder has been discussed in detail by
Prof. Finkelnburg, the President of the Berlin Constitutional Court, and by
Dr. Christina Stresemann of the Federal Constitutional Court. For the
purpose of the subject matter I have to deal with, it could be very briefly
described as follows: “Federal law shall
override land law”. This is the wording of Art. 31
of the federal Basic Law. We will find the same ruling in Art. 153 para. 2 of the Constitution of
Hessen. Since the Constitution of Hessen is older than the federal Basic
Law the language says:
“Any federal law to come shall
override land law.”
This principle might even lead to the waiver by a Land of having a Constitutional Court of
its own (Art. 99 of the federal Basic Law). Hessen did not waive this
right. So consequently, I can speak about the power and function of the Supreme
Court of Hessen.
Each Land has its own elaborate constitution. It must conform to the
principles of republican, democratic and social government based on the rule of
law within the meaning of the federal Basic Law (Art. 28). Consequently,
each Land has an elected parliament,
a government, administrative agencies, and independent courts.
IV. Structure of the Constitutional Court in
Hessen
The Länder of the Federal Republic of Germany have not only their own constitutions and their own legislation but also
their own constitutional jurisdiction and their own Constitutional Courts.
There is only one exception: the Land
Schleswig-Holstein has assigned its jurisdiction for constitutional disputes to
the Federal Constitutional Court. This is legally possible according to Article
99 of the Federal Basic Law.
The constitutional courts of
the Länder have different names. In
Hessen the court’s name is Staatsgerichtshof
(State Court). In other States they are called Verfassungsgerichtshof or Verfassungsgericht
(Constitutional Court).
Like the Federal Constitutional
Court, the State Court of Hessen (as all the other Constitutional Courts of the
Länder) is the guardian of its own
constitution.
The constitutional court of
Hessen, the so-called State Court, is an independent court of justice like the
Federal constitutional court. The State Court functions separately from all
other constitutional organs. This means that the State Court is both a court
and a constitutional organ.
In relation to all other courts
it has a unique status. It has the final say on whether laws of Hessen or other
political acts are consistent with the constitution in Hessen. It can overrule
the decisions of any other court in Hessen if they do not pass this test of
constitutionality. And if the State Court's ruling affects the legality of Land laws, the decision will have the
force of law and be published in the Law Gazette of Hessen.
1. The
Constitutional Court in Hessen has its legal basis in the constitution of
Hessen (Art. 130 until Art. 133).
2. The
Constitutional Court in Hessen is made up of one panel only.
3. The
panel of the Constitutional Court of Hessen consists of eleven judges. They are
elected by the Parliament of Hessen.
4. All eleven judges have the same legal status, the same
rights and powers. Every decision of the State Court is worked out by all
eleven judges together. In the Constitutional Court of Hessen this means that
virtually all details of a decision and literally every word of a decision was
discussed among all the judges.
If
one of these judges should be unable to attend a court meeting, he will immediately be
replaced by another judge elected in advance by the parliament in order to
cover the eventual problem of absence.
Only a relatively small number
of cases come before the Land
constitutional courts. Therefore, the judges usually perform their duties in
addition to their other responsibilities. I myself – to give you an example –
am attorney-at-law and notary. But I am not a lay judge. Lay judges do not
exist in the State Court of Hessen.
V. Competence of the Constitutional Court in Hessen and its procedures.
Between the Federal Constitutional Court and the Constitutional Courts
of the Länder, competence is
separated with regard to the principles which represent the general grounds of
separation of powers between the Federal State and the Member States. Accordingly, the Federal Constitutional Court is empowered to decide in all
cases of federal constitutionality. This means the conformity with the Federal
Constitution, the so called Basic Law (“Grundgesetz”).
On the other hand, the Constitutional Courts of the Länder are empowered to decide cases of constitutionality in the
relevant State, called “Land”. This
means the conformity with the constitutions of the Land; e.g. the Constitution of Hessen.
Both procedures can be
simultaneous and parallel. The same regulation can be a matter for both
Constitutional Courts. But this does not happen often. Very rarely would the claimant address both
Constitutional Courts, the Federal and the State's Constitutional Court at the same time. But it is
theoretically and legally possible.
In that case, both of the courts
would have to coordinate their procedures. Should one of the courts have
already made its decision with erga omnes
effect, the other one should not rule against it.
Whatever the case may be, the prevailing court, however, would be the Federal Constitutional Court. As long as I have been judge in the Constitutional Court of Hessen, we
have never faced a conflict of this kind.
The provincial Constitutional Court is bound by the decision of
the Federal Constitutional Court in cases of Federal
constitutional law. The Federal Constitutional Court would be bound by the decision
of a Provincial Constitutional Court in cases of Provincial
constitutional law.
The Constitutional Court of
Hessen has competence to decide about:
1. the constitutionality of laws made by the Parliament or by
the Government of Hessen.
2. a dispute of government agencies about the interpretation
of the Constitutional Law of Hessen.
3. a complaint by individuals that their personal rights were
violated by public authorities (courts or governmental agencies).
Any citizen who believes that
his basic rights protected by the Constitution of Hessen have been violated by
public authorities may lodge a constitutional complaint with the State Court.
More than 90 per cent of all cases brought to the State Court are these kinds
of basic rights protection claims. More than 95 per cent of all these claims
are not successful.
Consequently, the power of the Constitutional Court is principally unlimited in
matters concerning:
- the law of the Länder
and/or
- an act of the government or one of the government
authorities or any other authority in this Land
(except a federal agency in such Land)
- an act or decision of all courts in the Länder (with the exception of some
federal courts in that Land).
On the other hand, the
competence of the Constitutional Court of Hessen or any other Land in Germany is limited to matters in which
they enjoy competence. There are disputes, however, as to whether or not
regional constitutional courts can decide on federal Law. This question could
arise in cases in which the application
of federal Law (not the Law itself) infringes the regional constitutional law.
In such cases, parties have mostly claimed that they have not been heard properly
by the court in accordance with the Law.
The Land constitutional courts are guardians of their respective
constitutions. Their principal task is to review Land laws as to their compatibility with the Land constitution.
The competence of the Constitutional Court in principle requires that one
of the institutions mentioned above has acted in conflict with the constitution
of the respective Land.
The Constitutional Court ‑ of the Land as well as of the Federal Republic ‑ will only accept
competence if the Constitutional Law is in question. They do not decide whether
another (lower) court has correctly applied the relevant law. The only question
of the court is whether this application is in accordance with the principal
rules of the constitution.
The Constitutional Court of
Hessen will never act on its own impetus. It needs a claimant party to start
the procedure. We once had a provision in our Constitution that could be
understood as if the court should act on more information about facts that
could lead to criminal procedures in order to protect the constitution. This
article of the Constitution in Hessen, is, however, no longer applicable. The
federal law about those procedures replaced it, following the rule
“Federal Law
overrides State Law.”
Summary
The powers of Constitutional
Courts of federated entities in Germany are limited.
1. First,
they are limited to ruling on the Constitution Law in their Land. they have no right to decide about the question whether the
act in question violates the federal Basic Law.
2. Second,
the power of Constitutional Courts of federated entities in Germany is limited to controlling the
acts of the government of a Land, its
government agencies or whatever public authority exists in that Land (with the
exception of the few federal agencies).
3. It
is still in dispute whether or not regional constitutional courts may decide
whether the application of a federal Law is in conflict with the State
Constitutional Law.
