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The Constitutional

Jurisprudence of
the Federal Republic
of Germany

The Constitutional
Jurisprudence of
the Federal Republic
of Germany
thir d e dition, r e v ise d a n d e x pa n de d

Donald P. Kommers and Russell A. Miller


With a New Foreword by Justice Ruth Bader Ginsburg

Duke University Press Durham and London 2012


2012 Duke University Press
All rights reserved.
Printed in the United States of America on acid-free paper
Designed by C. H. Westmoreland
Typeset in Arno Pro by Westchester Publishing Ser vices

Library of Congress Cataloging-in-Publication Data


Kommers, Donald P.
The constitutional jurisprudence of the Federal Republic of Germany / Donald P. Kommers
and Russell A. Miller. 3rd ed., rev. and expanded / foreword to the 3rd ed.
by Justice Ruth Bader Ginsberg.
p. cm.
Includes bibliographical references and index.
isbn 978- 0-8223-5248-8 (cloth : alk. paper) isbn 978- 0-8223-5266-2 (pbk. : alk. paper)
1. Constitutional law GermanyCases. 2. Judicial review GermanyCases.
I. Miller, Russell A., 1969 II. Ginsburg, Ruth Bader. III. Title.
KK4446.7.K66 2012
342.43dc23
2012011594

For Nancy
donald p. kommers

For Theresa, who gave me Germany


russell a. miller
Contents

foreword to the third edition: Justice Ruth Bader Ginsburg xi


preface to the third edition xiii
ac know ledg ments xvii
note on translation and judicial opinions xxi
abbreviations xxv


Part I German Constitutionalism
1. The Federal Constitutional Court 3
Origin 4
Jurisdiction 10
Institution 17
Process 25
Judicial Review in Operation 33
Conclusion 40
2. The Basic Law and Its Interpretation 42
New Constitutionalism of the Basic Law 43
Nature of the Polity 48
Theories of the Constitution 55
Theory of Basic Rights 59
Interpretive Modes and Techniques 62
Sources of Interpretation 70
Conclusion 75


Part II Constitutional Structures
and Relationships
3. Federalism 79
Territorial Organization 80
Doctrine of Federal Comity 90
Apportionment and Distribution of Revenue 95
Local Self-Government 104
Bundesrat, Reform Gridlock, and Modern Federalism 110
viii CONTENTS
Division of Legislative Power 120
Cooperative Federalism 138
Implementation of Federal Law 143
Conclusion 150
4. Separation of Powers 152
Executive-Legislative Relations 153
Judicial versus Legislative Authority 164
Delegation of Legislative Power 175
Foreign and Military Affairs 189
Conclusion 214
5. Political Representation and Democracy 216
Parliamentary Democracy 216
Elections and Voting 238
Party State and Political Spending 269
Militant Democracy 285
Conclusion 300
6. Jurisprudence of the Open State 302
Basic Law and International Law 302
Basic Law and European Law 325
Conclusion 352


Part III Basic Rights and Liberties
7. Human Dignity, Personal Liberty, and Equality 355
Dignity of Persons 356
Right to Life 373
Right to Personality 399
Equality 419
Conclusion 439
8. Freedom of Speech, Press, and Art 441
A Jurisprudence of Balancing 442
Reputational Interests and Offensive Speech 460
Resocialization, Privacy, Truth-Telling, and Assembly 479
Freedom of the Press and Broadcasting 502
Artistic and Academic Freedom 519
Conclusion 536
CONTENTS ix
9. Religion, Conscience, and Family Rights 538
Free Exercise of Religion 539
Minority Religions 553
Religious Practices and Symbols in Public Schools 566
Taxation, Autonomy, and Religious Societies 590
Marriage and Family Rights 600
Conclusion 620
10. Economic Liberties and the Social State 622
Nature of the Economic System 623
Right to Property 630
Occupational and Associational Rights 659
Reunification and Economic Liberties 685
Conclusion 711

appendix a: chronological chart of the justices 713


appendix b: biographical sketches of presidents
and vice presidents 717
notes 725
table of cases 833
index 847
permissions 871
Foreword to the Th ird Edition
ruth bader ginsburg
Associate Justice, Supreme Court of the United States

Exposing laws to judicial review for constitutionality was once uncommon outside of
the United States. But particularly in the years following World War II, many nations
installed constitutional review by courts as one safeguard against oppressive govern-
ment and stirred-up majorities. The Constitutional Court of the Federal Republic of
Germany has been recognized as a paradigm in this regard.1
Just as U.S. experience and decisions may be instructive to systems that have more
recently instituted or invigorated judicial review for constitutionality, so too can we
learn from others now engaged in measur ing ordinary laws and executive actions
against fundamental instruments of government and charters securing basic rights.
Wise parents do not hesitate to learn from their children, U.S. Circuit Judge Guido
Calabresi observed, noting as illustrative the fi rst edition of The Constitutional Juris-
prudence of the Federal Republic of Germany.2
A concrete example. I coauthored the Brief for the Appellant in Reed v. Reed, 404
U.S. 71 (1971), the fi rst case in which the U.S. Supreme Court, in all its long history,
ever declared a statute discriminating against women unconstitutional. Reed con-
cerned an Idaho statute that directed: As between persons equally entitled to admin-
ister a decedents estate, males must be preferred to females. The Idaho Supreme
Court had upheld the law against an equal protection challenge, reasoning that na-
ture itself had established the gender-based distinction and that the preference for
males conserved judicial resources. The Reed brief contrasted two decisions in which the
then West German Constitutional Court invalidated similar gender classifications.
The fi rst German decision, rendered in 1959, involved provisions of the German
Civil Code declaring if parents are unable to agree, father decides, and mandating
preference for the father as representative of the child.3 Holding both provisions in-
compatible with the constitutions equality norm, the German court rejected alleged
differences in lifestyles and administrative convenience as justifications for the dis-
criminatory classifications. The second decision, announced in 1963, involved prefer-
ences for sons over daughters in agrarian inheritance law. In that instance, the Ger-
man court held unconstitutional a classification resting on the assumption that men
are better equipped than women to manage property.

1. See Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law, 1st ed. (New York:
Foundation Press, 1999), 204.
2. United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring).
3. BVerfGE 10, 59 (1959).
xii For ewor d to the Thir d Edition
I did not expect our Supreme Court to mention the German decisions, but thought
they might have a positive psychological effect. Informed of the West German Con-
stitutional Courts reasoning, the U.S. justices might consider: How far behind can
we be? 4
I consulted foreign and comparative legal materials in my advocacy endeavors, as
the Reed brief illustrates, and I continue to do so as a judge. Foreign opinions, of
course, are not authoritative; they set no binding precedent for the U.S. judiciary. But
they can add to the store of knowledge relevant to the solution of trying questions.
No doubt, we should approach foreign legal materials with sensitivity to our dif-
ferences and imperfect understanding of the social, historical, political, and institu-
tional background from which foreign opinions emerge. But awareness of our limita-
tions should not dissuade us from learning what we can from the experience and
wisdom foreign sources may convey. In the endeavor to gain knowledge from the
problems confronted and resolutions reached by our counterparts abroad, the work
of Donald P. Kommers, now joined by Russell A. Miller, is a rich resource. Offering
far more than excellent English-language translations of the decisions of a renowned
tribunal, Professors Kommers and Miller supply incisive analyses and commentary.
I am pleased to herald the publication of this third edition of a masterful text.
In addition to thoroughgoing updating, the third edition contains considerable
new material and substantially recast sections. Entirely new, Chapter 6 deals with the
sometimes intricate relationship between German constitutional law, on the one
hand, and international and European law, on the other hand. Chapter 10, on social
and economic rights, includes important property and occupational rights cases aris-
ing out of Germanys reunification. For the fi rst time, Germanys equality jurispru-
dence, featured in Chapter 7, is treated independently. Of par ticu lar note, the authors
discuss the Basic Laws requirement that the state actively pursue the achievement of
gender equality through positive measures. The emphasis on substantive equality
reflects a trend vibrant abroad but not similarly embraced in the United States.
Federalism reforms made between 2003 and 2009 are described in Chapter 3.
Chapters 8 and 9 take up developments in recent years in Germanys free speech and
religious liberty jurisprudence. Finally, in sections of several chapters, the third edition
explores the Federal Constitutional Courts attempts to balance competing liberty and
security interests in the post9/11 world. Cases presented on this trying and vitally im-
portant topic contrast, sometimes strikingly, with current U.S. jurisprudence.
Brought right up to the moment by Professors Kommers and Miller, The Constitu-
tional Jurisprudence of the Federal Republic of Germany is an engaging, enlightening,
indispensable source for those seeking to learn from the text and context of German
constitutional jurisprudence.

4. A Conversation with Justice Ruth Bader Ginsburg, University of Kansas Law Review 53
(2005): 957, 961.
Preface to the Th ird Edition

The fi rst edition of this path-breaking book appeared in 1989, the year in which the
Federal Republic of Germany celebrated the fortieth anniversary of its constitution,
designated officially as the Basic Law (Grundgesetz). Adopted in 1949, the Basic Law
marked the beginning of a new German experiment in constitutional democracy. A
key feature of this experiment was the Basic Laws provision for the creation of a con-
stitutional court with vast powers of judicial review over legislative acts and other
governmental activities. Two years later, on 12 March 1951, in compliance with this
mandate, West Germanys fi rst governing coalition enacted the Federal Constitu-
tional Court Act (Bundesverfassungsgerichtsgesetz; hereafter referred to as the
fcca), authorizing the tribunals establishment and providing for the election of its
original members. From the moment of its inception, the Federal Constitutional
Court (Bundesverfassungsgericht) embraced a robust interpretation of the powers
granted to it by the Basic Law. Few realized at the time that the Constitutional Court
would play a vital role in shaping the politics and public philosophy of postwar Ger-
many. Fewer still anticipated the Courts evolution into one of the worlds most pow-
erful and influential tribunals, serving as a model, alongside the U.S. Supreme Court,
for other liberal democracies attracted by the prospect of placing fundamental law
under the protection of independent courts of justice.
The publication of this books fi rst edition coincided with comparative constitu-
tional laws emergence as a subject of serious scholarly inquiry. It was also a time
when constitutional courts created in the postWorld War II period were beginning
to seriously engage one anothers jurisprudence as an aid to the interpretation of
their respective constitutions. Already by 1980 Germanys Federal Constitutional
Court stood out as one of the most prominent of these postwar tribunals, not only for
the fertility of the ideas folded into its constitutional decisions but also for the appeal
of its jurisprudence beyond Germanys borders. But at the time few of the Courts
decisions were accessible in English. The fi rst edition sought to fi ll this gap. One of its
purposes was to bring the Constitutional Courts leading decisions to the attention
of English-speaking readers. The cases featured in translation were selected in part
for their relevance to prominent areas of constitutional adjudication in the United
States. The relevance seemed warranted by the similarities in the rights, values, and
institutions protected by two of the worlds most advanced constitutional democra-
cies. Yet, with their differing perspectives on liberty and democracyborn of dis-
tinct social, legal, and cultural historiesthe German cases provided a challenging
contrast to many of the views reflected in the decisions of the American Supreme
Court.
The fi rst edition exceeded all expectations. Not only was it hailed for the useful
role that German constitutional thought could bring to any fresh assessment of
xiv Pr eface to the Thir d Edition
American constitutional doctrine; it also helped to generate interest in the develop-
ing field of comparative constitutional law. Owing to the books enthusiastic recep-
tion in the United States and abroad, a second edition was published in 1997. While
adhering to the basic structure of the original volume, the second edition took into
account major constitutional developments arising out of Germanys reunification as
well as the new and groundbreaking cases handed down in the 1990s on freedom of
speech, religious freedom, voting rights, and the equality of women in the workplace.
It also featured more recent decisions relating to the domestic application of interna-
tional and European law and the deployment of German military forces abroad.
Shortly after the publication of the second edition, the Federal Constitutional
Court began publishing on its website English-language summaries and full transla-
tions of leading decisions in a wide variety of subject areas. By then, too, a large body
of commentary on various aspects of German constitutional law was available in
dozens of Anglo-American and other English-language journals and periodicals. For
these reasons, it seemed initially that there would be no need for a third edition. Yet,
despite the passage of time, Constitutional Jurisprudence continued to enjoy wide use
in classes and seminars on German and comparative constitutional law, just as it con-
tinued to be consulted by constitutional scholars and judges alike in the United
States and elsewhere. And so, encouraged by many friends and colleagues, and with
the fi rst-time collaboration of Russell Miller as coauthor, work started on a new, up-
dated edition. It was a long and arduous exercise. More than a decade of proliferating
constitutional decisions and commentary had to be taken into consideration, much
of it in the original German. Once again, the objective was the production of a single,
user-friendly volume that would explain the main principles of the Basic Law, de-
scribe the range and character of constitutional review in Germany, and feature lead-
ing judgments of the Federal Constitutional Court in selected areas of its jurispru-
dence. The cases treated in the third edition have been carefully selected with the
hope that they are worthy of reflective comparison with the analogous case law of
other advanced constitutional democracies.
That the third edition of Constitutional Jurisprudence should appear shortly after
the sixtieth anniversary of the Federal Constitutional Courts founding is a happy
coincidence. Th is edition has been greatly expanded and reorganized to account for
new developments in the jurisprudence of free speech, religious liberty, elections and
voting, international affairs, and executive-legislative relations in the sensitive areas
of foreign and military policy. Chapter 5 now includes an extended discussion of con-
stitutional cases and issues arising out of Germanys response to international terror-
ism since the 11 September 2001 terrorist attacks in the United States. Chapter 7 con-
tains fresh material on gender discrimination and affi rmative action in a new section
on equality. Similarly, recent cases on marriage and the family, including the rights
of homosexual and transsexual persons, are taken up in Chapter 9, which considers
religion and the rights of conscience. And, in the interest of greater coherence and
clarity, several cases included originally in the chapter on dignity and personal lib-
erty have been shifted to the chapter on freedom of speech. Finally, the chapter on
Pr eface to the Thir d Edition xv
economic rights now appears as the last instead of the fi rst chapter in Part III of this
book to reflect the sequence of the provisions on fundamental rights in the Basic Law.
Initially, in working on this edition, we planned two new chapters to focus respec-
tively on the constitutional law relevant to Germanys reunification and on the in-
creasingly prominent interplay in the Constitutional Courts jurisprudence between
the Basic Law, European law, and international law. German unity generated numer-
ous constitutional controversies related to electoral law, property rights, land reform,
pension law, disbarment proceedings, and the occupational rights of persons dis-
missed from the civil ser vice and other categories of employment. Each of these
controversies raised critical issues under several fundamental rights clauses of the
Basic Law, prompting the Court to reexamine some of its earlier rulings under these
provisions. To keep the book as a manageable single volume, however, we decided to
omit this chapter and limit our discussion of the Courts discrete reunification juris-
prudence to a concluding section of Chapter 10. We think the constitutional themes
and issues with which the Court grappled in relation to economic liberties and the
social state are representative of much of the rest of its reunification jurisprudence.
On the other hand, we felt that it was absolutely essential to include a new
chapterChapter 6 in this editionon the nexus between German constitutional
law and international law and European law. A central feature of the Basic Law is its
openness to participation in and constitutional engagement with supranational legal
orders such as the European Union and the Council of Europe. Article 23 of the Basic
Law, for example, commits Germany to the further development of the European
Union, just as other provisions permit the transfer of sovereign powers to interna-
tional organizations (Article 24) and incorporate into domestic law the general rules
of international law (Article 25). Several of the cases featured here reveal the Courts
struggle to respect the domestic constitutional order created by the Basic Law as well
as the Basic Laws commitment to internationalism. Needless to say, these interests
sometimes seem irreconcilable, perhaps most significantly when the Court has con-
sidered the force that decisions of supranational and international tribunals will have
in the German legal order. Of capital importance are the Courts Maastricht Treaty
and Lisbon Treaty cases. In both judgments, the Constitutional Court raised ques-
tions about the amending treaties compatibility with the essential and unamendable
features of Germanys constitutional democracy. Moreover, in Lisbon, the Court set
procedural and substantive limits on the further transfer of German sovereignty to
the European Union.
Finally, we have made two changes in the appendices. We thought it would be use-
ful in this edition to provide brief biographical sketches of all the presidents and vice
presidents who have been selected to preside over the Courts First and Second Sen-
ates, which are independent of each other and speak in the name of the German
people. These short biographies are revealing; they tell us much about the personali-
ties of the Courts presiding justices and the change in the pattern of their recruit-
ment over the years. Until 1987 the president and vice president served as the presiding
justices respectively of the First and Second Senates. In recent decades, however, this
xvi Pr eface to the Thir d Edition
practice has not held up. As the biographical sketches in Appendix B disclose, a presi-
dent or vice president may be elected to preside over the First or Second Senate.
Finally, we are dropping the appendix that included selected provisions of the Basic
Law. The relevant constitutional provisions at issue in our discussion of the Courts
decisions are now presented in the various chapters and are, in any case, easily avail-
able in English-language translations on the Internet. In par ticu lar, we have relied on
the official English-language version published by the German Bundestag. The most
recent version of this translation by Christian Tomuschat and Donald Kommers was
produced in cooperation with the Bundestags Language Ser vice Department. It is
available at https://www.btg-bestellservice.de/pdf/80201000.pdf.
Acknowledgments

Each of us used the second edition and early drafts of the third edition in our ad-
vanced seminars on German and comparative constitutional law. The response of
our studentsmainly doctoral candidates in political science, third-year law stu-
dents, and foreign law graduates pursuing ll.m. degrees in international human
rights lawhas been enthusiastic, reinforcing our determination to go forward with
this edition. Their critical engagement with the cases and issues featured in the vol-
ume helped us greatly to rethink certain aspects of its organization and analysis.
We have benefited tremendously from the help and advice of several legal schol-
ars, political scientists, and other academicians. For their generous assistance and
helpful comments on this and previous editions, we owe a special word of thanks to
Winfried Brugger, David Currie, and Walter Murphy. We regret that we will not be
able to share the fruits of this effort with these departed friends and colleagues. We
have relied on the advice and inspiration of other colleagues and peers, including
David Beatty, Armin von Bogdandy, Michael Bothe, Sujit Choudhry, David Danel-
ski, Erhard Denninger, Edward Eberle, Mary Ann Glendon, H. Patrick Glenn, Ran
Hirschl, Vicki Jackson, Alexandra Kemmerer, Pierre Legrand, Ralf Michaels, Chris-
toph Mllers, Vlad Perju, Peter Quint, Georg Ress, Kim Lane Scheppele, Bernhard
Schlink, Eberhard Schmidt-Assman, Miguel Schor, Anja Seibert-Fohr, Torsten Stein,
Klaus Stern, Christian Tomuschat, Mark Tushnet, Dieter Umbach, Uwe Wesel, In-
grid Wuerth, and Peer Zumbansen.
For their significant assistance we would also like to thank these former and sit-
ting justices of the Federal Constitutional Court: Susanne Baer, Ernst Benda, Brun-
Otto Bryde, Udo Di Fabio, Dieter Grimm, Renate Jaeger, Paul Kirchhof, Jutta Lim-
bach, Gertrude Lbbe-Wolff, Rudolf Mellinghoff, Lerke Osterloh, Andreas Paulus,
Helga Seibert, and Helmut Steinberger. We are also grateful to the Constitutional
Courts administrative directors Karl-Georg Zierlein (197398) and Elke-Luise
Barnstedt (19992010). They graciously coordinated our visits to the Court, helping
us secure access to the Courts justices, its library, its archives, statistical informa-
tion, and otherwise inaccessible decisional materials. Matching their generosity were
Volker Roth-Plettenberg (the Courts head librarian since 1992) and the Courts chief
of protocol Margret Bckel. We also received valuable assistance from so many of the
Courts clerks that we hesitate to single out any of them for fear that we will overlook
someone to whom we are no less grateful. Still, it would be an injustice to fail to men-
tion the helpful, patient, and inspiring clerks with whom we have had extensive con-
tact, especially Felix Hanschmann, Karen Kaiser, Stefan Magen, Nele Matz-Lck,
Felix Merth, Rainer Nickel, Anne Sanders, Heiko Sauer, and Christian Walter.
For reading and commenting on parts of the third edition, we wish to thank Ste-
fan Brink, Ulrike Bumke, Paolo Carozza, Edward Eberle, Thomas Flint, Richard
xviii Ac know ledg ments
Garnett, Rainer Grote, Arthur Gunlicks, Matthias Hartwig, Karen Kaiser, V. Brad-
ley Lewis, James McAdams, Rainer Nickel, Frank Schorkopf, Anja Seibert-Forh,
Christopher Whelan, Christopher Witteman, Ingrid Wuerth, Diana Zacharias, and
Peer Zumbansen.
Much of the work on this volume was carried out at Heidelbergs Max Planck In-
stitute of Comparative and International Public Law. We would like to thank the In-
stitutes current and former directorsRudolf Bernhardt, Armin von Bogdandy,
Karl Doehring, Jochen Abr. Frowein, and Rdiger Wolfrumfor their generosity in
providing us, at different times, with fi nancial support, office space, and ready access
to the Institutes splendid library and unsurpassed bibliographical resources. It is not
an exaggeration to say that this effort would not have been possible without the ca-
maraderie, kindness, hospitality, and stimulation that we have enjoyed while resident
at the Institute, one of the fi nest research settings in the world. We have especially
benefited from scholarly exchanges with the Institutes remarkable research staff and
frequent guests, including Jrgen Bast, Jochen von Bernstorff, Pia Carazo, Stephanie
Dagron, Philipp Dann, Sergio Dellavalle, Thomas Giegerich, Matthias Goldmann,
Rainer Grote, Alexandra Guhr, Michael Hahn, Matthias Hartwig, Holger Hester-
meyer, Mahulena Hofmann, Cristina Hoss, Daniel Klein, Steven Less, Emmanuelle
Mantlik, Nele Matz-Lck, Mariela Morales-Antoniazzi, Werner Morvay, Georg
Nolte, Karin Oellers-Frahm, Stefan Oeter, Dagmar Richter, Anja Seibert-Fohr, Silja
Vneky, Nicola Wenzel, Diana Zacharias, and Andreas Zimmerman.
Donald Kommers spent the spring semester of 2009 as the Axel Springer Berlin
Prize Fellow at the American Academy in Berlin where he continued to reflect and
write on aspects of German constitutional law and politics. For that support he is
grateful to Gary Smith, the Academys gracious and capable director. Russell Miller
was awarded a Fulbright Senior Research Fellowship in 200910. The fellowship per-
mitted him to work on this and other comparative law projects while in residence at
Heidelbergs Max Planck Institute. He is indebted to the Fulbright Commission for
that honor and generous support.
Both authors have been supported and enriched in this work by their home insti-
tutions. Russell Miller wishes to thank Deans Jack Miller and Donald Burnett of the
University of Idaho College of Law. Jack Miller has been especially supportive, as a
friend and mentor, during Russell Millers academic career. Russell Miller also
wishes to thank Deans Rodney Smolla, Mark Grunewald, and Nora Demleitner of
the Washington & Lee University Law School. They provided encouragement and
support. Russell Miller also received support for this work from the Washington &
Lee Frances Lewis Law Center and the Washington & Lee Transnational Law Insti-
tute, the latter of which is directed by his cherished colleague Mark Drumbl. Donald
Kommers is grateful to Deans David Link and Patricia OHara for all their kindness
during this books preparation. He also wishes to thank Roger Jacobs and Edward
Edmunds, Notre Dames head law librarians who spared no expense in procuring the
materials needed for this project. Other Notre Dame law librarians to whom he owes
thanks are Patti Ogden, Warren Rees, Dwight King, Carmela Kinslow, and Mary
Ac know ledg ments xix
Cowsert; for technical assistance in getting him out of computer glitches, he thanks
Dan Manier, Jeff Morgan, and Susan Good. As professor emeritus, he is particularly
grateful to Thomas Burish, University of Notre Dame Provost, for generously pro-
viding him with the logistical support needed for the completion of this project.
For student assistance we are grateful to Ariel Brio, Brian Burchett, Frank Co-
lucci, Melissa Brown, Michael Chambliss, Colin Littlefield, Peggy Fiebig, Jonas Cal-
lis, and Karolina Kurzawa. Matthias Schmidt came to our aide in the last years of our
work on this book and, to the very end, remained a reliable assistant, insightful
reader, and encouraging friend. For two years during our early work on the third edi-
tion we were assisted by Jeremy Rabideau, a Notre Dame doctoral candidate in po-
litical science. Jeremy competently and professionally dispatched a broad range of
indispensable assignments, including the writing of summaries for scores of the Con-
stitutional Courts decisions and of the developing research from English and Ger-
man language scholarship and literature. We are thankful for his role in this effort. For
secretarial assistance in the Notre Dame Law School we are grateful to Lu Ann Tate,
Tina Jankowski, Rebecca Ward, and the indomitable Debi McGuigan-Jones.
Not to be overlooked is the wonderful cooperation we have received from Duke
University Press. In particular, we would like to acknowledge the support of Dukes
senior editor, Valerie Millholland. We are especially thankful for her patience in
waiting longer than expected for the arrival of the third edition manuscript. For their
timely and efficient navigation of the manuscript through the stages of editing, de-
sign, and production we are most grateful to Miriam Angress, Nancy Hoagland, and
Debbie Masi.
Finally, we wish to thank Justice Ruth Bader Ginsburg of the U.S. Supreme Court
for graciously consenting to write the foreword to this edition.
Note on Translation and Judicial Opinions

Edmund Wilson once remarked that the best translationsthe Rubaiyat, for
exampleare those that depart most widely from the originalsthat is, if the trans-
lator himself is a poet. However sound such advice might be with respect to the
translation of novels and poems, it is normally bad advice when rendering foreign
legal documents into English. The judicial opinions featured in this volume are col-
legial in nature. They are institutional products often pounded out on the anvil of
negotiation and compromise. Personalized dissenting opinions on the Federal Con-
stitutional Court were not allowed until 1971 and since then, as now, they are rela-
tively rare. Less than 1 percent of the Courts published decisions have featured dis-
senting opinions. The deliberation and trade-offs that drive this penchant for consensus
lead to judicial opinions often marked by abstract, repetitious, and convoluted prose.
The job of the translator is to render such prose as much as possible into idiomatic
English and to produce approximate English equivalents to the legal and technical
terminology of the original German. Th is has been an arduous task for all the transla-
tors whose work contributed to the English-language case excerpts published in this
volume. The fi nal result, we trust, are translations that are both readable and faithful
representations of German constitutional thought.
As noted in the preface to this edition, English-language translations of excerpts
from the most noteworthy decisions of the Federal Constitutional Court are less rare
today than they were when the first edition was published. We, the authors, translated
several judgments featured in this edition; other translations were prepared for us by
Mark Hepner, Peggy Fiebig, Matthias Schmidt, Catriona Thomas, and Albert Wimmer.
But no one has done more to expand English-language access to the Courts juris-
prudence than Hedwig Weiland, the Constitutional Courts staff translator. She has
masterfully supervised the translation of scores of the Courts most important deci-
sions, sometimes on breathtakingly short notice. A number of these translations have
been reproduced here, often with extensive adaptation by us. These editorial changes
reflect the very different aims of her project and ours. While the Court strives to pro-
duce the most accurate translations of its decisions, we often have sought to strike the
all-too-elusive balance between faithfulness to the original German and literary grace.
Of course, the official decisions always remain the Courts published German-language
opinions. The Court has generously granted us the right to make use of its translations
in this book. And we have relied on other translations produced under Ms. Weilands
supervision to expedite and enrich our work. Th is collaboration has required us to cor-
respond frequently with her. She has consistently been a gracious and insightful inter-
locutor. We owe her much, but above all she has our enduring respect.
The opinions of the Federal Constitutional Court compete, in their length, with
those of the U.S. Supreme Court. Many of them exceed five thousand words. But
xxii Note on Tr anslation and Judicial Opinions
they follow a uniform structure. The typical opinion begins with a listing of the lead-
ing sentences (Leitstze) or propositions of law advanced in the judgment. The cap-
tion following the Leitstze identifies the senate deciding the case, along with the
date of the decision, the nature of the proceeding, and a short statement of the ruling
(Entscheidungsformel). Subsequently and sequentially, in major parts of the case,
the opinion proceeds to describe the factual background of the case, including the
parties in dispute, the constitutional issue or issues up for decision, and the statutes
or regulations requiring interpretation. It continues with a detailed presentation of
the arguments on both sides, fi rst on behalf of the petitioner, then on behalf of the
respondent. The opinion concludes with sections addressing the Courts jurisdiction
over the case and, fi nally, the Courts reasoning on the merits.
One practice in par ticu lar distinguishes German judicial decisions from those
handed down in common-law jurisdictions. German cases do not reveal the names
of the parties before the courts, a convention that also prevails at the Federal Consti-
tutional Court. Cases are cited by number, date, and jurisdictional category. An ex-
ample is the East German Disbarment Case (1995; no. 10.15) in which East German
lawyers fi led constitutional complaints contesting their disbarment following reuni-
fication. The case appears as Nr. 11 in Volume 93 at page 213 of the official reports
(Entscheidungen des Bundesverfassungsgerichts), cited as 93 BVerfGE 213 (1995).
The opinion begins with the caption, Judgment of the First Senate of 9 August 1995,
immediately followed by reference to 1 BvR 2263/94. The numbers refer to the
2,263rd constitutional complaint (the jurisdictional category) fi led with the First Sen-
ate in the year 1994. (The case was combined with the similar complaints of two
other lawyers.) The unnamed lawyer challenging the constitutionality of his disbar-
ment is described simply as the complainant. We found it convenient, however, to
label this case East German Disbarment to identify its subject matter. It is a common
practice among constitutional scholars to name a case by its main topic (e.g., Abor-
tion I Case), its institutional focus (e.g., Bundesrat Case), its documentary source (e.g.,
Lisbon Treaty Case), or by some other prominent feature such as the geographic loca-
tion of a major event (e.g., Lebach Case) or the name of the prominent public figure
involved (e.g., Princess Soraya Case or Princess Caroline of Monaco II Case).
The translations in this book are confi ned largely to selected passages from the
Courts reasoning, preceded by our bracketed summary of the facts of the case and
its procedural posture. The original opinions are lavish with citations to the Courts
existing decisions and to the secondary literature, including the Courts rehearsal of
the views advanced in academic treatises and commentaries on the Basic Law. With
rare exceptions we have omitted string citations to the Courts decisions and refer-
ences to the secondary literature. We have translated the terms Beschwerdefhrer
and Antragsteller variously as complainant, plaintiff, and petitioner. Complain-
ant refers to an entity ( juristic person or association) or natural person who fi les a
constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional
Court. All other proceedings before the Constitutional Court involve petitions or
referrals by legislators, other public officials, and governmental entities. A petitioner
Note on Tr anslation and Judicial Opinions xxiii
is an agency or official who initiates one of these proceedings. We often label the
plaintiff as the litigant before an ordinary court where the latter refers a constitu-
tional issue in the pending case to the Federal Constitutional Court in an action
known as a concrete judicial review proceeding. Other practices and conventions
followed by the Court in deciding constitutional cases are described in more detail
in Chapter 1.
Abbreviations

bgb Brgerliches Gesetzbuch (Civil Code)


bgb1 Bundesgesetzblatt (Federal Law Gazette [statutes at large])
bgh Bundesgerichtshof (Federal Court of Justice)
BGHSt Entscheidungen des Bundesgerichtshof in Strafsachen (Decisions of
the Federal Court of Justice in Criminal Matters)
bghz Entscheidungen des Bundesgerichtshof in Zivilsachen (Decisions of
the Federal Court of Justice in Civil Matters)
brd Bundesrepublik Deustschland (Federal Republic of Germany)
BVerfG Bundesverfassungsgericht (Federal Constitutional Court)
BVerfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of the
Federal Constitutional Court)
BVerfGG Bundesverfassungsgerichtsgesetz (Federal Constitutional Court Act
[FCCA])
BVerfGK Kammerentscheidungen des Bundesverfassungsgerichts (Chamber
Decisions of the Federal Constitutional Court)
cdu Christlich-Demokratische Union (Christian Democratic Union)
csu Christlich-Soziale Union (Christian Social Union)
DIN Deutsches Institute fr Normung (German Institute for
Standardization)
DSU Deutsche Soziale Union (German Social Union)
dkp Deutsche Kommunistische Partei (German Communist Party)
dm Deutsche Mark (German Mark)
DRiG Deutsches Richtergesetz (German Judiciary Act [GJA])
ealg Entschdigungs- und Ausgleichsleistungsgesetz (Compensation and
Equalization Payments Act)
ecthr European Court of Human Rights
EEC European Economic Community
EFSF European Financial Stability Facility
eu European Union
EuGRZ Europische Grundrechte-Zeitschrift (European Journal of Basic
Rights)
fap Freiheitliche Deutsche Arbeiterpartei (Free German Workers Party)
fdp Freie Demokratische Partei (Free Democratic Party)
xxvi Abbr eviations
gg Grundgesetz (Basic Law)
GO-BVerfG Geschftsordung des Bundesverfassungsgerichts (Rules of Proce-
dure of the Federal Constitutional Court)
jsc Judicial Selection Committee
kpd Kommunistische Partei Deutschlands (Communist Party of
Germany)
kug Kunsturheber-rechtsgesetz (Art Copyright Act)
nato North Atlantic Treaty Organization
nl National List
npd Nationaldemokratische Partei Deutschlands (National Democratic
Party)
pds Partei des Demokratischen Sozialismus (Party of Democratic
Socialism)
RGSt Entscheidungen des Reichsgerichts in Strafsachen (Decisions of the
[Reich] Imperial Court of Justice in Criminal Matters)
rgz Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the
[Reich] Imperial Court of Justice in Civil Matters)
sed Sozialistische Einheitspartei Deutschlands (Socialist Unity Part of
Germany)
spd Sozialdemokratische Partei Deutschlands (Social Democratic Party)
srp Sozialistische Reichspartei (Socialist Reich Party)
StGB Strafgesetzbuch (German Penal Code)
UN United Nations
weu Western European Union
Part I
German Constitutionalism

Germanys Basic Law (Grundgesetz) is one of the worlds most celebrated constitu-
tions. Adopted as a temporary charter to govern the western part of a divided nation
in 1949, it became the constitution of all Germany with the countrys unification in
1990. On 23 May 2009 Germans celebrated the Basic Laws sixtieth anniversary. Hav-
ing outlasted all of Germanys previous constitutions, it has taken on the character
of a charter ordained in perpetuity. One of its most significant innovations was the
creation of the Federal Constitutional Court (Bundesverfassungsgericht). With its
sweeping powers of judicial review this tribunal has developed into an institution of
major policy-making importance in the Federal Republic of Germany. Today it is
commonly acknowledged to be, along with the Supreme Court of the United States,
one of the worlds most influential constitutional courts. Judicial review is a relatively
new departure in German constitutional history. Postwar German leaders believed
that their traditional parliamentary and judicial institutions, such as those created
under the Weimar Constitution, were insufficient to safeguard the new liberal demo-
cratic order. So they created a national constitutional tribunal to serve as a guardian
of political democracy, to enforce a consistent reading of the constitution on all
branches and levels of government, and to protect the basic liberties of the German
people. The framers of the Basic Law had given up on the old positivist idea that law
and moralityand justiceare separate domains. Constitutional morality would
now govern both law and politics.
The two chapters of Part I furnish the backdrop to this books treatment of German
constitutional law and policy. It seems useful at the outset to introduce our readers to
the powers and organization of the Federal Constitutional Court and to set forth a
systematic account of the Basic Law and the principles governing its interpretation.
Accordingly, Chapter 1 describes the Federal Constitutional Courts origin, struc-
ture, powers, and decisional procedures, along with a discussion of judicial review
and its impact on German law and politics. It also includes an account of important
organizational and staff changes that have taken place over the course of the Courts
more than sixty years of operation.
Chapter 2 focuses on the main features of the Basic Law and the principles on
which they are grounded. It summarizes the nature of the German polity, emphasiz-
ing in particular its federal, democratic, and social character. In addition, it introduces
readers to the modes, processes, and sources of constitutional interpretation, along
with the theories of constitutionalism that inform the Courts visionsometimes
competing visionsof the Basic Law as a whole. Unlike previous German constitu-
tions, the Basic Law creates a judicially enforceable binding order of values. It also
2 Ger man Constitutionalism
creates what the Basic Law describes as the free democratic order in which indi-
vidual liberties, majority rule, responsible and competitive party government, sepa-
ration of powers, the constitutional state principle, and the observance by citizens of
certain principles of political obligation play a central role. The Constitutional
Courts function in Germanys juridical democracy is to defi ne, protect, and recon-
cile these various and often confl icting constitutional values. In performing this task,
as the cases featured in Parts II and III show, the Court has been a crucial player in
German constitutional politics.
1
The Federal Constitutional Court

The jurisdiction of the U.S. Supreme Court extends to cases and controversies aris-
ing under the constitution and federal law. Its authority reaches even to private law
when the parties in dispute are citizens of different states. By contrast, Germanys
Federal Constitutional Court (Bundesverfassungsgericht), as guardian of the consti-
tutional order, is a specialized tribunal empowered to decide only constitutional
questions and a limited set of public-law controversies. Thus, Germany ranks among
those civil-law countries with a centralized system of judicial review.1 The deeply in-
grained Continental belief that judicial review is a political act, following the as-
sumption that constitutional lawlike international lawis genuine political law,
in contrast, for example, to civil and criminal law,2 prompted Germans to vest the
power to declare laws unconstitutional in a special tribunal staffed with judges
elected by Parliament and widely representative of the political community rather
than in a multi-jurisdictional high court of justice dominated by appointed legal
technicians.
Another factor that encouraged the framers of West Germanys Constitution,
known as the Basic Law (Grundgesetz), to assign the function of constitutional judi-
cial review to a single court was the traditional structure of the German judiciary and
the unfamiliarity of its judges with constitutional adjudication. The German judi-
ciary includes separate hierarchies of administrative, labor, fiscal, and social courts,
while civil and criminal jurisdiction is vested in another, much larger, system of ordi-
nary courts.3 All trial and intermediate courts of appeal are state (Land) tribunals;
federal courts serve as courts of last resort. The federal courts, divided by subject
matter, are at the apex of their respective judicial hierarchies. These tribunals include
the Federal Court of Justice (Bundesgerichtshof) with jurisdiction over civil and
criminal matters, the Federal Administrative Court (Bundesverwaltungsgericht),
the Federal Finance Court (Bundesfi nanzhof), the Federal Labor Court (Bundesar-
beitsgericht), and the Federal Social Court (Bundessozialgericht). Like the appellate
courts generally, these tribunals are staffed by a host of judges (more than one hun-
dred on the Federal Court of Justice alone) who sit in panels of five. The complexity
of this structure and the lack of any tradition of stare decisis would have rendered an
American-style, decentralized system of judicial review, in which all courts may de-
clare laws unconstitutional, unworkable in Germany.
Judicial attitudes toward constitutional review also militated against a decentral-
ized system. The background and professional training of the 20,101 career judges (as
of 31 December 2008)4 who staff the German judiciary are unlikely to produce the
independence of mind typical of judges in the Anglo-American tradition. German
4 chapter one
judges usually enter the judiciary immediately after the conclusion of their legal train-
ing,5 and success is denoted by promotion within the ranks of the judicial bureau-
cracy. In contrast, most American judges are appointed at a later stage of their ca-
reers, usually after achieving success in public office or as private lawyers. German
judges have been characterized as seeking to clothe themselves in anonymity and to
insist that it is the court and not the judge who decides; moreover, the judicial task is
to apply the law as written and with exacting objectivity.6 Although this portrayal of
the typical German judge is less true today than it was fi ft y years ago, the conserva-
tive reputation and public distrust of the regular judiciary at the time the Basic Law
was created were sufficient to ensure that the power of judicial review would be con-
centrated in a single and independent tribunal.7

origin

German legal scholars have traditionally distinguished between constitutional review


(Verfassungsgerichtsbarkeit) and judicial review (richterliches Prfungsrecht). Judi-
cial review, the more inclusive term, signifies the authority of judges to rule on the
constitutionality of law. Constitutional review, which in Germany antedates judicial
review, is associated with Germanys tradition of monarchical constitutionalism,
stretching from the German Confederation of 1815 through the Constitution of 1867
(establishing the North German Confederation) and up to and including the Impe-
rial Constitution of 1871. During this period (18151918) when German constitutional
thought pivoted on the concepts of state and sovereignty,8 constitutional review pro-
vided the mechanism for defi ning the rights of sovereign states and their relationship
to the larger union into which they were incorporated. Judicial review, on the other
handa device for protecting individual rightsis associated with Germanys re-
publican tradition, beginning roughly with the abortive Frankfurt Constitution of
1849, continuing with the Weimar Constitution of 1919, and relaunched with the Basic
Law of 1949.

Constitutional Review. Constitutional review appeared in embryonic form during


the Holy Roman Empire. The need for unity among the principalities of the empire
and peace among their warring princes prompted Maximilian I in 1495 to create the
Imperial Chamber Court (Reichskammergericht), before which the German princes
resolved their differences. By the seventeenth century the Imperial Chamber Court
and some local courts occasionally enforced the constitutional rights of estates
against crown princes. Compacts or treaties governed their mutual rights and obliga-
tions. Constitutional review commenced when these tribunals enforcedto the ex-
tent that their rulings could be enforcedthe corporate rights of estates under these
documents.9
Constitutional review in its modern form emerged in the nineteenth century.10
Again, it served as a principal tool for the resolution of constitutional disputes among
The Feder al Constitutional Court 5
and within the individual states of the German Empire and often between the states
and the national governments.11 Under Germanys monarchical constitutions, the
forum for the resolution of such disputes was usually the parliamentary chamber in
which the states were corporately represented. Under Germanys republican consti-
tutions, on the other hand, the forum was usually a specialized constitutional tribu-
nal, the most notable of which, prior to the creation of the Federal Constitutional
Court, was the Weimar Republics State High Court (Staatsgerichtshof). As major
agencies of public law commissioned to decide sensitive political issues, these courts
were independent of the regular judiciary and were staffed with judges selected by
legislators.
Like most constitutional courts at the state level before and after the Nazi period,
the State High Court was a part-time tribunal whose members convened periodi-
cally to decide constitutional disputes. Its jurisdiction included 1) the trial of im-
peachments brought by the Parliament (Reichstag) against the president, chancellor,
or federal ministers for any willful violation of the constitution; 2) the resolution of
differences of opinion concerning a states administration of national law; and 3) the
settlement of constitutional confl icts within and among the separate states as well
as between states and the Reich. The State High Courts membership varied accord-
ing to the nature of the dispute before it; the more political the dispute the more
insistent was Parliament on having elected its members.12
These structures and powers, which influenced the shape of the Federal Constitu-
tional Court, highlight three salient features of constitutional review in German his-
tory. First, as just noted, an institution independent of the regular judiciary exercises
such review. Second, it takes cases on original jurisdiction, deciding them in re-
sponse to a simple complaint or petition, unfettered by the technicalities of an ordi-
nary lawsuit. Finally, it settles constitutional disputes between and within govern-
ments. Constitutional review is thus a means of protecting the government from
itself and also from the excesses of administrative power. But constitutional review
as described here does not contemplate judges intervening on behalf of citizens
against the executive branch of government.13 The German legal order has always
distinguished sharply between administrative and constitutional law. The juridical
basis of the distinction, according to Franz Jerusalem, is that the former concerns
the execution of the states will once it is translated into law, whereas the latter con-
cerns those organs of government constitutionally obligated to form the states will.14
These organsthe constitutionally prescribed units of the political systemand
these alone are the subjects of constitutional review.

Judicial Review. The doctrine of judicial review, unlike constitutional review, was
alien to the theory of judicial power in Germany.15 A judges only duty under the tra-
ditional German doctrine of separation of powers was to enforce the law as written.
About mid-nineteenth century, however, some German legal scholars and judges
sought to cultivate ground in which judicial review might blossom. In 1860 Robert
von Mohl, who was acquainted with the Federalist Papers and the work of the U.S.
6 chapter one
Supreme Court, published a major legal treatise in defense of judicial review.16 Two
years later an association of German jurists, with Rudolf von Ihering emerging as its
chief spokesman, went on record in favor of judicial review. Jurists attending the
meeting recalled that the Frankfurt Constitution called for the creation of an Impe-
rial Court of Justice (Reichsgericht). Th is court would have had the authority to hear
complaints by a state against national laws allegedly in violation of the constitution
and even by ordinary citizens claiming a governmental invasion of their fundamen-
tal rights, foreshadowing by a century similar authority conferred on the Federal
Constitutional Court. Their views, however, like the Frankfurt Constitution itself,
failed to take root in the legal soil of monarchical Germany (18711918).17
The Weimar Republic provided a climate more sympathetic to judicial review. In-
spired by the Frankfurt Constitution of 1849, the Weimar Constitution of 1919 estab-
lished a constitutional democracy undergirded by a bill of rights. The Weimar period
also witnessed the continuing influence of the free law school (Freirechtsschule) of
judicial interpretation,18 marking a significant challenge to the dominant tradition
of legal positivism. And although the Weimar Constitution remained silent with
respect to the power of the courts to review the constitutionality of law,19 judicial
review as a principle of limited government enjoyed strong support in the Weimar
National Assembly.
As Hugo Preuss predictedand warnedthe Weimar Constitutions failure to
expressly ban judicial review prompted courts to arrogate this power to themselves.20
In the early 1920s several federal high courts, including the Imperial Court of Justice
(which was established under the monarchical regime in 1879 and survived the re-
publican revolution of 1918 with its jurisdictionand nameintact), suggested in
dicta that they possessed the power to examine the constitutionality of laws.21 On 15
January 1924, deeply disturbed by the swelling controversy over the revaluation of
debts, the Association of German Judges confidently announced that courts of law
were indeed empowered to protect the right of contract and, if necessary, to strike
down national laws and other state actionsor inactions that failed to safeguard
property rightson substantive constitutional grounds.22 Several months later, the
Imperial Court of Justice announced that in principle courts of law are authorized
to examine the formal and material validity of laws and ordinances.23
State courts during the Weimar period held fi rm to the German tradition that
judges are subject to law and have the duty to apply it even in the face of confl icting
constitutional norms. Yet even here, differing postures toward judicial review were
beginning to emerge. Although most state constitutions said nothing about judicial
review, some courts followed the lead of the Imperial Court of Justice by accepting
judicial review in principle; however, they seldom invoked it to nullify legislation.
Only the Bavarian Constitution expressly authorized courts to review laws in light of
both state and national constitutions. The Schaumburg-Lippe Constitution, echoing
the still-dominant German view, expressly denied this power to the courts.24
When the German states (Lnder) reemerged as viable political entities after
World War II, judicial review appeared once more, this time as an express principle
The Feder al Constitutional Court 7
in several Land constitutions. Perhaps because of the Weimar experience, however,
these documents did not authorize the ordinary courts (with civil and criminal juris-
diction) and the specialized courts (including administrative, social, labor, and tax
jurisdiction) to review the constitutionality of laws. Once again, consistent with the
older and more fully established tradition of constitutional review, this authority was
vested in specialized courts staffed with judges chosen by the state parliaments from
a variety of courts or constituencies. In any event, as this survey of German constitu-
tional review demonstrates, the framers of the Basic Law had plenty of precedents on
which to draw in constructing their own version of constitutional democracy.

Herrenchiemsee Conference. It should now be clear that judicial review in Germany


did not spring full-blown from the Basic Law of 1949. It was adopted with German
precedents in mind. The Allied powers did, of course, concern themselves with the
reorganization of the judicial system.25 They insisted that any future government of
Germany must be federal, democratic, and constitutional. A constitutional govern-
ment, in the American view at least, implied the judicial power to assess the constitu-
tionality of laws and other official acts. Judicial review was certainly implicit in the
American understanding of an independent judiciary. The military governors, how-
ever, did not impose judicial review on a reluctant nation. The Germans decided on
their own to establish a constitutional court, to vest it with authority to nullify laws
contrary to the constitution, and to elevate this authority into an express principle of
constitutional governance.26 While they were familiar with the American system of
judicial review and were guided by the American experience in shaping their consti-
tutional democracy,27 Germans relied mainly on their own tradition of constitu-
tional review.
The groundwork for the Basic Law was prepared in a resplendent nineteenth-
century castle on an island in the Chiemseea vast Bavarian lakeduring August
1948. On the initiative of Bavarias state governor, Minister-President Hans Ehard,
the Lnder in the Allied zones of occupation called on a group of constitutional law
experts to produce a fi rst draft of a constitution to expedite the work of the ensuing
constitutional convention known as the Parliamentary Council.28 The Herrenchiem-
see proposals, which included provisions for a national constitutional tribunal,29 fol-
lowed the recommendations of Professor Hans Nawiasky, commonly regarded as the
father of the postwar Bavarian Constitution. Like many other state constitutions
drafted in 1946 and 1947, the Bavarian charter provided for a state constitutional court.
In cooperation with Hans Kelsen, Nawiasky had prepared a working paper proposing
the establishment of a constitutional tribunal modeled after the Weimar Republics
State High Court. Nawiasky was a strong advocate of judicial review during the Wei-
mar period, and Kelsen was well known as the founder of the Austrian Constitutional
Court.30 Claus Leusser, an Ehard associate and later a justice of the Federal Constitu-
tional Court, also helped to draft the Herrenchiemsee judicial proposals.
As a practical model for defi ning the powers of the proposed constitutional court,
the Herrenchiemsee drafters relied mainly on the Weimar eras State High Court.31
8 chapter one
The draft plan envisioned a tribunal vested with both the competence of the State
High Court (i.e., its constitutional review jurisdiction) and the authority to hear the
complaint of any person alleging that any public agency had violated his or her con-
stitutional rights. Aware of the potential power of the proposed court, the conferees
recommended a plan of judicial recruitment that would broaden the courts political
support. The plan included proposals for 1) the election of justices in equal numbers
by the Parliament (Bundestag) and the Federal Council of States (Bundesrat), 2) the
participation of both of these bodies in selecting the courts presiding justice (presi-
dent), and 3) the selection of one-half of the justices from the high federal courts of
appeal and the highest state courts.32 But the drafters were at odds over how the new
court should be structured; the discord centered on whether it should be organized
as a tribunal separate from and independent of all other courts or carved out of one of
the federal high courts of appeal.33

Parliamentary Council. The debate over the proposed courts structure continued
in the constitutional assembly, officially known as the Parliamentary Council (Parla-
mentarischer Rat).34 It all boiled down to a dispute over the nature of the new tribu-
nal. Should it be like Weimars State High Court and serve mainly as an organ for
resolving confl icts between branches and levels of government (i.e., a court of consti-
tutional review)? Or should it combine such jurisdiction with the general power to
review the constitutionality of legislation (i.e., a court of judicial review)? In line with
the Herrenchiemsee plan, the framers fi nally agreed to create a constitutional tribu-
nal independent of other public-law courts, but they disagreed over how much of the
constitutional jurisdiction listed in the proposed constitution should be conferred
on it as opposed to other high federal courts.
The controversy centered on the distinction between what some delegates re-
garded as the political role of a constitutional court and the more objective law-
interpreting role of the regular judiciary. Some delegates preferred two separate
courtsone to review the constitutionality of laws ( judicial review) and the other
to decide essentially political disputes among branches and levels of government
(constitutional review). Others favored one grand, multipurpose tribunal divided
into several panels, each specializing in a par ticu lar area of public or constitutional
law. The latter proposal was strenuously opposed by many German judges, who were
alarmed by any such mixing of law and politics in a single institution.35 The upshot
was a compromise resulting in a separate constitutional tribunal with exclusive juris-
diction over all constitutional disputes, including the authority to review the consti-
tutionality of laws.
The fi nal version of the Basic Law extended the newly created Federal Constitu-
tional Courts jurisdiction to twelve specific categories of disputes (Article 93 (1))
and such other cases as are assigned to it by federal legislation (Article 93 (2)).
Originally the Courts jurisdiction could be invoked only by federal and state gov-
ernments (i.e., the chancellor or a Land minister-president and his or her cabinet),
parliamentary political parties, and, in certain circumstances, regular courts of law.
The Feder al Constitutional Court 9
The framers rejected the Herrenchiemsee proposal to confer on private parties stand-
ing to petition the Court in defense of their constitutional rights, a decision in line
with the general practice of constitutional review in Weimar Germany and Austria.
(As noted below, however, the individual right to petition the constitutional court
was restored by legislation in 1951 and incorporated into the Basic Law in 1969.) The
two main parties in the Parliamentary Council favored these limited rules of access,
the Social Democratic Party of Germany (spd) because the limitations would pro-
tect political minorities in and out of the Parliament, and the Christian Democratic
Union (cdu) because its members saw the limitations as equally useful in preserving
German federalism.36
The interests of both political parties were also reflected in judicial selection
clauses specifying that the Federal Constitutional Court shall consist of federal
judges and other members, half to be elected by the Bundestag and half by the
Bundesrat (Article 94). Christian Democrats were thus assured of a strong federal
presence on the Court, just as Social Democrats could take comfort in knowing that
the Court would not be dominated by professional judges drawn wholly from a con-
servative judiciary. Impatient to get on with the work of producing a constitution, the
framers stopped there, leaving other details of the Constitutional Courts organiza-
tion and procedure to later legislation. But the Court had been given a breathtaking
mandate, both in scope and in depth; its jurisdiction was unlike any German court
that had preceded it and at the time was unique in comparison with other high
courts of judicial review around the world.

Legislative Phase. Another two years of parliamentary debate were necessary after
the promulgation of the Basic Law to produce the enabling statute creating the Federal
Constitutional Court. As had been the case in the Parliamentary Council, the shape
of the new tribunal represented compromises between the confl icting perspec-
tives of the cdu-led federal government, the spd opposition, and the states (repre-
sented in the Bundesrat) on such matters as judicial selection and tenure, the ratio of
career judges to other members, the qualifications of judicial nominees, the Courts
size and structure, and the degree of control over the Court to be exercised by the
Federal Ministry of Justice (Bundesministerium der Justiz).37 All participants in the
debate recognized that the Courts political acceptance would depend on broad
agreement on these matters across party and institutional lines. Finally, after months
of intense negotiation within and between the Bundestag and the Bundesrat, a bill
emerged with the overwhelming support of the major parliamentary parties and
all branches of government. The result was the Federal Constitutional Court
Act(Bundesverfassungsgerichtsgesetz) of 12 March 1951 (hereafter referred to as the
fcca).38
In its current version, the fcca includes 121 operative sections that codify and
flesh out the Basic Laws provisions relating to the Courts organization, powers, and
procedures, important features of which are discussed below. Representing numer-
ous political compromises, the fcca 1) lays down the qualifications and tenure of the
10 chapter one
Courts members, 2) specifies the procedures of judicial selection, 3) provides for a
two-senate tribunal, 4) enumerates the jurisdiction of each senate, 5) prescribes the
rules of access under each jurisdictional category, 6) defi nes the authority of the ple-
num (both senates sitting together), and 7) establishes the conditions for the removal
or retirement of the Courts members.

jurisdiction

The U.S. Constitution contains no express reference to any judicial power to pass
upon the constitutional validity of legislative or executive decisions. In the seminal
case Marbury v. Madison (1803) Chief Justice John Marshall derived the doctrine of
judicial review by inference from the nature of a written constitution and the role of
the judiciary.39 The Basic Law, by contrast, leaves nothing to inference. It enumerates
all of the Constitutional Courts jurisdiction. The Court is authorized to hear cases
involving the following actions:
Forfeiture of basic rights (Article 18)
Constitutionality of political parties (Article 21 (2))
Review of election results (Article 41 (2))
Impeachment of the federal president (Article 61)
Disputes between high state organs (Article 93 (1) [1])
Abstract judicial review (Article 93 (1) [2])
Federal-state confl icts (Articles 93 (1) [3] and 84 (4))
Individual constitutional complaints (Article 93 (1) [4a])
Municipal constitutional complaints (Article 93 (1) [4b])
Other disputes specified by law (Article 93 (2))
Removal of judges (Article 98)
Intrastate constitutional disputes (Article 99)
Concrete judicial review (Article 100 (1))
Public international law actions (Article 100 (2))
State constitutional court references (Article 100 (3))
Applicability of federal law (Article 126)
The Court thus has the authority not only to settle conventional constitutional
controversies but also to try impeachments of the federal president (Bundesprsi-
dent), to review decisions of the Bundestag relating to the validity of an election, and
to decide questions critical to the defi nition and administration of federal law. To
these constitutionally articulated responsibilities the Bundestag has added another
prominent jurisdictional power; Article 32 of the fcca permits the Court to issue a
temporary injunction in par ticu lar circumstances.
Each of the jurisdictional categories listed above is assigned to either the First or
Second Senate. The most important of these categories involve the constitutional com-
plaints brought by ordinary citizens, concrete judicial review, requests for temporary
The Feder al Constitutional Court 11
table 1. Federal Constitutional Court Cases, 19512011

Proceeding Docketed Decided

Constitutional Complaints 188,187 166,608*


Concrete Judicial Review 3,511 1,261**
Requests for Temporary 2,370 1,847
Injunction
Disputes between Federal Organs 180 97
Abstract Judicial Review 172 109
Federal-State Confl icts 45 27
Unconstitutional Parties 8 5
Other Proceedings 545 291
Totals 195,018 170,245

* Constitutional complaints decided by the senates: 4,034. The re-


mainder were decided by three-justice committees/chambers.
** Concrete judicial review cases decided by the senates: 1,043. The
remainder were decided by the three-justice chambers.
Sources: Docketed: Bundesverfassungsgericht, Aufgaben,
Verfahren und OrganisationStatistik fr das Geschft sjahr
2011Eingnge nach Verfahrensarten, available at www.bundes-
verfassungsgericht.de/organisation/gb2011/A-I-4.html; Decided:
Bundesverfassungsgericht, Aufgaben, Verfahren und
OrganisationStatistik fr das Geschft sjahr 2011Erledigungen
nach Verfahrensarten, available at www.bundesverfassungsgericht
.de/organisation/gb2011/A-I-5.html.

injunctions, disputes between high organs of the national government, abstract judi-
cial review, federal-state confl icts, and challenges to the constitutionality of political
partiesimportance here being measured by the number of cases fi led in each cate-
gory. As Table 1 shows, constitutional complaints make up about 96 percent of the
Courts caseload. As we shall see, however, some of the Courts most politically im-
portant work arises in other jurisdictional areas.

Constitutional Complaints. A constitutional complaint may be brought by individu-


als and entities vested with par ticular rights under the constitution. In this sense the
constitutional complaint differs from all other proceedings before the Court (except
applications for temporary injunctions), because the other proceedings are limited
to governmental entities, certain parliamentary groups, and judicial tribunals. After
exhausting all available means to fi nd relief in the other courts,40 persons who
claim that the state has violated one or more of their rights under the Basic Law
may fi le a constitutional complaint with the Federal Constitutional Court. Consti-
tutional complaints must be lodged within a certain time, identify the offending
action or omission and the institution of public authority responsible, and specify
12 chapter one
the constitutional right that has been violated.41 The fcca requires the Court to ac-
cept for decision any complaint if it is constitutionally significant or if the failure to
accept it would work a grave hardship on the complainant.42
The right of an individual to fi le a constitutional complaint was originally be-
stowed by legislation, and German citizens took advantage of this statutory right
inincreasing numbers over the years. By the mid-1960s the Court was awash in such
complaints. Germans had come to regard the constitutional complaint as an impor-
tant prerogative. From the beginning, these complaints have constituted the Courts
major source of business. In response, and with the Courts backing, federal legislators
anchored the right to fi le constitutional complaints in the Basic Law itself (Article 93
(1) [4a]). A companion amendment ratified in the same year (1969) vested municipali-
ties with the right to fi le a constitutional complaint if a law violates their right to self-
government under Article 28.43 The constitutional complaint was so popu lar that no
responsible public official opposed these amendments. Years later a president of the
Federal Constitutional Court was moved to say that the administration of justice in
the Federal Republic of Germany would be unthinkable without the complaint of
unconstitutionality.44
According to Article 93 (1) [4a] of the Basic Law, any person may submit a complaint
of unconstitutionality to the Court if one of his or her fundamental substantive or
procedural rights under the constitution has been violated by public authority.
Any person within the meaning of this provision includes natural persons with the
legal capacity to sue as well as corporate bodies and other legal persons possessing
rights under the Basic Law. As a general rule, only domestic legal persons are permit-
ted to fi le constitutional complaints, although the Court has ruled that foreign corpo-
rations are entitled to fi le complaints alleging a violation of the procedural rights
secured by Articles 101 (1) [2] and 103. The public authority clause of Article 93 (1) [4a]
permits constitutional complaints to be brought against any governmental action, in-
cluding judicial decisions, administrative decrees, and legislative acts. No ordinary
judicial remedy is available against legislative acts. If, however, such an act is likely to
cause a person serious and irreversible harm, he or she may fi le the complaint against
the act without exhausting other remedies. Finally, over and above these basic thresh-
old requirements, a complaint must be offensichtlich begrndet or clearly justified
(obviously stating a legally justifiable claim) if it is to be accepted and decided on its
merits by one of the Courts three-justice chambers (an internal process described later
in this chapter).45
The procedure for fi ling complaints in the Constitutional Court is relatively easy
and inexpensive. No fi ling fees or formal papers are required. Increasingly, com-
plaints are prepared with the aid of a lawyer,46 even though no legal assistance is re-
quired at any stage of the complaint proceeding.47 As a consequence of these rather
permissive submission rules the Court has been flooded with complaints, which
have swelled in number from well under 1,000 per year in the 1950s, to around 3,500 per
year in the mid-1980s, and rising from around 5,000 per year in the 1990s to a peak of
more than 6,300 in 2009. The number of constitutional complaints fi led with the Court
The Feder al Constitutional Court 13
in recent years rivals the number of cases on the appellate docket of the U.S. Supreme
Court. Although the Constitutional Court fully reviews all incoming complaints,
slightly fewer than 2 percent are successful on the merits. Nevertheless, such com-
plaints result in some of the Courts most significant decisions and make up more than
50 percent of its published opinions.

Concrete Judicial Review. Concrete, or collateral, judicial review arises from an or-
dinary lawsuit. If an ordinary German court is convinced that a relevant federal or
state law under which a case has arisen violates the Basic Law, it must refer the con-
stitutional question to the Federal Constitutional Court before the case can be de-
cided. Judicial referrals do not depend on the issue of constitutionality having been
raised by one of the parties. If a collegial court is involved, a majority of its members
must vote to refer the question. The petition must be signed by the judges who vote in
favor of referral and must be accompanied by a statement of the legal provision at
issue, the provision of the Basic Law implicated, and the extent to which a constitu-
tional ruling is necessary to decide the dispute.48 The Federal Constitutional Court
will dismiss the case if the referring judges demonstrate less than a genuine convic-
tion that a law or provision of law is unconstitutional or if the case can be decided
without settling the constitutional question.49 As a procedural matter, the Court must
permit the highest federal organs or a state government to enter the case and must also
afford the parties involved in the underlying proceeding an opportunity to be heard.
The parties make their representations mainly through written briefs.

Temporary Injunctions. Over the Courts fi rst sixty years its docket has been dom-
inated by constitutional complaints and concrete judicial review proceedings. In
recent years, however, applications for temporary injunctions (Einstweilige Anord-
nungen) have overtaken concrete judicial review proceedings as the Courts second
largest docket item. Alone among the jurisdictional provisions discussed here, ap-
plications for temporary injunctions have their basis in a statutory provision (Arti-
cle 32 of the fcca enacted pursuant to Article 93 (2) of the Basic Law) and not the
Basic Law itself. Temporary injunction proceedings differ from all others before the
Court in one other important respect: they do not involve the resolution of a sub-
stantive constitutional question but, rather, invest the Court with the procedural
authority to stay actions or measures if its ability to render a substantive ruling
isthreatened. Thus, temporary injunction proceedings serve to protect the power
ofthe Court and the publics interest in having it fulfi ll its role as protector of the
constitution.
In part, the rising number of temporary injunction proceedings can be attributed
to the rising number of constitutional complaints. The Courts very heavy workload
is one reason for what some observers view as an overly slow resolution of its cases. It
naturally follows that the length of time a complainant faces in obtaining relief from
the Court factors heavily in his or her decision to pursue provisional measures. As
one commentator noted, a party willing to bear the costs of bringing a constitutional
14 chapter one
complaint in the fi rst place is likely to feel an urgent need for relief as well.50 Viewed
from this perspective, even the one year it takes the Court to resolve 70 percent of all
constitutional complaints might seem too long a wait.51
Political strategy, as much as a concern for delayed relief from the Court, plays an
equal role in the relatively large number of temporary injunction applications. Laws,
executive actions, or judicial orders with time-sensitive objectives can be undermined
effectively with a successful temporary injunction application regardless of the out-
come in the substantive constitutional challenge, the results of which might be
reached long after the fact. Th is kind of political brinksmanship is often on display in
temporary injunction proceedings connected with constitutional challenges to for-
eign policy questions.52 Th is dynamic also highlights the fact that applications for
temporary injunctions are not limited to constitutional complainants but are avail-
able in all disputes subject to the Courts jurisdiction, including those disputes featur-
ing entities of public authority in Organstreit proceedings or abstract judicial review
proceedings.
Article 32 of the fcca provides that [i]n a dispute the Federal Constitutional
Court may deal with a matter provisionally by means of a temporary injunction if
this is urgently needed to avert serious detriment, ward off imminent force or for any
other important reason for the common weal. The Court applies a strict standard
and usually exercises considerable reserve when confronted with requests for tempo-
rary injunctions. The requisite urgency exists only if the Court cannot act on the
underlying substantive dispute in time to avoid detriment. The alleged harm will not
be regarded as serious, the Court has said, if it is slight, temporary, correctable, or
compensable. In deciding whether to issue a temporary injunction the Court invokes
the so-called double hypothesis in a weighing model. In principle, wholly blind to
the possible outcome of the underlying substantive constitutional dispute, the Court
weighs two concerns: 1) the harm that would result if no injunction is issued but the
challenged measures are later declared unconstitutional in the underlying substan-
tive proceeding; and 2) the harm that would result if an injunction is issued but the
challenged measures are later found to be constitutional in the underlying substan-
tive proceeding.53 The factors to be weighed, however, obviously require the Court
to give some consideration to the possible outcome in the underlying substantive
constitutional dispute. For this reason it should not be surprising that, despite the
Courts repeated insistence to the contrary, its decision on an application for a tem-
porary injunction very frequently is indicative of the outcome in the underlying
substantive constitutional matter.

Disputes between High Federal Organs. Confl icts known as Organstreit proceed-
ings involve constitutional disputes between the highest organs or branches of the
Federal Republic. The Courts function here is to supervise the operation and inter-
nal procedures of these executive and legislative organs and to maintain the proper
institutional balance between them.54 The governmental organs qualified to bring
cases under this jurisdiction are the federal president, Bundesrat, federal govern-
The Feder al Constitutional Court 15
ment, Bundestag, and units of these organs vested with independent rights by their
rules of procedure or the Basic Law.55 Included among these entities are individual
members of Parliament, any one of whom may initiate an Organstreit proceeding to
vindicate his or her status as a parliamentary representative.56 The parliamentary
party blocs (Fraktionen) also may avail themselves of the Courts Organstreit juris-
diction.57 Early on, the Courts plenum ruled that even nonparliamentary political
parties may invoke this jurisdiction.58 They may do so in their capacity as agencies
that attract votes during elections or organizers of the electoral process because, in
fulfi lling these tasks, political parties function as constitutional or federal organs
within the meaning of the Basic Law (Article 93 (1) [1]).59 If a political party is denied
a place on the ballot, or if its right to mount electoral activity is infringed by one of
the high organs of the Federal Republic, it can initiate an Organstreit proceeding
against the federal organ in question. An Organstreit proceeding is not available, how-
ever, to administrative agencies, governmental corporations, churches, or other cor-
porate bodies with quasi-public status.60

Abstract Judicial Review. Whereas the U.S. Supreme Court requires a real contro-
versy and adverse parties in order to decide a constitutional question, the Federal
Constitutional Court may decide differences of opinion or doubts about a federal or
state laws compatibility with the Basic Law on the mere request of the federal or a
state government or of one-fourth of the members of the Bundestag.61 Oral argument
before the Court, a rarity in most cases, is always permitted in abstract review proceed-
ings. The question of the laws validity is squarely before the Court in these proceedings
and a decision against validity renders the law null and void.62
When deciding cases on abstract review, the Court is said to be engaged in the
objective determination of the validity or invalidity of a legal norm or statute.63 The
proceeding is described as objective because it is intended to vindicate neither an
individuals subjective right nor the claim of the official entity petitioning for review;
the sole purpose of abstract review is to determine what the constitution means. In
so doing, the Court is free to consider any and every argument and any and every fact
bearing on any and every aspect of a statute or legal norm under examination. In-
deed, once the federal government, a Land government, or one-fourth of the Bunde-
stags members place a statute or legal norm before the Court on abstract review,
the case cannot be withdrawn without the Courts permission, a condition that rein-
forces the principle of judicial independence, which in turn allows the Court to speak
in the public interest when necessity demands it.

Federal-State Confl icts. Constitutional disputes between a Land and the federation
(Bund, which consists of the national sovereign as opposed to the state sovereigns)
ordinarily arise out of confl icts involving a Lands administration of federal law or
the federal governments supervision of Land administration. Proceedings may be
brought only by a Land government or by the federal government. In addition, the
Court may hear other public law disputes between the federation and the Lnder,
16 chapter one
between different states, or within a state if no other legal recourse is provided. Here
again, only the respective governments in question are authorized to bring such
suits. As in Organstreit proceedings, the complaining party must assert that the act
or omission complained of has resulted in a direct infringement of a right or duty as-
signed by the Basic Law. For its part, the Constitutional Court is obligated by law
todeclare whether the act or omission infringes the Basic Law and to specify the
provision violated. In the process of deciding such a case the Court may also de-
cide a point of law relevant to the interpretation of the [applicable] provision of
the Basic Law. 64

Prohibiting Political Parties. The Federal Constitutional Courts function as guard-


ian of the constitutional order fi nds its most vivid expression in Article 21 (2) of the
Basic Law. Under this provision, political parties seeking to impair or abolish the
free democratic basic order or to endanger the existence of the Federal Republic
ofGermany shall be unconstitutional. The article goes on to declare that only the
Federal Constitutional Court may declare parties unconstitutional. To minimize any
abuse of this provision, the fcca authorizes only the Bundestag, the Bundesrat, and
the federal government (Bundesregierung; i.e., the chancellor and his or her cabi-
net) to initiate an Article 21 action against a party. A Land government may apply to
have a party declared unconstitutional if that partys organization is confi ned to the
applicants territory. Th is jurisdiction, as with most of the other proceedings before
the Court, is compulsory. Unless the moving party withdraws its petition, the Court
is obligated to decide the case, even if it takes its time in doing so.
As Table 1 indicates, the Court has received only eight such petitions and decided
five. In two of the cases, decided early on, the Court sustained the petitions: in 1952
when it banned the neo-Nazi Socialist Reich Party (srp), and in 1956 when it ruled
the Communist Party of Germany (kpd) unconstitutional.65 In 1994 the Court re-
jected the petitions of the Bundesrat and the federal government to have the Free
German Workers Party (Freiheitliche Deutsche Arbeiterpartei; hereafter referred to
as the fap) declared unconstitutional as well as Hamburgs petition to ban the Na-
tional List (hereafter referred to as the nl) from operating in its territory. The Court
ruled that although the fap and the nl advanced views hostile to political democ-
racy, neither group qualified as a political party within the meaning of the law or the
constitution.66 In 2003 the petitions of the Bundestag, Bundesrat, and federal gov-
ernment, seeking a ban of the far-right National Democratic Party of Germany (Na-
tionaldemokratische Partei Deutschlands; hereafter referred to as the npd), were
dismissed because of the extensive, covert involvement of government security
agents in the leadership of the party.
The Feder al Constitutional Court 17

institution

Status. When the Constitutional Court opened its doors for business in Karlsruhe
on 28 September 1951, its status within the governmental framework of separated pow-
ers, and even its relationship to the other federal courts, remained an unsettled issue.
The Basic Law itself was ambivalent on the matter of the Courts status. On the one
hand, the wide-ranging powers of the Court laid down in the Basic Law and the
fcca pointed to a tribunal commensurate in status with the other independent con-
stitutional organs (Bundesrat, Bundestag, federal president, and federal government)
created by the constitution. On the other hand, the Basic Law authorized Parliament
to regulate the Courts organization and procedure. Initially, the new tribunal was
placed under the authority of the Federal Ministry of Justice, a situation that irritated
several justices, including the Courts fi rst president, Hermann Hpker-Aschoff. As a
consequence, the justices boldly set out, in their fi rst year of operation, to defend the
Courts autonomy, foreshadowing the fierce independence they would later exercise
in adjudicating constitutional disputes.67
On 27 June 1952, after months of planning, the Court released a memorandum origi-
nally drafted by Justice Gerhard Leibholz, one of its most renowned and respected
members, that called for an end to any supervisory authority by the Ministry of Justice,
complete budgetary autonomy, and the Courts full control over its internal adminis-
tration, including the power to appoint its own officials and law clerks. The memoran-
dum concluded that the Federal Constitutional Court is a supreme constitutional
organ that is coordinate in rank with the Bundestag, Bundesrat, federal chancellor, and
federal president. Its members, then, are in no sense civil servants or ordinary federal
judges but rather supreme guardians of the Basic Law entrusted with the execution of
its grand purposes, no less than other high constitutional organs of the Federal Repub-
lic of Germany. Indeed, the memorandum continued, the Court has the even greater
duty to ensure that other constitutional organs observe the limits of the Basic Law.68
The memorandum from Karlsruhe generated a strong tremor in Bonn, the capital
of West Germany during the years when Germany was divided between the western
Federal Republic and the eastern German Democratic Republic; it startled the gov-
ernment, angered the Ministry of Justice, and set off several years of skirmishing that
yielded alignments almost identical to those that had formed in the early stages of the
parliamentary debate on the structure of the proposed tribunal. Social Democrats
and the Bundesrat generally supported the justices demands, while the cdu and its
coalition parties in the Bundestag generally opposed them. The real tangle, however,
was between the Ministry of Justice and the Constitutional Court, and it featured an
occasional unseemly public exchange between two members of the liberal Free Demo-
cratic Party (fdp) who, as members of the Parliamentary Council, had played major
roles in drafting the Basic Law. The two figures were Thomas Dehler, federal minister
of justice, and Justice Hermann Hpker-Aschoff, the stately and highly respected presi-
dent or chief justice69 of the Federal Constitutional Court.
18 chapter one
In 1953 the Bundestag severed the Courts ties to the Ministry of Justice, and by
1960, with the gradual growth of the Courts prestige and influence, all of the de-
mands articulated in the Leibholz memorandum had been met.70 In Germanys of-
ficial ranking order, the Courts president now enjoys the fi ft h-highest position in
the Federal Republic, following the federal president, the federal chancellor, and the
presidents of the two legislative organs (Bundestag and Bundesrat). As supreme
guardians of the constitution the remaining justices follow behind. Eventually the
justices of the Federal Constitutional Court were exempted from the disciplinary
code regulating all other German judges.71 The Courts hard-won constitutional status
was best symbolized by a 1968 amendment to the Basic Law providing that the func-
tion of the Federal Constitutional Court and its justices must not be impaired even
in a state of emergency. During such a time, the special body responsible for acting
on behalf of the Bundestag and the Bundesrat is barred from amending the fcca un-
less such an amendment is required, in the opinion of the Federal Constitutional
Court, to maintain the Courts ability to function.72

Two-Senate Structure. The most important structural feature of the Constitutional


Court is its division into two senates with mutually exclusive jurisdiction and per-
sonnel.73 Justices are elected to either the First or Second Senate, with the Courts
president presiding over one senate and the Courts vice president presiding over the
other. Both chief justices are wholly independent with respect to judicial matters
before their respective senates. Finally, each senate is equipped with its own admin-
istrative office for the organization and distribution of its workload.
The twin-senate idea was a compromise between legislators who preferred a fluid
system of twenty-four justices rotating on smaller panels and those who preferred a
fi xed body like that of the U.S. Supreme Court. More important, the bifurcation was
the institutional expression of the old debate between those who viewed the Court
in conventional legal terms and those who saw it in political terms. The original divi-
sion of jurisdiction showed that the senates were intended to fulfi ll very different
functions. The Second Senate was designed to function much like Weimars State
High Court; it would decide political disputes between branches and levels of govern-
ment, settle contested elections, rule on the constitutionality of political parties,74
preside over impeachment proceedings, and decide abstract questions of constitu-
tional law. The First Senate was vested with the authority to review the constitutional-
ity of laws and to resolve constitutional doubts arising out of ordinary litigation. More
concerned with the nonpolitical side of the Courts docket and the objective pro-
cess of constitutional interpretation, the First Senate would hear the constitutional
complaints of ordinary citizens as well as referrals from other courts. As already noted,
an ordinary court that seriously doubts the constitutionality of a statute under which
an actual case arises is obliged, before deciding the case, to refer the constitutional
issue to the Constitutional Court for its decision.75
Th is division of labor resulted initially in a huge imbalance between the workloads
of the two panels. The Second Senate decided only a handful of political cases, while
The Feder al Constitutional Court 19
the First Senate found itself flooded with constitutional complaints and concrete re-
view cases. As a consequence, the Bundestag amended the fcca in 1956 to distribute
the caseload more evenly between the senates. Much of the First Senates work was
transferred to the Second Senate, thus eroding the original rationale of the two-senate
system. The Second Senate, while retaining its political docket, would henceforth
decide all constitutional complaints and concrete judicial review cases dealing with
issues of civil and criminal procedure. The First Senate would continue to decide all
such cases involving issues of substantive law. In addition, the plenumthe two
senates sitting togetherwas authorized by law to reallocate jurisdiction in a man-
ner that would maintain relatively equal caseloads between the senates.76
The number of justices serving on the two senates has also changed over the years.
The fcca originally provided for twelve members per senate. In 1956 the number was
reduced to ten; in 1962 it was further reduced to eight, fi xing the Courts total mem-
bership at sixteen (see Appendix A).77 Considerations of efficiency, coupled with
the politics of judicial recruitment,78 prompted these reductions. For all practical
purposes, then, the Constitutional Court comprises two independent tribunals, al-
though each functions in the name of the Court as a whole. Since the 1980s, however,
the Bundestag has modified the ironclad rule against any intersenate ser vice by justices
in two ways. First, if one senate is unable to convene because of the incapacity or un-
availability of one or more of its justicesa quorum consists of six justicesa justice
from the other senate may be chosen by lot to serve temporarily in the understaffed
senate. The presiding justices of the two senates (the Courts president and vice presi-
dent) are excluded from serving in this substitute capacity.79 Second, upon the dis-
qualification of a justice from participating in a particular caseeven if such disquali-
fication does not destroy the respective senates quoruma replacement justice is to
be chosen by lot from the other senate.80
The two senates are thoroughly independent of one another. Each senate is the
Federal Constitutional Court.81 Yet this strict separation has administrative and
doctrinal limits. All sixteen of the Courts justices periodically convene as the ple-
num to address administrative matters relevant to the Court as a whole. The plenum,
for example, issues rules on the Courts procedure and judicial administration.82 The
plenum, as noted earlier, also fairly allocates the senates jurisdictional assignments
in order to avoid an imbalanced docket.83 As regards constitutional doctrine, the
senates frequently have developed distinct approaches to common questions. But
only the plenum can decide a case in the event that one senate seeks to deviate from
the legal opinion contained in a decision of the other senate.84 Resort to the ple-
num in these circumstances is a matter to be decided by the senate that was origi-
nally responsible for the case, that is, the senate that wants to disregard the other
senates jurisprudence. Nevertheless, the opposite senate decides whether its existing
jurisprudence has, in fact, been implicated. It would seem, based on these rules, that
one senate can compel the other to call for the plenums intervention.85 But the sen-
ates jealously guard against such meddling. In the Unwanted Child Case (1997;
no.4.3), for instance, the First Senate refused to heed the Second Senates call for the
20 chapter one
plenum by arguing that resort to the plenum is necessary only if an intentional de-
parture from a decisive facet of the other senates reasoning in a similar case is impli-
cated. The First Senate explained that a senates legal opinion is decisive if retract-
ing it would undermine the concrete holding of the case.86 In a rare public display of
tension at the Court, the Second Senate published an accompanying order objecting
to the First Senates assertion of this very narrow standard and its conclusion that the
standard had not been met in the case at hand.87

Intrasenate Chamber System. To speed up the Courts decision-making process and


ease the burden of an increasing number of cases, the internal structure of the two sen-
ates was changed in 1956 by authorizing each senate to set up three or more preliminary
examining committees, each consisting of three justices, to fi lter out frivolous con-
stitutional complaints.88 Th is was made necessary by the fact that, except under dis-
tinct circumstances, the fcca obliges the Court to admit all constitutional complaints
for decision.89 As a consequence of this reform, at the beginning of each business year
the senates established committees, limited however by the rule that no three justices
could serve together on the same committee for more than three years.90 The Courts
president and vice president served as chairs of the respective committees to which
they were assigned, as did the senior justice on each of the remaining committees. A
committee could dismiss a complaint if all three of its members considered it to be in-
admissible or to offer no prospect of success for other reasons.91 Under current proce-
dure, if one of the three justices votes to accept a complaintthat is, if he or she thinks
it has some chance of successit is forwarded to the full senate for ordinary consider-
ation of its admissibility.92 At this second stage, the rule of three controls; if at least
three justices in the full senate are convinced that the complaint raises a question of
constitutional law likely to be clarified by a judicial decision, or that the complainant
will suffer serious harm in the absence of a decision, the complaint will be accepted for
review.93 Thereafter, and on the basis of more detailed examination, a senate majority
could still reject the complaint as inadmissible or trivial.94
In 1986, on the Constitutional Courts recommendation, the Bundestag enhanced
the power of the three-justice committees and renamed them chambers (Kammern).
In addition to the normal screening function they had been performing, the three-
justice chambers are now empowered to rule on the merits of a constitutional com-
plaint if all three justices agree with the result and the decision clearly lies within
standards already laid down in a case decided by the full senate.95 The authority to
declare a statute unconstitutional or in confl ict with federal law is still reserved to the
full senate.96 A chamber is not required to fi le a formal opinion justifying its refusal
to accept a complaint for a decision on the merits.97 As a matter of practice, however,
whether deciding a complaint on the merits or on the question of admissibility
(Zulssigkeit), a chamber often accompanies its decision with an opinion that can be
as short as one page and as long as several pages. Most of these decisions remain un-
published, and they are cata logued in the Courts fi les for internal use and reference.
In the past, on rare occasions and in consultation with the full senate, chamber
The Feder al Constitutional Court 21
decisions were published in the Courts official reports. Other chamber opinions
that served to clarify points of law laid down in previous cases or that were likely to
command public attention might be released for publication in major legal periodi-
cals such as the Neue Juristische Wochenschrift and the Juristenzeitung.98 In the last
decade the chamber process has benefited from greater transparency. Since 1999 most
chamber decisions are available at the Courts website and, since 2003, the Court has
published a limited and perhaps necessarily eclectic selection of chamber decisions
in a new set of official reports.
As yet another mechanism for easing the Courts overwhelming caseload, the
fcca authorizes the Court to fi ne petitioners who abuse the constitutional com-
plaint procedure. Currently the Court may level a fi ne of up to 2,600 on abusers, but
it rarely does so.99 In 1986 the chambers were given the additional authority to im-
pose a fee on any petitioner whose complaint they refused to accept because it was
either clearly inadmissible or wholly unlikely to succeed. Th is practice, however,
failed to decrease the number of complaints arriving at the Court, and it was eventually
abandoned.
By separating the wheat from the chaff, the chambers dispose of more than 95 per-
cent of all constitutional complaints, relieving the full senates of what would otherwise
be an impossible task. As useful as the chamber review system is for helping con-
trol the Courts docket, it is not without problems. It has been the subject of several
constitutional challenges, the complainant having argued in each case that a cham-
bers dismissal of his or her complaint constituted a denial of the right to the juris-
diction of his lawful judge under Article 101 (1) [2] of the Basic Law. Since the Basic
Law provides for one Constitutional Court, argued the complainants, the full senate
is constitutionally required to decide every case. In the three Three-Justice Committee
cases100 involving decisions by both senates, the Court ruled against the complain-
ants on the basis of its original statutory authority to establish internal committees.
In one instance, seemingly piqued by the audacity of the complainant who chal-
lenged its decision-making procedures, the Second Senate slapped a nominal fi ne on
the complainant for abusing the constitutional complaint procedure.101 These deci-
sions, all rendered before the right to fi le a constitutional complaint was entrenched
in the Basic Law, underscored the fi nality of committee decisions unanimously re-
jecting complaints. In short, if a complaint is unanimously rejected, no appeal lay
to the full senate, its sister senate, or the plenum. The constitutionalization of the
complaint procedure in 1969 appeared to erode the foundation of the Three-Justice
Committee cases. In recent years, however, no challenge has been hurled against the
chamber system on constitutional grounds, and in any event it is rather hard to
imagine the Court undermining its own protective ramparts.102
Other problems shadow the chamber review system. There is the chance that differ-
ent standards may exist from one chamber to the next, undermining the uniformity of
the Courts jurisprudence. There has also been criticism of the quality of the chamber
decisions and expressions of concern that the chambers have informally replaced the
senates.103 Finally, there is some reason to wonder if the flexibility and opacity of the
22 chapter one
chamber system has led to the informal establishment of discretionary review at
theCourt, opening the possibility for the strategic development of jurisprudence and
the erosion of subjective rights guarantees, both of which the fcca sought to avoid.104
Despite these concerns, it is clear that some form of gatekeeping procedure involv-
ing less than full senate review is necessary as a practical matter if the Court is to cope
with a system that entitles [anyone] to complain to it about virtually anything.105

Qualifications and Tenure. To qualify for a seat on the Constitutional Court, per-
sons must be forty years of age, be eligible for election to the Bundestag, and possess
the qualifications for judicial office specified in the German Judiciary Act (Deutsches
Richtergesetz). Th is means that prospective justices must have normally passed the
fi rst and second major state bar examinations. Additionally, justices may not simulta-
neously hold office in the legislative or executive branch of the federal or a state gov-
ernment. Finally, the fcca provides that the functions of a justice shall preclude
any other professional occupation except that of a professor of law at a German insti-
tution of higher education and that the justices judicial functions must take prece-
dence over any and all professorial duties.106
The fcca originally provided lifetime terms for the justices of each senate who
had been selected from the federal courts. The other members of the Courtjustices
not required to be chosen from the federal courtswere limited to renewable eight-
year terms of office. The recruitment of a certain number of judges from the federal
courts for the duration of their terms on those courts was expected to bring judicial
experience and continuity to the Constitutional Courts work. Parliament amended
the fcca in 1970, however, to provide for single twelve-year terms for all justices,
with no possibility of reelection.107 Th ree of the eight justices serving in each senate
must, as before, be elected from the federal judiciary. All justices on the Constitutional
Courtfederal judges and other membersmust retire at age sixty-eight, even if
they have not yet completed their twelve-year term.
The debate on judicial tenure prior to the 1970 change in the law was entangled with
the question of whether justices should be authorized to publish dissenting opinions.108
As early as 1968, lawmakers, supported by a majority of the justices, seemed prepared
to sanction signed dissenting opinions. But the feeling was widespread that the jus-
tices could not be expected to speak their minds if their tenure depended on the con-
tinuing pleasure of the Bundestag or Bundesrat. The justices themselves favored life-
time appointments. The government in turn responded with a bill that provided for
both dissenting opinions and a twelve-year term with the possibility of reelection for
a single second term of twelve years. Social Democrats, however, insisted on a single
fi xed term of twelve years, conditioning their support of the dissenting opinion largely
on the acceptance of this proposal. The question was not hotly contested among the
political parties. A single twelve-year term, combined with the dissenting opinion,
was generally thought to be an adequate solution to both the problem of judicial in-
dependence and the need for a greater measure of judicial openness on the Constitu-
tional Court.109
The Feder al Constitutional Court 23
Machinery of Judicial Selection. The Basic Law provides that half the Courts mem-
bers be elected by the Bundestag and half by the Bundesrat. The participation of the
Bundestag in the selection of the Courts justices underscores the significant role
the Court plays in reviewing the content and procedural integrity of the decisions of
the popularly elected Parliament. It seemed appropriate then that the Bundestag
should play a major role in the Courts staffi ng.110 Similarly, the Bundesrats partici-
pation in the judicial selection process was meant to ensure that the Lnder would
have an equally significant voice on the Court.111 Several of the Basic Laws framers
assumed that preserving German federalism against centralizing tendencies would
be the chief, if not exclusive, function of the Court.112
The Bundestag elects eight justices indirectly through a twelve-person Judicial
Selection Committee (Wahlmnnerausschuss). Party representation on the Judi-
cial Selection Committee is proportionate to each partys strength in the Bundestag;
eight votesa two-thirds supermajorityare required to elect.113 The Bundesrat
votes as a whole for its eight justices, a two-thirds vote also being required to elect.114
Although each legislative organ elects four members of each senate, the fcca stipu-
lates that, of the three justices in each senate selected from among the judges of the
highest federal courts, one shall be elected by one [house] and two by the other, and
of the remaining five justices, three shall be elected by one [house] and two by the
other.115 Which house elects each combination is a matter of informal agreement.
The Bundestag and Bundesrat alternate in selecting the Courts president and vice
president (the Bundestag was authorized to elect the fi rst president and the Bundes-
rat the fi rst vice president).
Prior to the selection process the minister of justice is required to compile a list
of all the federal judges who meet the qualifications for appointment, as well as a list
of the candidates submitted by the parliamentary parties, the federal government,
or a state government. The minister delivers these lists at least one week before the
Bundestags Judicial Selection Committee or the full Bundesrat convene on the
question of appointments to the Court. If either house fails to elect a new justice
within two months of the expiration of a sitting justices term, the chair of the Judi-
cial Selection Committeethe oldest member of the committeeor the president
of the Bundesrat (depending on which legislative organ is electing a new justice)
asks the Constitutional Court itself to propose a list of three candidates; if several
justices are to be elected simultaneously, the Court is required to propose twice as
many candidates as the number of justices to be elected.116 The plenum selects the
list by a simple majority vote. There is, however, no obligation on the part of the Ju-
dicial Selection Committee or the Bundesrat to choose the appointee from this or
any other list.
The process of judicial selection is highly politicized. The Judicial Selection Com-
mittee, which consists of senior party officials and the top legal experts of each par-
liamentary party, conducts its proceedings behind closed doors and after extensive
consultation with the Bundesrat.117 Although the parliamentary parties may not le-
gally instruct their representatives on the Judicial Selection Committee how to vote,
24 chapter one
committee members do in fact speak for the leaders of their respective parties. The
two-thirds majority required to elect a justice endows opposition parties in the Judicial
Selection Committee with considerable leverage over appointments to the Constitu-
tional Court. Germanys two main parties, the Social Democrats and the Christian
Democrats, are in a position to veto each others judicial nominees. The Free Demo-
cratic Party and the Green Party, traditionally smaller political blocs in the Parliament,
also have won seats on the Court for their nominees. Compromise is a practical neces-
sity in any case.
Compromise among contending interests and candidacies is equally necessary in
the Bundesrat, where the interests of the various states, often independent of party
affi liation, play a paramount role in the selection of the justices. An advisory com-
mission consisting of the state justice ministers prepares a short list of potentially
electable nominees. The justice ministers on the commission, like certain state gov-
ernors (minister-presidents) and members of the Bundestags Judicial Selection
Committee, often are themselves leading candidates for seats on the Constitutional
Court. Informal agreements emerge from the commissions proceedings, specifying
which states shall choose prospective justices and in what order. Th roughout this
process the commission coordinates its work with the Bundestags Judicial Selection
Committee. It is important to avoid duplicate judicial selections, and the two cham-
bers need to agree on the par ticu lar senate seats each is going to fi ll and which of
these seats are to be fi lled with justices recruited from the federal courts.118
While the process for the selection of Federal Constitutional Court justices lacks
the transparency of the process by which justices are seated on the U.S. Supreme
Court, the spirit of compromise and cooperation that prevails in Germany has, thus
far, avoided the sensationalism, scandal, and personalization that sometimes seem
to dominate U.S. Supreme Court appointments.119 Of course, lifelong tenure com-
bines with the principle of stare decisis to raise, imperceptibly, the stakes in the U.S.
appointment process. For all its opacity, the German process, largely as a conse-
quence of the supermajority required for election, nonetheless has consistently pro-
duced a Constitutional Court that is reflective of Germanys most prominent politi-
cal parties, regional divisions, and confessions.120 In one respect, however, the Court
has been less than representative of German society. The presidency of Jutta Lim-
bach (19942002), the fi rst woman to hold the position, draws attention to the fact
that the Court continues to be dominated by men. In 1951 the remarkable Erna Schef-
fler, who participated in the Parliamentary Council, was appointed as one of the Courts
fi rst justices. In the subsequent sixty-one years, during which more than one hun-
dred jurists have donned the Courts red robes and caps, only thirteen other women
have found their way to Karlsruhe. In 2011 only five of the Courts sixteen justices
were women.
The Feder al Constitutional Court 25

pro cess

Internal Administration. The Federal Constitutional Court achieved a major vic-


tory when it won the authority early on to administer its own internal affairs. Admin-
istrative autonomy had two notable consequences for the Courts institutional devel-
opment. First, armed with the power to prepare its own budget in direct consultation
with Parliament and the Ministry of Finance, the Court was able to plan its own
future. In 1964 it even won approval for an ultramodern building designed by archi-
tects and engineers of its own choosing. Second, the administrative authority of the
Courts president was substantially enlarged. While only primus inter pares in the ju-
dicial conference room, he or she is primus on all other matters of internal adminis-
tration, a situation that once aggravated relations between the president and several
associate justices.
In 1975, after years of discord between the Courts president and individual jus-
tices over their respective duties and powers, the Courts plenum enacted a set of
standing rules of procedure governing the Courts internal operations that has been
revised several times since.121 The rules charge the plenum, over which the Courts
president presides, with preparing the budget, deciding all questions pertaining
to the justices duties, and formulating general principles of judicial administration.
They authorize the plenum to establish several standing committees for the purpose
of recommending policies dealing with matters such as record-keeping, budgetary
policy, personnel administration, and library administration. The rules require the
president to carry out these policies and to represent the Court in its official relations
with other government agencies and on ceremonial occasions. Overall judicial ad-
ministration is the responsibility of the Constitutional Courts director, the highest
administrative official at the Court. The director, like the justices themselves, must
be a lawyer qualified for judicial office. Indeed, one previous director, Walter Rudi
Wand, was elected to the Second Senate in 1970. Finally, each justice is entitled to
four legal assistants of his or her own choosing. Legal assistants are not recent law
school graduates like the law clerks that assist judges and justices in the United
States. They have usually already embarked on legal careers as judges, civil servants,
or professors of law. Most serve for two or three years, although some legal assistants
have stayed on for longer periods.122

Decision-Making Procedure. The fcca and the Constitutional Courts Rules of


Procedure (Geschftsordnung des Bundesverfassungsgerichts) set forth each senates
internal practices and procedures. For its part, the fcca includes general and special
provisions governing each category of jurisdiction. The Rules of Procedure deal with
1) conditions under which a justice may be excluded from a case; 2) procedures to be
followed in various types of cases; 3) rights of the parties involved in litigation before
the Court, including the qualifications of those legally entitled to represent them;
4)obligations of public officials and judges to cooperate with the Court in disposing
26 chapter one
of certain cases; 5) special rules accompanying the issuance of temporary orders; and
6) the manner in which decisions are made and announced.123
The procedures on judicial removal require justices to recuse themselves from
acase if they are related to one of the parties or have a personal interest in its out-
come.124 Recusal, however, is beyond the justices personal discretion. Whether a
justice initiates the recusal or resists a formal challenge of bias by one of the parties,
the senate decides the matter in the justices absence. A decision denying or upholding
a voluntary recusal or a challenge to a justices refusal to withdraw from a case must
be supported in writing and included among the Courts published opinions.125 A
justice who wishes not to be recused in the face of a recusal motion must provide the
senate with a formal statement in defense of his or her involvement in the case. The
statement is included in the senates formal opinion on the recusal. The critical issue
in such cases is not whether the justice in question is in fact biased, but whether a
party to the case has a sufficient reason for believing that the justice may be incapa-
ble of making an impartial judgment. These procedures have been invoked only
rarely to exclude justices from participating in the decision of a case.126
The Constitutional Courts deliberations are secret, and the justices render their
decisions on the basis of the official record. The rules require that each senate deci-
sion be justified by official opinions signed by all participating justices.127 Recording
the justices participation is vastly different from confi rming their unanimity; the
fcca grants the senates the discretion to disclose or withhold information about the
number of votes for or against the fi nal decision. Oral arguments are the exception;
they are limited to cases of major political importance. In 2011 the Court held only
seven oral arguments.128 A decision handed down on the basis of an oral proceeding
is known as a judgment (Urteil); a decision handed down in the absence of oral argu-
ment is labeled an order or ruling (Beschluss). The distinction seems to be little more
than a formality, for all state authorities are bound by all of the Courts decisions. An
oral argument leading to an Urteil obviously gives a case a more prominent public
profi le but a Beschluss is no less important or enforceable. All decisions having the
force of general lawfor example, most abstract and concrete judicial review cases
must be published in the Federal Law Gazette,129 along with all parliamentary resolu-
tions and laws.

Case Assignment. Specialization is a major feature of the judicial process within the
Federal Constitutional Court. As noted earlier, each senate has a specified jurisdic-
tion. Once incoming cases have been processed in the Office of the Director, they are
channeled to the appropriate senate and then passed on to the various justices ac-
cording to their areas of expertise.130 Before the start of the business year, each senate
establishes the ground rules for the assignment of cases. By mutual agreement, and in
consultation with his or her senates presiding justice, each justice serves as the rap-
porteur (Berichterstatter) in par tic u lar cases. The ground rules for the assignment
of cases are designed to take into account the justices interests and expertise. For
example, it is typical that at least one justice of the Second Senate has a background
The Feder al Constitutional Court 27
in international law and European Union law. He or she serves as the rapporteur in
cases involving international legal issues and, most prominently, Germanys partici-
pation in supranational organizations like the European Union (eu) and interna-
tional organizations like the North Atlantic Treaty Organization (nato). Another
justice might take charge of cases involving tax and social security law, while still
another might be assigned cases dealing with issues arising from family law. Despite
this acknowledg ment of par ticu lar justices expertise in the assignment of cases, oc-
casionally justices serve as rapporteurs in cases outside their specialties.
The rapporteurs job is to prepare a written document known as the Votum, the
creation of which is a crucial stage in the decisional process. Aided by legal assistants,
the rapporteur prepares what amounts to a major research report. The Votum describes
the background and facts of the dispute, surveys the Courts previous decisions
and the legal literature, presents fully documented arguments advanced on both sides
of the question, and concludes with a personal view of how the case should be decided.
A Votum, which may be well over a hundred pages long, can take weeks, even months,
to prepare; often it forms the basis of the fi rst draft of the Courts fi nal opinion.131 In
any calendar year each justice prepares several major Voten, studies thirty to forty
others authored by other justices, draft s shorter reports (Kurzvoten)up to four
hundred per yearfor the two other justices serving on a par ticu lar three-justice
chamber, writes the opinion in those cases over which he or she presides as rappor-
teur, and prepares for the weekly conferences.

Oral Argument. As already noted, formal hearings before the Court are rare, except
in Organstreit and abstract judicial review cases, in which oral argument is manda-
tory unless waived by the major organs or entities of government bringing these
cases. The rapporteur, who by this time has completed his or her Votum, usually
dominates the questioning. The main function of the oral argument is less to refi ne
legal issues than to uncover, if possible, additional facts bearing on them. For this
reason the Court may hear from fact experts during the oral argument in order to
establish the truth,132 as well as from the lawyers, law professors, or public officials
formally advocating for the parties. The public hearing also adds legitimacy to the
decision-making process in cases of major political importance, particularly when
minority political parties allege that the established parties have treated them un-
constitutionally. The generous time allotted to oral proceedingsa full day, or more
in exceptional casesand the Courts readiness to hear the full gamut of argumen-
tation on both sides of a disputed question are intended to generate goodwill and
convey a sense of fairness and openness to winners and losers alike. In spite of this
genuine commitment to transparency, openness, and inclusion, the Courts oral ar-
guments cannot be taped or broadcast. The Court has upheld this rule over constitu-
tional free speech and media freedom challenges with respect to all German
courts.133 The only exception to this rule is that the media are allowed to broadcast
the fi rst, dramatic moments of the Courts public proceedings when the justices take
the bench in their resplendent red robes and caps, up to the moments just after the
28 chapter one
presiding justice formally opens the proceedings by announcing the fi le number and
briefly introduces the case at hand.

Conference. The presiding justice of each senate schedules weekly conferences to


decide cases and dispose of other judicial business. Except for August and Septem-
ber, when the Court is not in session, conference sessions are normally held every
Tuesday, frequently spilling over into Wednesday and Thursday. Voten and draft
opinions of cases already decided dominate the agenda. In considering a Votum, the
presiding justice calls on the rapporteur to summarize the case and justify the rec-
ommended solution. The rapporteurs role is crucial here, for a carefully drafted
and well-organized Votum usually carries the day in conference. In addition, the
pressure of time often prompts justices to defer to the rapporteurs expertise and
judgment.134
Still, the rapporteur has to win the consent of his or her colleagues. It is the rap-
porteurs responsibility, along with that of the chief justice, to marshal a majority or
fi nd a broad basis of agreement. In this process skill and personality are important. A
successful rapporteur solicits the views of colleagues and negotiates artfully in order
to prevail in conference. Justices who lack these gift s or the full confidence of their
colleagues are unlikely to see their views command the resolution of cases. If, on the
other hand, the rapporteur is in the minorityand even the most influential justices
occasionally fi nd themselves in this positionhe or she does not necessarily lose all
influence over the case; the rapporteur still has the task of writing the Courts opin-
ion. If the rapporteur combines political sagacity with a deft literary hand, it is possi-
ble to leave a distinct imprint on the fi nished product. A rapporteur who plans to
memorialize his or her strong dissenting views in a dissenting opinion may request
that the writing of the opinion be assigned to another justice, but this rarely hap-
pens.135 If the rapporteur understands the requisites of judicial statesmanship,
heor she will draft an opinion broadly reflective of a wide common denominator
of agreement, often representing a compromise among confl icting constitutional
arguments.136
The production of such opinionsthat is, opinions that reduce discord on the
bench and preserve the Courts moral authority in the public mindis likely to be a
function of the presiding justices capacity for leadership. The presiding justices task
is to guide discussion, frame the questions to which there is to be a vote, and marshal
the largest majority possible behind judicial decisions. Th is leadership is particu-
larly important in the sessions in which opinions undergo fi nal and often meticulous
editing.
The well-settled tradition of the Court is to speak as an institution and not as a
panel of individual justices. There is a significant expectation of collegiality and con-
sensus on the Court, much as in German society generally. Thus, despite the intro-
duction of signed dissenting opinions in 1970, the Court continues to unanimously
decide more than 90 percent of its reported cases. Although the fcca requires
thedisclosure of the identities of the justices participating in every case, authorial
The Feder al Constitutional Court 29
responsibility for unanimous and even majority opinions remains undisclosed. In
the rare instances where the Courts institutional unanimity fractures, the Court is
not required to identify which justices voted with the majority and which voted with
the minority. Only the publication of a signed dissenting opinion, an even rarer de-
parture from the Courts prized institutional unanimity, might provide formal insight
into the Courts voting constellations. In spite of these measures, which strive to
depersonalize the work of the justices, it is common knowledge among informed
observers that the rapporteur in a unanimous decision is the principal author of the
fi nal opinion.
The institutional bias against personalized judicial opinions has tended to mini-
mize published dissents. Since 1971, when they were fi rst allowed, through the end
of2011, there have been only 146 published dissents.137 Dissenting justiceseven if
they have circulated written dissents inside the Courtusually choose not to pub-
lish them or to be identified as dissenters, at least partly out of a sense of institutional
loyalty. The prevailing norm seems to be that personalized dissenting opinions are
proper only when prompted by deep personal convictions. As one commentator
remarked, In their justification, style and intent, dissenting opinions are a departure
from the Courts unanimity. . . . [T]hey can draw attention to the dissenting justice
as a public figure, who may dissent in order to highlight his or her ethical or jurispru-
dential differences with the majority. . . . Such dissenting opinions can endanger the
Courts majority opinion.138 Despite such concerns, there are signs that the Courts
deeply rooted culture of collegiality and consensus may be changing. After a burst of
dissenting opinions from the Court in the years immediately following German re-
unification (thirteen published dissents in 1994 and 1995), the Court seemed to re-
turn to its practice of relative unanimity (six published dissents between 1996 and
2001). Since 2001 the number of published dissents has again increased, to a steady
rate of about three per year. There is also increasing concern about the public, and
often intensely political, profi le some sitting and retired justices have achieved. In
1994 the Courts president, Roman Herzog, led a successful campaign for the federal
presidency, to which the Court raised no objection.139 Two more recent examples
may suggest a strengthening trend. On the one hand, retired Justice Paul Kirchhof
played a sensational role with a brief per for mance as the fi nance minister in Angela
Merkels shadow cabinet during her 2006 campaign as the Christian Democratic
candidate for the chancellorship. On the other hand, the dynamic Justice Udo Di
Fabio drew attention for his respected but atypically outspoken scholarship and social
commentary.

Caseload and Impact. Table 1 presents an overview of the Courts workload during
its fi rst six decades. These statistics, however, do not tell the full story of the business
before the Court or its function in the German polity. In a given calendar year the
Court receives eight to ten thousand letters, notes, or communications from indi-
viduals claiming to be unconstitutionally affected by German authorities. When
these poorly articulated constitutional complaints are obviously inadmissible or
30 chapter one
hopelessly trivial, they are provisionally assigned to the Courts General Registers
Office, which reviews the submissions and responds on behalf of the Court with an
explanation of the legal nature of the matter that was the subject of the submission
and, in light of this clarification, the General Registers view on whether a judicial
decision is at all necessary or appropriate.140 Of course, if the General Registers Office
fi nds that a judicial treatment of the submission is necessary, the case is lodged for
review in the ordinary admissibility process of the appropriate senate. If, in response
to the General Registers clarification, the petitioner writes back demanding to be
heard, his or her submission is lodged with one of the senates.141 Th is process high-
lights the fundamental aim of the General Registers review, which is to give the
petitioner an informed characterization of the submission while underscoring the
petitioners ultimate responsibility for the complaint. In 2011 the General Registers
Office was confronted with 9,128 communications. It classified the great majority of
these (5,983) as petitions or constitutional complaints. In 2011 the General Regis-
ter lodged 1,549 petitions or complaints with the senates for ordinary admissibility
review after having corresponded with the parties. The General Register assigned
another 2,977 submissions to the senates for admissibility review without the benefit
of correspondence between the General Register and the parties. A fi nal tranche of
4,505 submissions being handled by the General Register were closed in 2011 after
its correspondence with the parties. These numbers do not necessarily add up to the
total number of submissions assigned to the General Register in 2011. Th is is because
the General Registers Office often is busy wrapping up communications received in
a preceding year and, concomitantly, often is not able to resolve all the communica-
tions it receives in the same calendar year.142
The General Register thus serves as an important gatekeeper. Th rough it pass only
the most insistent of complainants. Th is screening function is not unproblematic.
Formally, the General Registers explanatory letters, which have the practical func-
tion of turning cases away, do not count as judicial decisions because they are not
issued by judges. Nonetheless, they are often treated as judicial resolutions of the non-
specific communications received by the Court, particularly by the less-sophisticated
recipients of the letters and in the Courts statistics. These problems aside, the work
of the General Register is remarkable in the following respect: through the General
Registers explanatory letters the Court bestows the courtesy of a response on every
person who appeals to it.
As Table 2 shows, constitutional complaints, requests for temporary injunctions,
and concrete judicial review references have made up the bulk of the Constitutional
Courts very heavy docket over the last several years. The General Register, along
with the chamber review process described earlier, seems to have given the Court the
flexibility it needs to cope with its caseload. Just as the General Register carries the
burden for the Court generally, the chamber review process permits a range of more-
or-less objective and frequently undisclosed criteria to influence the summary dispo-
sition of cases and, thus, the resolution of matters that formally lay within the full
senates competence.143 The increased number of legal assistants each justice is able
The Feder al Constitutional Court 31
table 2. Federal Constitutional Courts Caseload

Jurisdictional Category 19512001 2009 2010 2011

Constitutional Complaints 126,962 6,308 6,251 6,036


Concrete Judicial Review 3,147 47 19 35
Requests for Temporary 1,157 148 132 103
Injunction
Disputes between Federal 130 2 3 9
Organs
Abstract Judicial Review 141 2 0 7
Federal State Confl icts 35 0 1 0
Election Disputes 144 1 16 17
Other Proceedings 451 0 0 1
Totals 136,647 6,508 6,422 6,208

Source: Bundesverfassungsgericht, Aufgaben, Verfahren und


OrganisationStatistik fr das Geschft sjahr 2011Eingnge nach
Verfahrensarten, available at www.bundesverfassungsgericht.de
/organisation/gb2011/A-I-4.html.

to employ (now four) works in combination with the General Registers review and
the chamber system to help manage the Courts docket. As Joachim Wieland re-
marked after his ser vice as a legal assistant at the Constitutional Court, the prepara-
tion of the decision concerning the admittance of a constitutional complaint forms,
asa rule, one of the more central tasks of the legal assistants.144 These summary pro-
cesses were viewed as adequately responding to the Courts crushing workload, such
that lawmakers were persuaded at the end of the 1990s, with the Courts blessing, to
forgo granting the Court discretionary case selection authority (freies Annahmever-
fahren) of the kind enjoyed by the U.S. Supreme Court.
The number of concrete review references has not added much to the Courts
heavy docket. The number is surprisingly low in light of a judiciary consisting of
more than twenty thousand judges. The apparent reluctance of judges to refer con-
stitutional questions may be attributed to the strong tradition of legal positivism
that continues to hold sway in the regular judiciary. Jealous of their own limited
power of judicial review, judges usually resolve doubts about the constitutional
validity of laws at issue in pending cases by upholding the laws or interpreting them
so as to avoid questions of constitutionality, thus obviating the necessity of a referral
to Karlsruhe.
The constitutional complaint procedure, on the other hand, has served as an escape
hatch for litigants upset with the per for mance of the judiciary. More than 90 percent
of all constitutional complaints are brought against judicial decisions (Table 3). The
remainder are focused on legislative or executive infringements of basic rights.
32 chapter one
table 3. Sources of Constitutional Complaints, 2011

Lodged With

Filed Against First Senate Second Senate Total

Ordinary Courts
Civil 1,654 771 2,425
Criminal 59 1,412 1,471
Administrative Courts 439 352 791
Social Courts 516 1 517
Finance Courts 105 74 179
Labor Courts 102 0 102
Laws and Regulations 61 32 93
Parliamentary Omissions 12 5 17
European, Federal, State, and 86 109 195
Local Administrative Actions

Sources: First SenateBundesverfassungsgericht, Aufgaben, Verfahren und


OrganisationStatistik fr das Geschft sjahr 2011Erster Senat
Verfassungsbeschwerden, available at www.bundesverfassungsgericht.de
/organisation/gb2011/B -II-2.html; Second SenateBundesverfassungsgericht,
Aufgaben, Verfahren und OrganisationStatistik fr das Geschft sjahr
2011Zweiter SenatVerfassungsbeschwerden, available at www
.bundesverfassungsgericht.de/organisation/gb2011/C-II-2.html .

Nearly all complaints alleging that court decisions have violated the procedural
guarantees of the Basic Law are disposed of by the Second Senate. The First Senate
has jurisdiction over most complaints involving claims to substantive constitutional
rights such as human dignity (Article 1); life, liberty, and personality (Article 2); equal
protection (Article 3); the freedom to choose a trade or profession (Article 12); and
property (Article 14).145 Even though the full senates decide a mere handful of such
casessixteen in 2011the constitutional complaint procedure is now deeply
rooted in Germanys legal culture. The right of any citizen to take a complaint to
Karlsruhe is an important factor in the Courts high rating in public opinion polls
and, perhaps, the chief reason for the development of a rising constitutional con-
sciousness among Germans generally.
Most of the Courts political jurisprudence falls into other jurisdictional categories,
particularly conflicts between branches of government, disputed elections, and federal-
state controversies. Although few in number (see Table 1), the political impact of these
cases is substantial.146 In general, however, the Constitutional Court is most politically
exposed when deciding cases on abstract judicial review. These cases are almost always
initiated by a political party on the short end of a legislative vote in the Parliament or by
the national or a state government challenging an action of another level of government
The Feder al Constitutional Court 33
controlled by opposing political parties. The apparent manipulation of the judicial pro-
cess for political purposes in these cases has led some observers to favor the abolition
of abstract judicial review.147 But those who decry the judicialization of politics
alternatively, the politicization of justicehave not gained much parliamentary sup-
port for the constitutional amendment that would be necessary to abolish abstract re-
view. Equally disconcerting for those who would eliminate the thin line between law
and politics trod by the Court in these cases is the failure of the justices themselves to
mount any opposition to abstract judicial review. Indeed, the elimination of abstract
review would run counter to the view of constitutionalism currently prevalent in the
Federal Republic: the view that the Court, as guardian of the constitutional order, is to
construe and enforce the constitution whenever statutes or other governmental ac-
tions raise major disputes over its interpretation. This observation clears the way for the
following consideration of the Courts role in interpreting the Basic Law and its con-
comitant role in the German polity.

judicial review in operation

A major function of constitutional theory in Germany, as in the United States, is to


resolve the tension between representative democracy and constitutional review in
a way that both justif[ies] and regulate[s] their coexistence.148 Numerous commen-
tators have sought to mark the boundary between legislation and constitutional ad-
judication and to comprehend the fi ne line that the Federal Constitutional Court has
drawn between law and politics.149 The following discussion summarizes the strate-
gies devised to temper judicial activism with restraint, thus preserving the creative
coexistence between democracy and constitutionalism.

Scope of Review. The Federal Constitutional Court renders its decisions largely in
declaratory form. In cases of major importance it may issue a temporary injunction
against a political department of the government, pending the clarification of a con-
stitutional question. Yet, as will be more fully explained in the next chapter, the
Court normally confi nes itself to declaring laws null and void or simply incompatible
with some par ticu lar provision of the Basic Law. The Court is unbound by any case
or controversy requirement, which permits it to remain on the high road of broad-
ranging, principled declarations. In this sense, the Court elevates the status of the
parties. As Justice Hans G. Rupp explained, The only marshal there is to enforce the
Courts ruling is its moral authority, the conscience of the parties concerned, and in
the last resort, the peoples respect for law and good government. It is mainly this
limitation which renders it less objectionable to let a court settle legal issues which
are closely connected with domestic or international politics.150
The Courts precious moral authority is supported by two pillars. First, the Court
carefully observes the governing procedure described in the earlier sections of
thischapter. Second, the Court follows a number of guidelines analogous to certain
34 chapter one
maxims of judicial self-restraint advanced by Justice Brandeis in Ashwander v. Tennes-
see Valley Authority (1936).151 For example, the rule that the U.S. Supreme Court will
not pass upon the constitutionality of legislation in a nonadversarial proceeding has
its equivalent in the Federal Constitutional Courts refusal to decide moot questions.
We have seen that concrete judicial review references must arise within the frame-
work of actual litigation. The justiciability of a constitutional complaint likewise de-
pends on certain attributes of concreteness and particularity. Even cases coming be-
fore the Court on abstract judicial review require real confl icts of opinion within or
among governing institutions.
The Court has also traditionally refrained from anticipating a question of consti-
tutional law in advance of the necessity for deciding it. In short, while every case
properly before the Court involves a constitutional question, the Court usually
refrains from deciding ancillary constitutional issues not yet ripe for decision. For
example, the Court may strike down a par ticu lar federal regulation interfering with
a states administration of federal law but decline to set forth the general conditions
under which federal administrative control would prevail. The Court is also reluctant
to issue temporary injunctions against government agencies about to engage in alleg-
edly unconstitutional behavior, preferring as a matter of strategy to allow the chal-
lenged activity to proceed until the Court has had time to consider the matter on its
merits.152
American legal scholars will recognize other Ashwander maxims in the Courts
general approach to constitutional disputes. A leading principle of judicial review in
Germany obliges the Court to interpret statutes, when possible, in conformity with
the Basic Law (Pfl icht zur verfassungskonformen Auslegung).153 If a statute lends
itself to alternative constructions for and against its constitutionality, the Court fol-
lows the reading that saves the statute, unless the saving construction distorts the
meaning of its provisions. The Court has also stated on numerous occasions that it
will not substitute its judgment of sound or wise public policy for that of the legisla-
ture. Nor will statutes be overturned simply because the legislature may have inac-
curately predicted the consequences of social or economic policy. As the Kalkar I Case
(1978; no. 4.6)154 and the Codetermination Case (1979; no. 10.9)155 make plain, the
Court grants a generous margin of error to the legislature. It will uphold an ordinary
statute unless the statute clearly violates the principle of proportionality (Verhlt-
nismigkeit), the constitutional state principle (Rechtsstaat), or some related princi-
ple of justice such as legal security, clarity, or predictability.
The Court applies these same principles with respect to laws examined in the course
of ordinary civil and criminal proceedings. In addition, the justices have developed
several rules for limiting the number of concrete judicial review referrals from ordinary
courts.156 One such rule requires ordinary courts to certify statutes for review when
they are convinced that the law under which a dispute arises is unconstitutional,157 but
only when a ruling of unconstitutionality would change the outcome of the case. An-
other is that only statutes passed since the ratification of the Basic Law qualify as sub-
jects of concrete judicial review to be decided by the Constitutional Court. Any court
The Feder al Constitutional Court 35
may review and nullify on constitutional grounds legislation, administrative regula-
tions, and local ordinances enacted before 1949. These so-called preconstitutional laws
rank lower than laws passed since 23 May 1949.158 The Federal Constitutional Court
has ruled, however, that such laws are within the scope of its concrete judicial review
procedure when they have been reenacted or substantially amended under the Basic
Law. The appropriate parties may nevertheless challenge an untouched preconstitu-
tional law in an abstract judicial review proceeding.159
Finally, while the Court does not enjoy discretion akin to the certiorari power of
the U.S. Supreme Court, it does have limited control over its docket through the
three-justice chambers. As described earlier in this chapter, this admissibility review
can, to no small degree, be instrumentalized to serve the Courts interests, including
its interest in maintaining its stock of prestige and respect. Still, it would be improper
to portray the Court as unswervingly modest and restrained. It can fi nd its way into
a dispute if it thinks it wise as a matter of constitutional politics. One example of this
should suffice. In 1998 the Court dramatically disregarded the fundamental principle
of self-restraint that holds that a partys withdrawal of a constitutional complaint re-
moves the matter from the Courts jurisdiction. In the German Spelling Reform Case
(1998) the Court noted that the general importance of a case might elevate the objec-
tive role of the constitutional complaint, making it more important to the broader
interpretation and development of constitutional law than to the complainants sub-
jective, individual interest in the protection of his or her constitutional rights. Brush-
ing aside the complainants desire to avoid a ruling in the case, the Court seized the
matter and upheld the reform. In so doing, the Court prompted scholarly criticism
that raised concerns about effectively limiting the scope of judicial review in a
democracy.160

Form and Effect of Decisions. Indeed, on fi rst impression and contrary to the mech-
anisms of judicial restraint mentioned in the previous section, the Courts decision-
making record might suggest a tribunal embarked on a path of relentless activism. By
31 December 2011, as noted in Table 4, the Court had invalidated 640 laws and ad-
ministrative regulations (or par ticu lar provisions thereof) under the Basic Law. Of
these negative rulings, the First Senate decided 372 and the Second Senate 268, more
than 70 percent of which involved provisions of federal law, a percentage explained
by the federations predominant lawmaking role in nearly every major area of public
policy. The large majority of these rulings admittedly involved minor legal provi-
sions, but a fair number featured important public policies in fields such as educa-
tion, taxation, employment, social insurance, and labor law.161
Table 4 does not capture the distinct means by which the Court invalidates laws
and regulations. The Constitutional Court may hold laws or regulations to be either
null and void (nichtig) or incompatible (unvereinbar) with the Basic Law. When held
to be nichtig, the statute or legal norm immediately ceases to operate. When de-
clared unvereinbar, the statute or legal norm is held to be unconstitutional but not
void; it remains in force during a transition period pending its correction by the
36 chapter one
table 4. Invalidated Legal Provisions, 19512011

Filed Against Federal State Total

First Senate 284 88 372


Second Senate 173 95 268
640

Invalidated legal provisions include federal or state laws/regula-


tions declared void, incompatible and void, or only incompatible and
not voided.
Source: Bundesverfassungsgericht, Vom Bundesverfas-
sungsgericht in der Zeit von 1951 bis 31.12.2011 als verfassungs-
widrig beanstandete Normen (nichtig, unvereinbar und nichtig,
nur unvereinbarohne Nichtigerklrung), available at www
.bundesverfassungsgericht.de/organisation/gb2011/A-VI .html .

legislature. The latter approach has been sanctioned by the legislature and is an option
the Court frequently exercises.162
These overrulings, however, are dwarfed by the number of laws or statutory norms
that the Court has sustained over the years. With respect to laws that are upheld, the
Court distinguishes between so-called unobjectionable (unbeanstandete) norms
and those held to be in conformity with the Basic Law. Unobjectionable norms are
those the Court sustains in the normal course of deciding constitutional complaints.
The other category includes statutory provisions questioned in concrete judicial review
cases but sustained in accordance with the principle that requires the Court to inter-
pret a norm consistent with the Basic Law.
The practice of declaring a legal provision unconstitutional but not void is one of
two strategies used by the Court to soften the political impact of its decisions. Th is
fi rst strategy uses admonitory decisions (Appellentscheidungen) to tender advice to
the Bundestag with respect to statutes or legislative omissions that run afoul of the
Basic Law or are likely to do so.163 Th is strategy of declaring a law or practice uncon-
stitutional but not void is designed to prevent the greater hardship or inconvenience
that would flow from the complete voidance of a statute. How long and under what
conditions an unconstitutional but still-viable law can remain in force is a matter the
Court reserves to itself to decide. The Court usually sets a deadline for corrective
legislative action and occasionally directs the Bundestag to adopt a specific solution.
More often the Court lays down the general guidelines within which the legislature
is required to act.164
Under the second strategy, the Court actually sustains a challenged statute but
warns the legislature that it will void it in the future unless the legislature acts to amend
or repeal the law. Cases employing this decisional mode often involve equal protection
claims arising out of statutes that deny benefits or privileges to some persons while
conferring them on others.165 Such decisions are prudential judgments designed
The Feder al Constitutional Court 37
togive the legislature time to adjust to changing conditions or to avoid the political
or economic chaos that might result from a declaration of unconstitutionality. By
resorting to this procedure, the Court keeps the constitutional dialogue going and
furnishes Parliament with the flexibility it needs to work out creative solutions to the
problem under scrutiny.
In some situations, however, when the Court declares a statute unconstitutional
and void, it tenders advice that leaves little discretion to lawmakers so that the
Bundestag is not left in a quandary as to what alternative policy or program would
survive constitutional analysis. In the important Party Finance II Case (1966; no.5.12),
for example, the Court went so far as to tell the Bundestag that federal funding would
have to be provided to minor political parties securing 0.5 percent of all votes cast in
a federal election instead of the 1.5 percent limit previously established by law.166 In
the well-known Abortion I Case (1975; no. 7.4), which invalidated a permissive abor-
tion statute, the Court effectively rewrote the law, which Parliament subsequently
felt obliged to pass.
These rulings, like all of the Courts decisions, including those that declare a statute
or other legal provision compatible with the Basic Law, have the force of law, and as
aconsequence bind all branches and levels of government.167 In the Southwest State
Case (1951; no. 3.1) the Court made it clear that the binding effect of its decisions also
bars the legislature from reenacting a law after it has been declared unconstitutional.
The binding effect principle applies to the actual ruling of a case and to the essential
reasoning or rationale on which it is based. What constitutes essential reasoning,
however, is not always clear. It does not embrace all arguments marshaled in support
of a given result, although it seems to include those basic standards of review in terms
of which a law is sustained or nullified, for these standards bind courts of law in their
own interpretation of ordinary law. The one exception to the binding effect rule is the
Federal Constitutional Court itself. (The rule of stare decisis does not bind the Ger-
man judiciary.) While reluctant to depart from principles laid down in its case law, the
Court will readily do so if convinced that it erred in an earlier ruling. Indeed, as the
Census Act Case (1983; no. 7.9) underscores, constitutional provisions may themselves
take on new significance in the light of changing social conditions.
Whenever the Federal Constitutional Court strikes down a law in whole or in
part, the effect is prospective (ex tunc). Th is rule is qualified, however, by a provision
of the fcca that permits new trials in criminal cases in which a court convicts a
defendant under a subsequently voided statute.168 Statutes declared incompatible
with the Basic Law but not void may continue to be enforced, but only under condi-
tionslaid down by the Constitutional Court. The effect of such decisions on other
courts is substantial; they may not proceed with pending cases arising under such
statutes until the legislature has amended or corrected the statute in conformity
with the guidelines set by the Federal Constitutional Court.
It is important to remember that the Constitutional Courts rulings are exclu-
sively declaratory. The fcca includes a provision that actually bars direct enforce-
ment.169 Its decisions are enforceable through ordinary legislation and judicial
38 chapter one
proceedings. The Courts jurisdiction is also compulsory. It lacks a storehouse of
passive virtues by which it might for prudential reasons avoid a ruling on a consti-
tutional issue.170 Moreover, the Courts declaratory authority is sweeping, for it is at
liberty to range beyond the immediate issue before it and review the constitutional-
ity of any part of a statute challenged in an abstract or concrete judicial review pro-
ceeding. To link judicial power of this character with direct executive implemen-
tation would pose an enormous threat to representative democracy in Germany.
The Courts ultimate legitimacy in the German system, as noted earlier, rests on its
moral authority and the willingness of the political arms of the government to fol-
low its mandates.
But the Court is faced with a dilemma. If it is to perform its steering and integra-
tive role in the German system, objectify the values of the Basic Law, and bring
constitutional normativity into conformity with constitutional reality, it must rule,
according to the modern German version of the constitutional state principle
(Rechtsstaat), on a properly presented constitutional issue, even though such a rul-
ing may thrust it headlong into a politically exposed position. The Court has learned
to cope with this political exposure. For example, in cases involving disputes be-
tween high constitutional organs (i.e., separation of powers, or Organstreit, proceed-
ings) or those brought by political minorities on abstract judicial review, the Court
occasionally makes an ally of time, delaying decision until the controversy loses its
urgency or is settled by political means, prompting the initiating party ultimately
towithdraw the case. Largely because of this tactic, through 2011 the Court has re-
solved 168 of 180 Organstreit proceedings and 163 of 172 abstract judicial review
proceedings.171

Judicial Review and the Polity. As this summary of constitutional review suggests,
and as subsequent chapters show, the Federal Constitutional Court is at the epicen-
ter of Germanys constitutional democracy. The Basic Law is now virtually identical
with its interpretation by the Federal Constitutional Court, remarked Professor
Rudolf Smend on the Courts tenth anniversary.172 By the 1990s Smends view was
conventional wisdom among German public lawyers and constitutional scholars.
Most scholars and legal professionals accept the Court as a legitimate participant in
the larger community decision-making process, a remarkable achievement of post-
war institution building in the Federal Republic. Professor Christian Starck, one of
the Basic Laws leading commentators, described this consensus when he referred to
the Court as the crowning completion of the constitutional state and applauded its
decisive influence upon the development of our constitutional law.173
We may hazard some guesses as to why Germanys legal community accepts the
Court as the fi nal, authoritative interpreter of the Basic Law. First, and most obvious,
the Court functions as a specialized constitutional tribunal with clear authority de-
rived from the constitutional charter itself. Second, a democratic legislature chooses
the members of the Court just as it controls the Courts organization and procedures.
Constitutionally prescribed recruitment procedures all but guarantee that the Court
The Feder al Constitutional Court 39
is staffed by justices who are acceptable to the established political parties and
broadly representative of established political interests, including the interests of the
states as corporate entities within the German system. Th ird, after years of experi-
mentation with various terms of office, including life tenure for justices elected from
the federal courts, Germans settled on a simple, nonrenewable term of twelve years
for each justice, the effect of which is to secure both the Courts independence and a
continuing membership profi le not too unlike that of Parliament itself. Finally, the
Bundestag permitted the introduction of dissenting opinions in 1971a practice
barred in all other German courts.
At the same time, the Federal Constitutional Court, like the U.S. Supreme Court,
often fi nds itself in the eye of a political storm. Despite its democratic legitimacy, or
perhaps because of it, the Court has developed into a fiercely independent institution
and has struck down many statutory provisions and administrative regulations. A
wave of public lectures, newspaper and television commentaries, articles in legal
periodicalssome authored by former justicesand legal monographs have criti-
cized the Court, although for the most part respectfully, for judicializing politics or
politicizing justice.174 Some of these publications take the Court to task for many of
its admonitory decisions, which, in the view of some critics, have turned the Court
into a quasi-legislative institution. The previously mentioned Abortion I, Party Fi-
nance II, and Census Act cases, as well as the East-West Basic Treaty Case (1973;
no.6.1), Numerus Clausus II Case (1977), and the Aviation Security Act Case (2006)
(discussed in Chapter 7) are examples of decisions faulted for improperly exceeding
the limits of judicial power.175 Even more devastating, other critics have charged the
Court with dampening legislative confidence and flexibility. Some argue that the
Parliament legislates too much in the shadow of the Court, fearful that its laws may
run afoul of some judicial order, standard, or admonition.176 These critics point to the
tendency of legislators to tailor their work to anticipated Court decisions and to scru-
tinize constitutional cases for hints on how to shape public policy. If this tendency
does prevail, the Courts role in the polity is not exhausted by an analysis simply of its
formal powers or its case law. The mere presence of the Court would seem to inhibit
certain kinds of legislative activity.
Th is criticism, harsh as it is, nevertheless is predicated on a shared commitment to
the Court as an institution. There is another stream of commentary, however, identi-
fied mainly but not exclusively with neo-Marxist critics, that manifests far less sym-
pathy for the Courts institutional role in German politics. In the eyes of these critics,
the Court serves as a brake on social change and is the main force responsible for
the imposition of a constitutional ideology that sanctifies consolidation and stability,
defends the status quo, and promotes consensus politics. There may be some grounds
for this criticism, for the Court has often used its powerwith prominent exceptions
duly noted in the following chaptersto invalidate reforms regarded as progressive
and liberalizing by large segments of German society.177
Still, the Courts prestige remains high. A series of public opinion polls taken in
recent years shows that it enjoys substantially more public trust than any other major
40 chapter one
political or social institution, including the Bundestag, the military establishment,
the regular judiciary, the television industry, and even churches and universities.178
Th is public trust is also evident among former East Germans who have made appeals
to the Federal Constitutional Court in significant numbers. The faith former East
Germans have placed in the Court is, no doubt, grounded in the experience that, on
a number of occasions mentioned in later chapters, the Court has vindicated consti-
tutional claims originating in the new eastern states. The absence of any major politi-
cal effort to curtail the Courts powers despite its location at the center of many po-
litical storms is perhaps another manifestation of its general support throughout
Germany. Even proposals by respected academic figures to abolish the Courts con-
troversial abstract judicial review jurisdiction,179 which the Court could well do with-
out in light of the political manipulation that often accompanies the invocation of
this procedure, have fallen on deaf ears.
The Federal Constitutional Courts durability is traceable to more than general
public support. The Court owes much to Germanys community of scholars, despite
the acerbic pens of some writers. The literature on the Court, ranging from doctrinal
controversy in professional journals to informed media accounts of par ticu lar cases,
is comparable to the volume and sophistication of commentary on the U.S. Supreme
Court. German commentators form an ever-widening interpretive community orga-
nized around a deepening interest in the Courts work. According to Professor Peter
Hberle, among the most learned of Germanys judicial scholars, the commentators
see themselves engaged in a common enterprise with the Federal Constitutional
Court.180 Their constructive criticism and increasing assertiveness have been stimu-
lated in part by the use of the Courts own dissenting opinions.181 The high-spirited
give-and-take between the justices and the commentators is an important element of
German constitutional law and consciousness. That both Court and commentators
see themselves engaged in actualizing the constitution in the public life of the na-
tion undoubtedly reflects the authoritative role of constitutional commentary in
argumentation before the Court and in the general influence of the professoriat on
and off the bench.

conclusion
Karlsruhe was the capital city of the Grand Duchy of Baden (18061918). During
theWeimar Republic, Karlsruhe continued as the capital of the Republic of Baden
(191833). After the Hitler regimes defeat, the Allies reclaimed Karlsruhe as the
hub of the Occupation Zone shared by American and French forces. Karlsruhe now
has come to be known as the capital of German justice because it is the home of
both the Federal Constitutional Court and the Federal Court of Justice. From its
residence in Karlsruhe, the Federal Constitutional Court enjoys, as we have seen,
a breathtaking mandate, both in scope and depth. Its jurisdiction is unlike any
German court that preceded it and in the time since its creation it has come to be
The Feder al Constitutional Court 41
regarded as one of the worlds most important constitutional tribunals. Symbolic
of the Courts prominence, it was not an exaggeration for Gerhard Casper to sug-
gest in his keynote address at the state ceremony commemorating the Courts fi ft i-
eth anniversary that modern Germany might properly be called the Karlsruhe
Republic.182
2
The Basic Law and Its Interpretation

The Basic Law (Grundgesetz) of the Federal Republic of Germany entered into force
on 23 May 1949. Under the circumstances of a divided nation, the founders decided
to write a basic law rather than a constitution (Verfassung) just as they chose to
call the assembly charged with framing a new constitutional charter a parliamen-
tary council (Parlamentarischer Rat) instead of a constitutional convention (ver-
fassunggebende Versammlung). The founders resolved, in the words of the preamble,
to give Germany a new order to political life for a transitional period (emphasis
added), one that would end with Germanys reunification. On that faraway dayor
so it seemed at the timethe Basic Law would cease to exist. Accordingly, the Basic
Law would expire on the day on which a constitution freely adopted by [all] the
German people takes effect (Article 146).1 When that day fi nally arrived on 3 Octo-
ber 1990, following a remarkable series of events, German unity took place by acces-
sion under a now-superseded version of Article 23that is, within the framework of
the Basic Law itself. The decision to retain the Basic Law as an all-German constitu-
tion and to continue its designation as the Grundgesetz was not unanticipated. Over
the course of the preceding forty years, particularly in the light of the huge body of
decisional law created by the Federal Constitutional Court (Bundesverfassungsgeri-
cht), the Basic Law had come to assume the character of a document framed to last in
perpetuity.
The Basic Law has been amended dozens of times since 1949, but these alterations
changed neither the basic structure of the political system nor the fundamental prin-
ciples on which it was based. The most opportune moment for constitutional change
occurred in 1990 when the Unity Treaty merged the two halves of Germany into a
single nation-state. With their different legal, social, and economic systems, the two
German states might have wished for a fresh constitutional start that would combine
the freedoms of the Basic Law with cherished East German principles of solidarity.
No such change took place, however, and no opportunity was granted to the German
people as a whole to ratify the Basic Law.2 Minor surgery was deemed sufficient
toincorporate East Germanythe German Democratic Republicinto the existing
West German Constitution. Accordingly, the Basic Law was amended to reflect cer-
tain structural and representational changes resulting from West Germanys absorp-
tion of East Germany and its eighteen million citizens.3 To allow the new German
states (Lnder) that once constituted East Germany time to adjust their laws to the
new governing charter, particularly laws relating to abortion, property rights, and
federal-state relations, the treaty temporarily suspended the Basic Laws applicationto
specified East German policies and procedures that would remain in force temporarily.
The Basic Law and Its Inter pr etation 43
These changes, along with several other treaty provisions, including those permit-
ting the dissolution of certain East German institutions, spawned a large body of
constitutional case law. (Special attention will be given in Chapter 10 to decisions
involving property rights and occupational freedom in the context of reunification.)
Although these and other reunification cases represented an important chapter in
Germanys postwar constitutional odyssey, they do not seem to have worked a change
in the fundamental character or interpretation of the Basic Law.

new constitutionalism of the basic law

The Constitution as Supreme Law. The Basic Law marks a radical break with Ger-
manys past. Previous constitutions in the democratic tradition were easily amended
and judicially unenforceable. By contrast, the Basic Law defi nes itself as the supreme
law of the land. As several of its provisions make clear, it controls the entire German
legal order, and Articles 1, 19, 20, and 79 are, for present purposes, particularly rele-
vant. Article 1 (3) declares that the fundamental rights listed in the Basic Law, includ-
ing the inviolable principle of human dignity, shall bind the legislature, the executive,
and the judiciary as directly enforceable law. In reinforcing this provision, Article 20
subjects legislation to the constitutional order (verfassungsmige Ordnung) and
binds the executive and the judiciary to law and justice. In binding executive and
judicial authority to law (Gesetz), the Basic Laws founders had recreated a formal
Rechtsstaata constitutional state (i.e., a state based on the rule of positive law, in
German known as Gesetz- or Rechtspositivismus)but now, unlike in the past, law
would subordinate itself to the suprapositive notion of justice or Recht (loosely trans-
lated as law, right, or justice), one that appeared to include unwritten norms of consti-
tutional significance. In short, the Rechtsstaat, far from being an end in itself, would
now encompass the broader principle of a constitutional state.
Articles 19 and 79 carry the principle of the Basic Laws supremacy even further.
Article 19 (2) bans any law or governmental action that undermines the essential
content of [any] basic right. Article 79 (3), which contains the so-called eternity clause,
bars any amendment to the Basic Law affecting the division of the federation into
Lnder, their participation . . . in the [national] legislative process, or the basic prin-
ciples laid down in Articles 1 and 20. Article 1, as noted, sets forth the principle of
human dignity that the state is obliged to respect and protect, whereas Article 20
specifies the nonamendable structural principles of the state, namely, the principles
of the constitutional, federal, social, and democratic state. The Basic Laws framers
believed that the best way to realize human dignity, then and in the future, was to
endow the concept with the status of a judicially enforceable constitutional right and
to freeze certain principles of governance into the constitutional structure itself.
Finally, the authority conferred upon the Federal Constitutional Court, as well as
upon the judiciary as a whole, assures every person that the Basic Law will prevail
over all legal rules or state actions that would subvert or offend it. Accordingly, Article
44 chapter two
19 (4) grants a judicial hearing to any person whose rights the state violates. Indeed,
recourse shall be to the ordinary courts in the event that some other judicial rem-
edy is not specified by law. Article 80 (1) of the Basic Lawyet another pillar of the
Rechtsstaathelps to protect the constitutional state against the arbitrary decisions
of executive officials. It requires any law delegating power to administrative officials
to specify the content, purpose, and scope of the authorization. In backing up this
guarantee, moreover, any judge may refer questions to the Constitutional Court in
cases where he or she seriously doubts the constitutionality of a statute or regulation.4
Failing these protections, individuals have the further option, once their legal remedies
have been exhausted, of filing a constitutional complaint with the Constitutional Court.5

Human Dignity and Basic Rights. Germanys new constitutionalism has placed
human dignity at the core of its value system. Article 1 (1) declares: Human dignity
shall be inviolable. To respect and protect it shall be the duty of all state authority.
The principle of human dignity, as the Constitutional Court has repeatedly empha-
sized, is the highest value of the Basic Law, the ultimate basis of the constitutional
order, and the foundation of all guaranteed rights.6 Paragraph 2 continues: The Ger-
man people therefore acknowledge inviolable and inalienable human rights as the
basis of every community, of peace and of justice in the world. The personal freedoms
set forth in Article 2 reinforce the principle of human dignity. These include the right
enjoyed by every person to the free development of his [or her] personality and to
the inviolability of the freedom of the person, a freedom that includes the right to
life and physical integrity. As for human personality, its development can be limited
only by the rights of others, the constitutional order, and the moral law. Article
3 (1), the last of these general rights, secures to all persons equality before the law.
The remaining sixteen articles of the bill of rights cover a long list of guaranteed
rights largely associated with the Western political tradition. Several of these articles
are word-for-word reproductions of corresponding articles in the Weimar Constitu-
tion of 1919. The difference is that the Weimar Constitution recognized basic rights as
aspirational rather than as judicially enforceable norms. The notion of inviolable
and inalienable rights is also sharply at variance with the spirit of earlier German
constitutions, for the Basic Law is Germanys fi rst national constitution to recognize
the preconstitutional existence of guaranteed rights. The Basic Law treats such rights,
contrary to the legal positivism underlying the Weimar Constitution,7 as vested in
persons by nature and rooted in the universal concept of human dignity. General law
(that is, positive law) may limit rights, but any such limitation would now be measured
by the higher-law norms of the constitution.
The Basic Laws bill of rights traces its origin to the three major legal traditions
that have shaped German life and law in the postwar era, namely, the traditions of
social democratic, classical-liberal, and Christian natural-law thought. Each of these
traditions has played a major formative role in German legal history; each had sig-
nificant influence on the constitutional assembly of 1949; each fi nds many of its cen-
tral values represented in the text of the Basic Law; and each continues its represen-
The Basic Law and Its Inter pr etation 45
tation in German political life today. The Social Democratic Party (spd) represents
the socialist tradition; the Free Democratic Party (fdp) the classical-liberal tradition;
and the Christian Democratic Union (cdu), together with its Bavarian affi liate, the
Christian Social Union (csu), the Christian natural law tradition. In drafting the
Basic Law, the representatives of these parties shed their historical antagonisms and,
in a remarkable display of concord, drew willingly from the humanistic content of
each tradition to create a constitution that combines the main values of each in a
workable if not always easy alliance.8
At the risk of oversimplifying, one could attribute specific protections to these
traditions. The classical-liberal tradition, for example, was responsible for many of
the individual freedoms listed in several articles of the bill of rights (e.g., the rights to
life and physical integrity [Article 2], equality [Article 3], religious exercise [Article 4],
freedom of expression [Article 5], assembly [Article 8], association [Article 9], pri-
vacy [Article 10], movement [Article 11], and property [Article 14]). The socialist
tradition contributed certain social welfare clauses, including provisions concerning
the duties of property (Article 14) and the socialization of economic resources (Ar-
ticle 15). Finally, the Christian tradition added communal guarantees explicitly favor-
ing the protection of marriage and the family (Article 6 (1)), the natural right of
parents to educate their children (Article 6 (2)), and the institutional prerogatives of
the established churches (Article 140). Philosophically, these traditions might be said
to represent confl icting visions of the common good, yet they converge in the Basic
Law around a common core of beliefs about the nature of constitutionalism and the
dignity of the human person.
The substantive values represented by these traditions are enormously important
in the Federal Constitutional Courts jurisprudence, although in the aftermath of
reunification the traditions of sociality and solidarity that prevailed in East Germany
might be added as a fourth system of values having an influence on Germanys con-
stitutional life. There is no debate in Germany, as there is in the United States, over
whether the constitution is primarily procedural or value oriented. Germans no lon-
ger understand their constitution as the simple expression of an existential order of
power. They commonly agree that the Basic Law is fundamentally a normative con-
stitution embracing values, rights, and duties. That the Basic Law is a value-oriented
documentindeed, one that establishes a hierarchical value orderis a familiar re-
frain in German constitutional case law.

State and Morality. The Federal Republics constitutional system also differs from
past regimes in its refusal to treat individual freedom as emanating from the state itself.
The traditional theory of rights in Germany drew no clear distinction between state
and society. The citizen was an organic part of the state and the state itself was an
agent of human liberation.9 The German Staat and the English state are not equiva-
lent terms. Der Staat is more than the body politic. It represents in Kant the perfect
synthesis between individual freedom and the objective authority of law10 and in
Hegel a moral organism in which individual liberty fi nds perfect realization in the
46 chapter two
unified will of the people: not arbitrary will but rather the power of reason actualiz-
ing itself in will.11 In brief, the Staat is considered by Hegel to be a superior form of
human association, a uniting of individuals and society in a higher synthesis, a reality
in which the individual has and enjoys his freedom, [albeit] on condition of his rec-
ognizing, believing in, and willing that which is common to the whole.12 Some fea-
tures of the Basic Law, particularly its communitarian values, lend themselves to greater
understanding in the light of these traditional German notions of liberty and state,
notions suggestive of aspects of the Aristotelian polis as well as the early American
tradition of civic republicanism.13 Nevertheless, as Leonard Krieger has pointed out, the
founders of the Basic Law, mindful of the Nazi experience, discovered the bankruptcy
of the state as a liberalizing institution. In his monumental study of the German idea
of freedom, Krieger concluded that an attitude now predominates which views the
state as a morally neutral, purely utilitarian organization of public power.14
Kriegers assessment, while generally correct, needs to be qualified. The Basic Law
as a modern twentieth-century constitution is interesting precisely because it subjects
positive law to a higher moral order. Under Article 2 (1) of the Basic Law, for example,
the free development of the human personality must conform to the moral law.
To be sure, the Basic Laws list of fundamental rights protects the ideological plural-
ism and moral diversity of the German people. But the moral law, as just mentioned,
limits some rights as do certain conceptions of the human person and society found
by the Constitutional Court to be implicit in the constitutional value of human dignity.
The Constitutional Court itself rejects the notion of a value-neutral state. Instead, it
speaks of a constitutional polity deeply committed to an objective order of values,15
although, as discussed later in this chapter, what this objective order means or from
whence it derives is the subject of considerable disagreement on and off the Federal
Constitutional Court.

Judicial Interpretive Supremacy. The new constitutionalism not only establishes


the Basic Law as supreme law, it also places the last word as to its meaning in the
hands of the Federal Constitutional Court. The judicially enforceable constitution
may be said to consist of three documents. The fi rst, as already noted, is the un-
amendable constitution established in perpetuity by the eternity clause of Article 79
(3). Indeed, as noted later in this chapter, the Constitutional Court has declared that
an amendment to the Basic Law that would undermine or corrode any of its core
values would be an unconstitutional constitutional amendment. The second is the
amendable constitution, namely, those parts of the written text that can be altered
without affecting the Basic Laws core values. Finally, there are the unwritten or supra-
positive principles implicit in such terms as justice, dignity, and the moral law, terms into
which the Court has imported significant meaning. These governing principles, like
the hierarchical value order the Constitutional Court has inferred from the text of
the Basic Law, are an important part of Germanys constitutional order.
The judicial enforcement of constitutional values is a practice that departs mea-
surably from the traditional judicial role in Germany. Germanys variant of judicial
The Basic Law and Its Inter pr etation 47
review, however, differs from the American. The difference is at once subtle and pro-
found, and it may be summarized as follows: Whereas American constitutionalism
has historically entailed a creative interaction between the constitutional text and
evolving political practice, German constitutionalism tends to place greater empha-
sis on the capacity of the formal text to influence political practice. Abstract judicial
review, discussed in the previous chapter, is one manifestation of this tendency. Ab-
stract review underscores the sovereignty and universality of constitutional norms
and affi rms the essential unity of the constitution, a concept of constitutionalism
seemingly related to the old notion of the Rechtsstaat that envisioned the state or
polity as a purely juristic construction.16 In short, while judicial review under the
Basic Law represents a major break with the legal tradition of the Rechtsstaat, it nev-
ertheless continues to manifest elements of that tradition.
Perhaps the following remarks will help to clarify this point. The American Con-
stitution has historically served as a framework for the process of government. While
the constitutional text and the polity have influenced one another, the bond between
them is far from perfect.17 American pragmatism leaves a lot to chance and circum-
stance, shows little distress in constitutional ambiguity, and refuses to insist on the
application of constitutional morality in all particulars. The Supreme Court has de-
veloped a battery of techniques to avoid constitutional decisions in certain cases and
even to permitunder the aegis of the political question doctrine, the case or con-
troversy requirement, and other devices for avoiding decisioncontraconstitutional
developments within the polity. The American legal mind is comfortable with the
uncertainty that often prevails when, for prudential reasons, the Supreme Court de-
clines to consider constitutional issues. Thus, the written constitution is far from
coextensive with the American polity.
In Germany, on the other hand, the Basic Law was designed not only to create a
system of governance but also to foster a secure and preferred way of life.18 German
constitutional scholars often speak of the steering, integrating, and legitimizing
functions of the constitution, as if to suggest a more perfect bonding between text
and polity.19 They insist on the strict enforcement of the Basic Law in all particulars,
for to do otherwise would be to sanction a lawless society. In brief, there is less toler-
ance of uncertainty or ambiguity in constitutional matters. Confl icts between text
and polity cause crises in the German public mind and commotion among legal
scholars and others concerned with the proper relationship between the normativ-
ity of the constitution and the existentiality of political reality.20
Th is complex of attitudes has implications for judicial review. Abstract questions
of constitutional law matter in Germany, in contrast to the Holmesian viewa
predominantly American perspectivethat general propositions do not decide con-
crete cases. Questions of constitutionality that do arise in the course of enacting legis-
lation must be confronted, not avoided; there is, thus, a tendency to have the consti-
tutional correctness of every important and controversial statute scrutinized by the
Constitutional Court in Karlsruhe. The feeling exists that if legislation, however
trivial or noncontroversial, is unconstitutional, then it is contrary to the Rechtsstaat
48 chapter two
and therefore bad for the body politic. In this spirit, Karl Heinrich Friauf has writ-
ten that constitutional interpretation in Germany forms a part of what we might
call the eternal struggle for the self-realization of constitutional law in the life of the
community.21

nature of the polity

Article 20, as already noted, sets forth the fundamental, nonamendable principles of
the new republic. Beyond describing the polity as a democratic and social federal
state, paragraph 2 decrees that all state authority emanates from the people and
shall be exercised by the people through elections and voting and by specific legisla-
tive, executive, and judicial organs. The Basic Law thus creates a representative de-
mocracy undergirded by a system of separated powers. To ensure the realization of
these values at all levels of government, Article 28 (1)known as the homogeneity
clausedeclares that state and local governments must conform to the principles of
republican, democratic, and social government based on the rule of law.22 Accord-
ingly, Articles 20 and 28 advance several conceptions of the state that have achieved
authoritative status in German constitutional law. These include the constitutional
state (Rechtsstaat), the social state (Sozialstaat), the federal state (Bundesstaat), and
the principle of democracy (Demokratieprinzip). The party state (Parteienstaat), a
jurisprudential offshoot of the democratic principle, should be added to this mix.

Constitutional State (Rechtsstaat). The term Rechtsstaat has no exact equivalent in


English. Although best translated as constitutional state, this book also employs
where appropriate the more common renderings of law state, rule of law, or a state
governed by law. In its older and newer incarnations the Rechtsstaat embodies more
than the idea of a mere government of laws.23 As developed originally in the nineteenth
century, the Rechtsstaat was a state governed by the law of reason, one that insisted
on the freedom, equality, and autonomy of each individual within the framework of a
unified legal order defined by legislation and administered by independent courts of
law. The traditional Rechtsstaat, while emphasizing the importance of formal liberty,
was indifferent to whether the government of the day, as opposed to the timeless Staat,
was monarchical, aristocratic, or democratic. It was not until later, toward the end of
the nineteenth century, when the constitutional theorists Otto von Gierke and Rudolf
von Gneist exercised great influence, that the Rechtsstaat began to integrate state and
society and to proclaim the unity of law and the state. Although bound by laws ad-
ministered by independent courts, the state took on a life of its own, undermining
the individualistic rationale of the earlier Rechtsstaat. Finally, in the early twentieth
century and during the Weimar Republic, the concept of the Rechtsstaat was increas-
ingly associated with legal positivism. Written law was supreme law because it reflected
the popular will, which was the ultimate basis of the Rechtsstaats traditional legiti-
macy. In this system, the courts had the duty to uphold the law as defined by statute
The Basic Law and Its Inter pr etation 49
and to ensure that all state activity was conducted according to the supreme legislative
will, leaving little room for the exercise of constitutional judicial review.
The Basic Law did not completely abandon the principles of the old Rechtsstaat.
But the Basic Law now uses the term law (lex) in the sense of both Gesetz (statutory
law) and Recht (law or right).24 Recht, however, may also be translated as justice.
As stated in Article 20 (3), the executive and the judiciary are bound by law and jus-
tice (Gesetz und Recht), just as legislation is subject to the constitutional order.25
It bears repeating that the constitutional order of the Basic Law has been described
as a value-oriented legal system. The Basic Law not only subjects law to the concept
of justice; it also creates a fundamental system of values in terms of which all legisla-
tion or other official acts must be assessed. Ernst-Wolfgang Bckenfrde, a former
justice of the Federal Constitutional Court, puts it this way:
The logic of thinking about values and justice demands that the constitution con-
ceived along the lines of the material Rechtsstaat should lay claim to an absolute
validity extending to all spheres of social life. It thus sanctions certain basic political-
ethical convictions, giving them general legal validity, and discriminates against
others that run counter to them. It no longer guarantees liberty unconditionally by
way of formal legal demarcation; it does so only within the fundamental system of
values [Wertgrundlage] embodied in the constitution.26
These values, like the concept of justice, as Bckenfrde suggests, may trump liberty
when they confl ict. Under the U.S. Constitution, on the other hand, liberty would
often trump valuesfor example, the value of human dignity. In short, the social
Rechtsstaat is not only governed by law; it is also perceived as a substantive charter of
justice. Positive law must conform to the Basic Laws order of valuesas distin-
guished from guaranteed individual rightsinforming the constitution as a whole.
As already indicated, this expanded notion of the Rechtsstaat includes the judicial
review of the constitutionality of laws and other governmental actions. As the highest
institutional expression of the constitutional state principle, the Constitutional Court
serves as the ultimate guardian of the Basic Law. Thus, any branch or level of govern-
ment that violates the constitution or refuses to carry out a constitutional duty can be
called to account in a proper proceeding before the Constitutional Court. Addition-
ally, the Basic Law authorizes the Court to review the constitutionality of laws and to
hear complaints from ordinary citizens claiming a violation of their fundamental
freedoms by any agency or branch of government. These powers, together with the
ability of all other judges to refer constitutional questions to the Court for resolution,
impart additional normative force to the constitution.

Social State (Sozialstaat). As judicially defi ned, the social state clause of Article 20
obligates the government to provide for the basic needs of all Germans. Th is com-
mitment, however, does not mean that every social benefit conferred by law is man-
dated by the principle of the social state. Whether par ticu lar policies such as family
allowances or educational benefits are constitutionally required by the principle of
50 chapter two
the social state is a matter of dispute among constitutional scholars,27 a dispute that
has reached a new level of intensity in reunified Germany and under the impact of a
globalized market economy. The concept of the social state, like that of the Rechtsstaat,
has good pedigree in German constitutional thought.28 Its roots lie deep in the old
Lutheran notion that, while the people owe allegiance to the prince, the prince in
turn is bound to see to the welfare of his subjects. Th is idea fi nds its most prominent
modern expression in the extant social security and protective labor legislation of the
Bismarckian era. Backed by strong socialist influences and supported by Christian
democracy, the social state as a concept of political order found full expression in the
Weimar Constitution. Today even neoliberal, market-oriented advocates, not to
mention Christian Democrats schooled in Catholic social thought, regard the Sozi-
alstaat as an important ingredient of Germanys constitutional tradition.29
If there was any doubt about this important ingredient of German constitutional-
ism, the Federal Constitutional Court put it to rest in the recent Lisbon Treaty and
Hartz IV cases. In Lisbon (2009; no. 6.6), the Court described the social state as an
essential part of what it described as Germanys constitutional identity, a distinc-
tiveness that cannot be sacrificed to any other value of the Basic Law. In Hartz IV
(2010), the Court struck down a reform of the Federal Social Assistance Act because
the Parliament (Bundestag) failed to consistently apply its methodology for estab-
lishing the subsistence minimum, the level of public support necessary to be con-
sistent with the principle of human dignity.30
Nevertheless, a lively academic debate over the relationship between the Sozial-
staat and the Rechtsstaat continues to engage German constitutional theorists. For-
mally conceived, the Rechtsstaat emphasizes the crucial importance of individual
liberty, the right to choose ones trade, and the right to acquire and dispose of ones
property. At what point do the demands and arrangements of the Sozialstaat begin to
undermine the Rechtsstaats liberty-securing values and structures? German views
range from the conservative perspective of Ernst Forsthoff, who argued that the Basic
Law constitutionalizes an individualistically based, market-oriented, free enterprise
economy, all the way to the left-wing viewone shared today by many former East
Germansthat the Sozialstaat constitutionally requires major redistributive socio-
economic and tax policies.31 The Federal Constitutional Courts perspective, covered
at length in Chapter 10, falls between these poles.

Federal State (Bundesstaat). The Basic Law defi nes Germany as a federal state and,
as Article 79 (3) [3] stipulates, federalism is an unamendable feature of the Basic Law.
Federalism as a constitutional principleand requirementis taken up in Chapter 3.
It suffices here merely to mention that, in accordance with Article 79, states may
change their boundaries and even merge with one another but only when this is ac-
complished by a federal law and confi rmed by referenda in the affected areas. Article
29 sets out these terms for territorial reorganization. Accordingly, Lnder may be re-
defi ned or rearranged but not consolidated or transformed into a unitary polity.
What is unamendable under Article 79 (3) is the division of Germany into territorial
The Basic Law and Its Inter pr etation 51
units or Lnder and their participation in the national legislative process. Federalism
is part of Germanys ancestral heritage and arguably one of the roots of German
democracy.
Prior to 1849, and unlike Britain, France, and Spainall unitary nation-states
Germany consisted of a collection of territorial governments, principalities, and free
cities with their distinctive political, cultural, and religious or secular traditions.
Little wonder the national constitutions of 1849, 1871, and 1919 created federations.
The Frankfurt Constitution of 1849 converted the kingdoms and estates of the old
German Confederation into a federal constitutional monarchy. The Imperial Con-
stitution of 1871, designed to overcome the particularism and fragmentation of the
North German Federation in the wake of an emerging capitalist economy, consoli-
dated twenty-five states and city-states under Prussian leadership. The Weimar Con-
stitution, fi nally, after continuing territorial adjustments, established Germanys fi rst
democratic republic consisting of seventeen states. Given this history of federated
governmentsand the priority the Allies gave to reestablishing local and state gov-
ernments in the immediate aftermath of the warWest Germanys constitution mak-
ers would surely have created a democratic federal republic even if the Allies had not
insisted on it. But as the materials in Chapter 3 show, the precise nature of Germanys
new federal union remains a matter of some dispute among constitutional scholars.

Democratic State (Demokratieprinzip). The Basic Law defi nes Germanys political
system as democratic in no fewer than eight of its provisions. Beyond these provi-
sions, the principle of democracy comes into play in articles and clauses relating to
elections, voting rights, political parties, freedom of speech and press, parliamentary
representation, and the right to form independent associations. Each of the consti-
tutional provisions defi ning or protecting these values and institutions has been the
subject of repeated disputes before the Federal Constitutional Court. (The cases
featured in Chapter 5, Political Representation and Democracy, incorporate the
jurisprudence of democracy flowing from these disputes.) The democratic principle
operates mainly through the institutions mentioned below in the section on state or-
ganization. It suffices here to note that the Basic Law provides for a system that is
both parliamentary and representative, excluding all forms of direct democracy at
the national level.
One distinctive feature of German democracy is its intolerance of activities or
ideologies opposed to or subversive of the free democratic basic order. These terms
appear in no fewer than four articles of the Basic Law. Each permits restrictions on
the exercise of certain rights if actively used to combat democracy. Article 21 (2) is
among the most important of these provisions. It declares: Political parties that, by
reason of their aims or the behavior of their adherents, seek to impair or abolish
the free democratic order or to endanger the existence of the Federal Republic of
Germany shall be unconstitutional. Accordingly, Germany has been described as
a militant democracy (streitbare Demokratie or wehrhafte Demokratie), terms
adopted from the pre-war work of the exiled German jurist Karl Lwenstein by the
52 chapter two
Federal Constitutional Court in the famous Communist Party Case (1956). Article 18
is yet another expression of the constitutional principle that democracy is entitled to
defend itself against its internal enemies. According to this provision, any person
who abuses the basic freedoms of speech, press, teaching, assembly, association, or
property in order to combat the free democratic basic order forfeits these rights.
Indeed, under Article 20 (4), even ordinary Germans have the right to resist any
person attempting to do away with this constitutional order, should no other remedy
be possible.32
The notion of a militant democracy differs radically from what has been called the
value neutrality of the Weimar Constitution. Freedom and democracy are para-
mount values of the free, democratic, basic order and their defense is the paramount
duty of public officials and citizens alike. To minimize any abuse of power conferred
by Articles 18 and 21, the Basic Law authorizes only the Federal Constitutional Court
to order the forfeiture of rights or to declare parties unconstitutional. During the
Weimar period the president of the Republic could ban parties and curtail rights on
his authority under the emergency provisions of Article 48. Under the Basic Law, by
contrast, the Constitutional Court retains its jurisdiction even during a state of
emergency, including the authority to determine the forfeiture of basic rights under
Article 18. In short, the Basic Law joins the protection of the Rechtsstaat to the prin-
ciple that democracy is not helpless in defending itself against parties or political
movements bent on using the constitution to undermine or destroy it.

Party State (Parteienstaat). The Basic Law does not explicitly describe the Federal
Republic as a party democracy but the Federal Constitutional Court has done so. In
a departure from tradition as radical as judicial review itself, Article 21 of the Basic
Law permits the free establishment of political parties, virtually certifying them as
the chief agencies of political representation. Additionally, and in language recalling
an older German theory of the state, Article 21 (1) declares that political parties shall
participate in forming the political will of the people.33 Popu lar sovereignty is to be
achieved through political parties competing in free and equal elections. In an effort
to secure genuine majority rule, the constitution requires parties to organize them-
selves democratically and to account publicly for the sources of their funds. By char-
acterizing Germanys democracy as a Parteienstaat, the Constitutional Court has
stamped political parties with a quasi-constitutional status. In particular, it treats parties
as constitutional organs when engaged in election campaigns. Accordingly, as organs
constitutionally empowered to form the peoples will for representational purposes, they
may vindicate their electoral rights in Organstreit proceedings before the Court. Their
status as constitutional organs for electoral purposes prompted the Court early on to
recommend the public funding of political parties, a suggestion the Parliament took up
almost immediately, leading to a series of important party finance cases decided by the
Court between 1966 and 1993, several of which are featured and discussed in Chapter 5.
Article 38, which provides for the general, direct, free, equal and secret election of
parliamentary delegates, pulls in the opposite direction, namely toward an older, rep-
The Basic Law and Its Inter pr etation 53
resentative theory of democracy. Members of parliament, Article 38 declares, shall be
representatives of the whole people, not bound by orders or instructions, and respon-
sible only to their conscience. Here a natural-law principleconscienceintrudes
to limit the party loyalty implied, perhaps even mandated, by Article 21. The federal
structure, like the theory of party responsibility, also tempers majority rule, for Land
governments enjoy a corporate right to participate in the national legislative process
and often exercise that right to delay or refuse their consent to bills passed by the
Bundestag. In the end, the constitution seems ordained not only to achieve, under the
rubric of majority rule, some degree of correspondence between public policy and
popular will, but also, as a consequence of its federal structure, to serve as an instru-
ment of political conciliation, consensus, and cohesion.34

State Organization. Further details on the organization of the state in Germany will be
discussed in Part II on governmental structures and relationships. It suffices here simply
to say that the Basic Law recreates most of the governmental structures established by
the Weimar Constitution except for eliminating those crippling defects that facilitated
Hitlers rise to power. The Basic Laws major structural changes were designed to stabi-
lize German democracy. As in the Weimar Republic, authority remains divided among
executive, legislative, and judicial institutions, but their relationshipor better, the
constitutions system of checks and balanceshas changed. Executive authority is still
shared by a federal president (Bundesprsident), a federal chancellor (Bundeskanzler),
and a cabinet of federal ministers. Together, the chancellor and his or her cabinet are
referred to as the federal government (Bundesregierung). The role of the president,
however, is largely ceremonial. And since presidents are no longer popularly elected, as
in the Weimar Republic, but rather indirectly elected by a federal convention, they are
no longer in political competition with the chancellor.
The key executive official is the chancellor, the leader of the largest party in Parlia-
ment, who determines the general guidelines of public policy. In addition, the chan-
cellors position is far more secure than it was during the Weimar Republic. The pop-
u lar legislative chamber, the Bundestag, whose members are elected for a four-year
term, may not dissolve itself nor can it be dissolved by the chancellor. The Bundestag
may dismiss the chancellor only by electing a successor, an innovation known as
the constructive vote of no confidence. If a chancellor loses a vote of confidence on
Parliaments initiative and Parliament fails simultaneously to elect his or her succes-
sor by the required majority vote, the chancellor remains in office as the head of a
minority government. Article 68 provides the only path toward Parliaments disso-
lution. It authorizes the president to dissolve Parliament, but this power too is cir-
cumscribed. It requires that if the chancellor initiates a vote of no confidence and
loses by a majority vote of Parliaments members, only then may the chancellor re-
quest that the president dissolve Parliament and call for new elections. But the latter
may not do so if he or she independently concludes that the chancellor has engi-
neered or orchestrated a no-confidence vote merely to hold a new election in the
hope of increasing his or her parliamentary majority. What is more, each of these
54 chapter two
political decisions is subject to review by the Federal Constitutional Court. (See
Chapter 5 for a discussion of the two constitutional cases involving Article 68.)
The Basic Law vests legislative power in the Bundestag and the Federal Council of
States (Bundesrat). But the two chambers are not equal. The popularly elected Bun-
destag is the main policy-making organ of the national government. The Bundesrat
is the organ through which Land governments participate in the national legisla-
tive process. Constitutionally, the Bundestag must consult the Bundesrat on all the
policies it enacts, but the latters consent is required on proposed constitutional
amendments, policies affecting the local administration of federal law, and other
matters of special interest to the Lnder, including laws on apportionment of ex-
penditures and tax revenue. The Bundesrat also elects one-half the members of the
Federal Constitutional Court. The two chambers are not comparable to the U.S.
Senate and House of Representatives. First, the Lnder do not have equal represen-
tation in the Bundesrat. Each states representation, ranging from three to six mem-
bers, depends on its population. Second, each Lands slate of votes in the Bundesrat
must be cast as a block, a procedure that arguably gives the Lnder as corporate
entities much more leverage on certain issues than the American states enjoy in the
U.S. Senate.
Given what has already been said about courts and judges in the previous chapter,
we need not dwell in this space on the powers and organization of the judiciary, ex-
cept to say, once again, that German judicial organization is very different from the
American system. Germany, unlike some other federal systems, does not have a dual
system of federal and Land courts. The German judicial system is specialized and
unitary. It features separate hierarchies of administrative, social, fi nance, and labor
courts as well as ordinary courts of civil and criminal jurisdiction. All courts of fi rst
instance and intermediate courts of appeal in each area of specialization are Land
courts, whereas all fi nal courts of review in each of the subject-specific hierarchies
are federal tribunals. The Federal Court of Justice (Bundesgerichtshof), the succes-
sor to Weimars Imperial Court of Justice (Reichsgericht), is the last court of appeal
in ordinary civil and criminal matters. Although all fi rst instance and intermediate
courts are established and staffed by the Lnder, federal law defines their structures
and procedures along with the qualifications and legal status of their judges. Finally,
the Federal Constitutional Court stands apart from and independent of all these
courts, serving not only as the guardian of the constitutions values but also as the
rudder that guides and directs the political system as a whole.
In sum, the Basic Law builds on and strengthens older structures and practices in
Germanys constitutional tradition. Popular sovereignty, affi rmed once again, now
manifests itself in representative institutions rather than plebiscites; political parties,
fortified by a new electoral system combining single-member districts with propor-
tional representation, organize these institutions in the public interest; a strong chan-
cellor, unremovable save by a constructive vote of no confidence,35 stabilizes the gov-
ernment; the basic structure of federalism, now beyond the power of the people to
amend, is established in perpetuity; separation of powers now includes the judicial
The Basic Law and Its Inter pr etation 55
control of constitutionality; and, fi nally, majority rule is overlaid with a complex
system of checks and balances, not to mention the indirect election of the federal
president.

theories of the constitution

The Federal Constitutional Courts approach to constitutional interpretation needs


to be understood within the context of Germanys civilian legal culture, one inviting
brief comparison with the American common-law tradition. The following descrip-
tion of judicial decision making in Germany and the United States oversimplifies a
more complex reality, but it nevertheless helps to capture the spirit of the judicial role
in the two countries. The German legal mind, schooled historically in the tradition
of conceptual jurisprudence (Begriffsjurisprudenz) or legal positivism, tends to envi-
sion law as a legislatively created, self-contained, rational, deductive system of rules
and norms. Positing a sharp separation between law and moralsbetween the is
and the oughtBegriffsjurisprudenz seeks to create a science of law marked by its
own internal standards of validity. It strives to separate law from the domains of poli-
tics, psychology, and sociology.36 Law, in short, rests on an independent foundation
of reason and logic. In this mode of legal thought the judge does little more than
mechanically apply fi xed rules of law. Accordingly, fidelity to law as written is the ju-
diciarys major commitment.37
The American conception of law, by contrast, derives its spirit from the common
law, the essence of which is captured in Oliver Wendell Holmess famous aphorism,
The life of the law has not been logic, it has been experience.38 Like Holmes, Ameri-
cans generally have understood law as a pragmatic enterprise. Correspondingly, they
understand the concept of judicial decision making as an inductive process of reason-
ing open to extralegal influences and responsive to social change. Common-law judg-
ing, at least as it has emerged in the twentieth century under the influence of the realist
school of jurisprudence, is more than simply applying the law as written. Its task is
to solve problems, often by appealing to societal values and the perceived needs
of public policy. Historically, common-law judges have understood themselves as
engaged in a creative process, one driven, as Cardozo wrote, not only by the directive
force of precedent, but also by history and tradition.39 Law, particularly in nineteenth-
century America, was mainly judge-made law, and one of its main purposes was at
once to limit the state and to promote the release of private entrepreneurial energy.40
Code-law reasoning in Germanys civil-law tradition, like common-law reasoning in
the United States, has exerted a powerful influence on the development of public law,
including constitutional law. If the spirit of American public law is symbolized by
figures like Holmes, Pound, Cardozo, Llewellyn, Frank, and Hand,41 the spirit of
German public law is personified by legal theorists such as Jellinek, Anschtz, Laband,
Puchta, Radbruch, and Kelsen.42 Similarly, if American constitutional jurispru-
dence locates its indigenous roots in the realism of Madison, Hamilton, and Wilson,43
56 chapter two
German constitutional jurisprudence fi nds its compass in the idealistic rationalism
of Hegel, Kant, and Fichte.44 Th is remark may blur important distinctions among
German schools of legal thought, yet the one notion that emerges relatively intact, in
contrast to the United States, is the reality and ubiquity of the state. German legal
theorists, sometimes to a calamitous degree, have commonly assumed that law and
justice would thrive solely within the bosom of that near-perfect society known as
the state.
The Basic Law represents a major break from this tradition. It does not regard the
state as the source of fundamental rights. The core of individual freedom, like human
dignity itself, is regarded as anterior to the state. Thus, law and justice, as we have
seen, now measure the validity of governmental actions, including judicial decisions.
Inalienable rights, justice, values, and other such notions arguably present in the
Basic Law militate against the methodology of legal positivism. And yet, for all that,
the analytical approach to judicial reasoning rooted in Begriffsjurisprudenz has had
a lasting influence throughout Europe, including Germany.45 German constitutional
scholars, no less than the justices of the Federal Constitutional Court, have made
significant attempts to build a theory of judicial decision based on reason and logic.
In discussing these contrasts between legal cultures, we should observe that in
both Germany and the United States, countervailing theories of law have always
challenged the dominant mode of legal thought. In Germany, for example, the extent
to which judges were free to depart from the will of the legislature was a central issue
in legal argument during much of the nineteenth century. Begriffsjurisprudenz,
while it predominated during this period, had to defend itself against the historical
school of jurisprudence.46 By the same token, in the early years of the twentieth cen-
tury the free law school of judicial interpretation and the Interessenjurisprudenz of
Philipp Heck and Rudolf von Ihering assailed the prevailing school of legal positiv-
ism.47 Then too, during the Weimar Republicagainst the backdrop of the continu-
ing revolt against legal positivismneo-Hegelian, neo-Kantian, and phenomeno-
logical schools of legal thought were developing new theories of law and judicial
interpretation in an effort to overcome the is-ought dichotomy at the heart of legal
positivism.48 Finally, after World War II, natural-law theory, breaking out afresh
from both Catholic and Protestant sources, has endeavored to depose legal positiv-
ism.49 In the United States, pragmatic jurisprudence had to face similar challenges,
ranging from those of David Dudley Field, Christopher Langdell, and Owen Roberts,
each of whom tried to build a true science of law or judging, to those of the value-
oriented natural-law moralists and fundamental rights objectivists of our own
time.50

Structural Unity of the Basic Law. In its fi rst major decisionthe Southwest State
Case (1951; no. 3.1)the Federal Constitutional Court underscored the internal co-
herence and structural unity of the Basic Law as a whole.51 No single constitutional
provision may be taken out of its context and interpreted by itself, declared the
Court. Every constitutional provision must always be interpreted in such a way as to
The Basic Law and Its Inter pr etation 57
render it compatible with the fundamental principles of the constitution and the in-
tentions of its authors.52 Justice Gerhard Leibholz, commenting on Southwest State,
elaborated: The Court holds that each constitutional clause is in a defi nite relation-
ship with all other clauses, and that together they form an entity. It considers cer-
tain constitutional principles and basic concepts to have emerged from the whole of
the Basic Law to which other constitutional regulations are subordinate.53 In one
important case the Court alluded to the unity of the constitution as a logical-
teleological entity, a concept traceable to Rudolf Smends integration theory of the
constitution.54 Smend regarded the constitution as a living reality founded on and
unified by the communal values embodied in the German nation. In Smends theory,
the constitution not only represents a unity of values, it also functions to further
integrate and unify the nation around these values.55
Yet the unity the Court has found in the constitution does not imply a single grand
theory of the polity that pervades the Basic Law as a whole. Nor does it imply the ab-
sence of competing interests or values. What it does imply is the need for reconciling
these interests or values. The German states constitutional design is multifaceted; as
noted earlier, the Basic Law defi nes the political system as federal, social, and demo-
cratic, just as Germanys democracy has been judicially characterized as a liberal and
militant party state. The liberalism and militancy of German democracy has in turn
been linked to the Basic Laws principle of human dignity. The interpretive problem
is to keep each of these visions of the statefederal, democratic, social, liberal, and
party-directedalive and in some kind of creative balance, so that a judicial empha-
sis on any one dimension within a par ticu lar context does not result in the erosion or
neglect of another in some other context.

Objective Order of Values. As already noted, the Constitutional Court envisions


the Basic Law as a unified structure of substantive values.56 The centerpiece of this
interpretive perspective is the concept of an objective order of values, one that de-
rives from the gloss the Constitutional Court has put on the constitutional text. The
Court had originally emphasized the negative aspect of rights. But in one of its early
decisions the Court remarked, There is no doubt that the main purpose of basic
rights is to protect the individual against the encroachment of public power . . . but it is
equally true that the Basic Law erects an objective order of values in the section on
basic rights. Th is system of values, which centers on the dignity of the freely develop-
ing person within society, must be seen as fundamental to all areas of law.57 Accord-
ingly, the constitution incorporates the basic value decisions of the founders, the
most basic of which is their choice of a free democratic basic order buttressed and
reinforced by basic rights and liberties, all of which are crowned and informed by the
master principle of human dignity. These basic values are objective because they are
said to have an independent reality under the constitution, imposing on all organs of
government an affi rmative duty to see that they are realized in practice.
The notion of an objective value order may be stated in another way. Every basic
right in the constitutionfor example, freedom of speech, press, religion, association,
58 chapter two
and the right to property or the right to choose ones profession or occupationhas
a corresponding value. A basic right is a negative right against the state, but this right
also represents a value, and as a value it imposes a positive obligation on the state to
ensure that it becomes an integral part of the general legal order.58 One example may
help illuminate this complex principle: The right to freedom of the press protects a
newspaper against any action of the state that would encroach on its independence,
but as an objective value applicable to society as a whole, the state is duty-bound to
create the conditions that make freedom of the press both possible and effective. In
practice, this means that the state may have to regulate the press to promote the value
of democracy. For example, it might enact legislation to prevent the press from be-
coming the captive of any dominant group or interest.
In addition, the Court speaks of a ranked order of values, one in which human
dignity tops the ranking with the general values of liberty, equality, personal inviola-
bility, and physical integrity following close behind. The application of this value order
to specific situations, however, has been a source of confl ict on and off the bench.59
For many of the critics, an appeal to objective values is little more than open-ended
judicial decision making disingenuously posturing as rationality.60 As Clarence Mann
has written, It harbors the illusions of determinate norms in the fact [sic] of unar-
ticulated value premises and of judicial neutrality aloof from the creative search for
normative content; yet, in contrast to Begriffsjurisprudenz, it does not necessarily
exclude considerations of political reality in the construction and application of the
constitution.61 In short, it satisfies the traditional German yearning for objectivity
in the sense of separating law from politics, yet tolerates the search for the social and
moral purposes behind constitutional provisions.
Relatedly, the Constitutional Court has occasionally spoken of certain supraposi-
tivist norms that presumably govern the entire constitutional order. In an early case,
decided in 1953, the Court, recalling the Nazi experience, rejected value-free legal
positivism.62 The First Senate, at the time presided over by President Josef Wintrich,
an influential Catholic jurist with roots in the Thomistic tradition, appeared to accept
natural law as an independent standard of review.63 Since then, particularly when in-
terpreting the Basic Laws equality clauses, the Court has tended to speak in terms of
justice rather than in the language of natural rights.64 Some constitutional cases,
however, appear to defend such principles on a theory of legal positivism rooted in
specified constitutional rights of lower and higher rank. In this reckoning, the value
order of the Basic Law is an essential part of the positive legal order itself. Still, it is not
altogether clear from the Courts jurisprudence whether the suprapositivist norms
underlying the constitution exist outside the text, reflect the express values of the text,
or account for the hierarchical order the Court has discerned among the values constitu-
tionalized by the framers. Whatever the answer, the hierarchical system of values found
to inhere in the Basic Law is itself largely a product of constitutional interpretation.

Unconstitutional Constitutional Amendments. As noted earlier in this chapter,


the Federal Constitutional Court has empowered itself, under Article 79 (3), to review
The Basic Law and Its Inter pr etation 59
the substance of constitutional amendments that impair or diminish the immutable
principles of the Basic Law.65 These essential elements include the principles of de-
mocracy, federalism, constitutional state, the social state, and the participation of the
Lnder in Germanys national legislative process. They also embrace the inviolable
principle of human dignity that all state authority, under the terms of Article 1 (1),
has the duty to respect and protect. As early as 1953 the Constitutional Court pro-
claimed its authority to overturn a constitutional amendment on the basis of Article
79 (3).66 Since then, the Court has reviewed the substance of constitutional amend-
ments allegedly infringing rights originally laid down in Articles 10 (privacy of
correspondence and telecommunications), 16 (right to asylum), and 143 (suspending
property rights under Article 14).67
More recently, in the Lisbon Treaty Case (2009; no. 6.6), the Second Senate of the
Constitutional Court made the constitutional identity secured by Article 79 (3) a
central interpretive device in its dicta expressing caution with respect to the Lisbon
Treaty and the eu due to their democratic deficits. In one passage, the senate speaks of
Germanys inalienable constitutional identity, which it associates with the demo-
cratic or majoritarian parliamentary character of the governmental system created by
the Basic Law.68 Although the senate found the act ratifying the Lisbon Treaty com-
patible with the Basic Law, it held unconstitutional the accompanying statute reduc-
ing the roles of the Bundestag and Bundesrat in eu affairs, thereby breaking what the
senate deemed as an essential link in the chain of German democracy. In the senates
view, there must be a direct relationship between the votes of the German people
and national legislative policy. Accordingly, the senate ruled that, before the treaty
could enter into force, a statute would have to be enacted granting to the Bundestag
and Bundesrat sufficient rights of participation in the transfer of powers to eu institu-
tions. The Basic Law permits the legislative transfer of sovereign powers to the eu,
but it does not empower either parliamentary body to surrender any part of Germa-
nys constituent power to govern its own affairs. In the Courts interpretation of Arti-
cle 79 (3), the countrys national constitutional identityparticularly in the form of
the federal, democratic, social, and constitutional statecannot be altered by any
treaty or constitutional amendment that compromises the principle of national self-
determination or the essence of Germanys sovereign statehood.69 (See Chapter 6 for
a further discussion of the Lisbon Treaty Case.)

theory of basic rights

The theory underlying the interpretation of basic rights in Germany is complex. Ac-
tually, it would be more appropriate to speak of theories rather than a single theory of
rights. These theories include the negative and positive character of basic rights, the
horizontal application of basic rights in the interpretation of private law, and norma-
tive theories rooted in various conceptions of the polity as a whole. We consider each
in the order indicated.
60 chapter two
Dual Character of Rights. The Federal Constitutional Court has described guaran-
teed rights as both negative and positive as well as subjective and objective. A nega-
tive right is a subjective right to liberty. It protects individuals against the state, vin-
dicating their right to unobstructed freedom and autonomy. A positive right, on the
other hand, represents a claim the individual may have on the state. In the German
understanding, positive rights embrace not only a right to certain social needs, such
as a right to a minimum standard of living,70 but also a right to the effective realiza-
tion of certain personal liberties. For example, in the Numerus Clausus I Case (1972;
no. 10.12)71 universities were required to expand their facilities to make good on the
basic right to choose ones occupation. Yet, as we have seen in our discussion of ob-
jective values, personal freedom and autonomy are limited by the requirements of
human dignitya principle the state is duty-bound to foster and respect. The best
example here is the Abortion I Case (1975; no. 7.4) in which the Court directed the
state, as a general principle, to protect the life of the fetus against the constitutionally
guaranteed personality right of the mother. Another way of describing the German
perspective is to suggest that the Basic Law embodies a facilitative model of freedom
as opposed to the American privatizing model deeply rooted in Lockean political
theory. The facilitative model, as W. Cole Durham defi nes it, [reflects] a tradition in
which freedom tends to be seen not as the polar opposite of community, but as a value
that must be achieved in synthesis with community. In this setting, Durham contin-
ues, it is natural for the state to assume a more affi rmative role in actualizing specific
constitutional rights.72
Although closely related, a positive right is not the same as an objective value. An
objective value imposes a duty on the state. The state must create and maintain an
environment conducive to the realization of basic values. In short, objective values
speak to the organization of the state and society as a whole. A positive right, on the
other hand, is an individual right or, perhaps more accurately, an entitlement that the
individual may claim from the state. Reference to the positivity of rights implicates
the par ticu lar situation of an individual, one who may need the states help to enjoy a
basic right effectively, such as, for example, the right to the development of ones per-
sonality. In this respect, the notion of a right under the Basic Law is broader than the
concept of a right under the U.S. Constitution. A right in the German constitutional-
ist view embraces not only the right to be left alone, free of state interference, but also
a claim to assistance in the enjoyment of the right.

Horizontality of Rights. In the seminal Lth Case (1958; no. 8.1)a free speech
decisionthe Constitutional Court remarked that the Basic Laws objective system
of values expresses and reinforces the validity of the [enumerated] basic rights.73
The decision solidified the canonical status of the Basic Law as a hierarchy of objec-
tive values. The Court also spoke once again of the negative and positive character of
rights. Lth acknowledges that basic rights are indeed fundamentally negative rights
against the state, suggesting that constitutional rights apply directly to public law.
But Lth goes on to say that the constitutions objective values reinforce the effec-
The Basic Law and Its Inter pr etation 61
tive power of these rights, extending their reach indirectly into the domain of private
law, affecting the relation between private parties. The indirect reach of constitu-
tional rights into private lawtheir horizontal or third-party effect (Drittwirkung)
means that fundamental rights, as the Court occasionally puts it, have a radiating
effect upon private law, requiring the latter to be interpreted in conformity with the
former. Constitutional law seldom overrides private law but, rather, transforms it.
More precisely, constitutional law influences the interpretation. In short, a third
partythat is, one involved in a private legal disputemay effectively invoke a consti-
tutional value in his or her defense when sued under a provision of ordinary law, the
application of which devalue the importance or significance of the constitutional value.
The dispute in Lth arose out of a lawsuit in which a popu lar fi lm director, Veit
Harlan, won a civil damage award from Erik Lth, a public information official who
publicly advocated a boycott of one of the directors fi lms. Harlan, a favorite of Nazi
leaders, had produced notoriously anti-Semitic fi lms during the Th ird Reich. Exon-
erated after World War II, Harlan reemerged as a major fi lm director. Lth, an active
member of an organization of Christians and Jews, was outraged and sought to con-
vince theater owners not to show Harlans fi lms while enjoining the public not to
see them. A court found for Harlan under a provision of the Civil Code (Brgerliches
Gesetzbuch) obligating a person to compensate another for intentionally causing
him or her harm contrary to good morals. In overturning the judgment, the Con-
stitutional Court held that the ordinary court had given insufficient attention to the
basic value of free speech, particularly in circumstances in which the community
was being addressed on an important matter of general interest. In Lth, the Court
held that the ordinary court, by focusing exclusively on the directors private interest,
had ignored the effect of basic rights on private law. In this case, the ordinary court had
overlooked the importance of the objective value or value decision folded into the
Basic Laws free speech provisions. Private legal arrangements, declared the Court,
must be interpreted in the light of the special significance of free speech in a demo-
cratic state. The Court has taken the same view of other constitutionally cognizable
rights, fi nding them equally applicable to third persons whose complaints arise out
of private legal interactions like employment contracts or tortious conduct.74
There is little dispute in Germany over the acceptance of the horizontal effect doc-
trine. What is disputed is the extent to which a value decision or objective norm should
influence the interpretation of private law. How much of a radiating effect the consti-
tutional order of values should have in a par ticu lar dispute is to be determined by the
judges of the ordinary courts. If a judge has adequately considered the significance of
this order of values, the Federal Constitutional Court ordinarily allows his or her
judgment to stand even if, in deciding the case de novo, the Court might have reached
a different result. The Constitutional Court must be convinced that the ordinary
court has not ignored the significance of the constitutional value.75

Substantive Rights Theories. The Constitutional Courts search for a coherent the-
ory of basic rights (Grundsrechtstheorie) has also evolved out of the concept of an
62 chapter two
objective system of values. Constructing such a theory, however, has not been easy.
Drawing upon the broad and general language of the Basic Law, German constitu-
tional theorists have advanced five normative theories of basic rights: liberal, institu-
tional, democratic, value-oriented, and social.76 Each fi nds some support in the liter-
ature of constitutional theory; each draws some support from par ticu lar decisions of
the Federal Constitutional Court.77 Liberal theory, based on postulates of economic
liberty and enlightened self-determination, emphasizes the negative rights of the in-
dividual against the state. Institutional theory focuses on guaranteed rights associ-
ated with organizations or communities such as religious groups, the media, univer-
sities (research and teaching), and marriage and the family. Democratic theory is
concerned with certain political functions incident to the rights of speech and asso-
ciation and the role of elections and political parties. Value-oriented theory places its
emphasis on human dignity as it relates to rights flowing from the nature of person-
hood. Social theory, fi nally, highlights the importance of social justice, cultural
rights, and economic security. Not surprisingly, scholars and judges have linked each
of these theories to one or another of the conceptions of the state discussed earlier.
It is possible through interpretation to regard one of these five theories as domi-
nant. Yet each, like each conception of the state, has some basis in the text of the Basic
Law. Like their counterparts in the United States, many constitutional theorists ex-
pend considerable energy debating whether or not there is an objectively correct
interpretation of the Basic Laws fundamental rights provisions. For its part, the
Constitutional Court seems content to decide human rights disputes on a case-by-
case basis, using what it regards as the most convincing argument or theory available
in a given situation, an approach that is more acceptable in a system that does not
abide by stare decisis. The justices can easily draw on the logic of any of the five theo-
ries because these theories are not wholly inconsistent with one another. Tensions
between them do exist, and much of the work product of the Federal Constitutional
Court described in this book is best understood as a playing out of these tensions.

interpretive modes and techniques

Constitutional interpretation as practiced today by the Federal Constitutional Court


draws on several of Germanys competing traditions of law and judicial process.
Thus, we observe styles of argument ranging from reliance on linguistic analysis to the
invocation of suprapositivist norms purportedly underlying the Basic Law.78 Like
the U.S. Supreme Court, the Constitutional Court employs a variety of interpretive
modes, including arguments based on history, structure, teleology, text, interest bal-
ancing, and natural law. The one technique that is not formally followed in German
constitutional analysis is that of stare decisiswhich is unknown in the judiciaries
of code-law countriesalthough judicial opinions, especially those handed down by
the Federal Constitutional Court, typically brim with citations to prior cases. These
approaches or modes of analysis have generated a critical literature in Germany as
The Basic Law and Its Inter pr etation 63
abundant as it is controversial. Like its equivalent in the United States, this literature
is concerned largely with the legitimacy and justification of judicial decision making.79

Standard Interpretive Approaches. Any discussion of constitutional interpretation


in Germany begins with the usual reference to the grammatical, systematic, teleo-
logical, and historical methods of analysis.80 In resorting to one or more of these
methods, the Constitutional Court draws on the conventional approach to judicial
decision making in German statutory law that originated in the formalism of the
nineteenth-century school of jurisprudence known as pandectology.81 Grammatical,
or textual, analysis, often the starting point of judicial interpretation, focuses on the
ordinary or technical meaning of the words and phrases in a given constitutional
provision. Occasionally, words and phrases are construed in a narrow legal sense, as
in cases involving the rights of criminal defendants, to satisfy the technical require-
ments of the law. In other instances, they tend to be interpreted in terms of their plain
meaning. Systematicor structuralreasoning, by contrast, searches for the mean-
ing of par tic u lar words and phrases by examining the constitution as a whole. Th is
mode of reasoning stems from the Constitutional Courts view of the Basic Law as
a unified structure of values and relationships. Rather than focusing on the mean-
ing of isolated words and phrasesa clause-bound approach to constitutional
interpretationsystematic reasoning centers on their location within the text and
the normative structure of the Basic Law as a whole. Teleological interpretation, on
the other handa favored form of judicial reasoning in Germanyrepresents a
search for the goal, purpose, utility, or design behind the constitutional text. Here
the Court seeks interpretive guidance from the history and spirit of the constitu-
tional order. Historical analysis, fi nally, seeks to shed light on the language and pur-
pose of the constitutional text by reference to the Basic Laws draft ing history. History
by itself, however, seldom dictates the meaning of the constitution.82 At best, it per-
forms the auxiliary function of lending support to a result arrived at by some other
method of interpretation. Taken together, it is difficult to rank these approaches to
interpretation in any fi xed order of priority. Like the U.S. Supreme Court, the Con-
stitutional Court uses whatever approach or combination of approaches seems suit-
able in a given situation, except that arguments grounded in text, structure, or teleol-
ogy generally prevail over those based on history.83
Constitutional justices often portray these conventional canons of interpretation
as ways of discovering the objective willto be distinguished from the subjective
intentionsof the Basic Laws framers. Teleological reasoning is even claimed to be
objective in this sense, although the sources used in discovering the telos of the Basic
Law are unclear. The constitutions draft ing history is one source but, as just noted,
history is mainly a supplementary aid to interpretation. In truth, the teleological ap-
proach is itself susceptible to the subjectivism that the canonical tradition would
hope to avoid. Karl Heinrich Friauf observed that the teleological approach is a
gateway through which consideration of social policy and even the political phi-
losophy of the justices flow into the interpretation of the constitution.84 Justices and
64 chapter two
scholars do not always so readily acknowledge the creative character of constitu-
tional interpretation.
Nevertheless, most commentators are aware of the limits of these customary
methods of interpretation. As Konrad Hesse, a former justice of the Constitutional
Court, pointed out, the objective will thesis, so assiduously applied in statutory con-
struction, is unsuited to constitutional interpretation.85 For one thing, no order of
priority among these methods exists when their application leads to different results.
For another, as Friauf suggested, there is no mechanical way of applying these meth-
ods to the open-ended words and phrases of the Basic Law. When these methods fail
or if the Court is faced with a dispute involving competing constitutional values, it
often resorts to ad hoc balancing. Indeed, the rhetoric of conceptual jurisprudence
belies the pragmatic, flexible and undogmatic approach to constitutional interpre-
tation that often characterizes the Courts work.86

Competing Judicial Visions. The tension between objectivity and creativity that
commentators have noticed in the Constitutional Courts work product reflects a
larger confl ict between competing visions of the judicial function. Two general ap-
proaches to judicial decision making emerge from the materials in this book. The
fi rst approach, which distinguishes sharply between the functions of judge and legis-
lator, is as familiar to Americans as it is to Germans. In this view, making law is not
the same as interpreting it. The justice is bound to the prescribed norms of the consti-
tution; his or her task is to discover the content of these norms and then to apply
them uncompromisingly, a process known as theory of binding norms (Normgebun-
denheitstheorie).87 German no less than American justices have sought to perpetuate
this traditional view of the judicial function. The Court can only unfold what already
is contained . . . in the constitution, wrote Professor Ernst Friesenhahn, a former
Constitutional Court justice.88 He continued, As an independent, neutral body,
which renders decisions solely in terms of law, [the Court] determines the law with
binding effect when it is disputed, doubted or under attack. In doing so, [the Court]
bears no political responsibility, though its decisions may have great political signifi-
cance.89 Justice Paul Kirchhof, whose twelve-year term on the Court expired in
2003, compared the judicial role to that of a soccer referee, one in which the justice
merely enforces existing rules by throwing up red and yellow cards.90
Justice Gerhard Leibholz, an influential member of the Second Senate for twenty
yearshe served prior to the adoption of the twelve-year nonrenewable term of
officealso drew a bright line between politics and the political law of the con-
stitution.91 He distinguished between disputes of a legal-political character which
can be placed under legal constitutional control and disputes of a purely political
nature . . . which cannot be decided according to the rules of Law.92 Consistent with
the conventional German approach to constitutional review, the Constitutional
Court, in Leibholzs view, is under a duty to explore every relevant fact and aspect of
law in a case so as to fi nd the truth objectively.93 In a similar vein, Justice Helmut
Simon, a former member of the First Senate, said that the Federal Constitutional
The Basic Law and Its Inter pr etation 65
Court neither creates norms nor belongs to those political institutions responsible
for the active structure of our common life or the future of the community. As an
organ of the judiciary, its function, like that of other courts, is limited within the
framework of a judicial proceeding, to the application and interpretation of laws
originating in some other forum. . . . [It has no other power] except that of declaring
acts of public authority constitutional or unconstitutional.94
Nevertheless, a number of justices and constitutional scholars have acknowledged
the inherent limits of Normgebundenheitstheorie. Professor Konrad Hesse, ap-
pointed to the First Senate in 1975 and the author of a leading treatise on constitu-
tional law, is openly critical of the judicial function conceived as an objective process
of discovery upon the application of a given methodology.95 For him, constitutional
interpretation is an art flowing from the interplay between text and interpreter: the
justice perceives the meaning of a constitutional text, as he or she reflects on the pres-
ent, in the light of constitutional language drafted within a given historical context.
In the view of Justice Ernst-Wolfgang Bckenfrde, a former member of the Second
Senate, constitutional interpretation requires a delicate balancing of competing val-
ues as well as competing theories of the polity expressed in such concepts as the lib-
eral state, the social state, or the democratic state.96 Justice Dieter Grimm, a former
member of the First Senate, is even more candid: There is no pre-established differ-
ence between courts and legislatures which a par ticu lar constitution has to adopt
and which an interpreter has to enforce regardless of what the constitution says. In
addition, constitutional courts inevitably cross the line between law and politics
[because] the constitution does not offer an unambiguous and complete standard for
[reviewing the validity of legislation].97 In Grimms view, this reality argues for less
rather than more judicial intervention by the Constitutional Court in the political
and legislative arenas.98
After eleven years on the Court, even Justice Leibholz wrote that it would be an illu-
sion and . . . inadmissible formalistic positivism, to suppose that it would be possible
or permissible to apply . . . general constitutional principles . . . without at the same
time attempting to put them into a reasonable relationship with the given political
order. Why? Because [t]he constitutional judge cannot do anything except relate
the rules [of the Basic Law] to political reality.99 In 1971, as he was about to leave the
Court, Leibholz remarked that the existing confl ict between constitution and con-
stitutional reality does not admit either of a purely legalistic solution in favor of the
constitution, or of an exclusively sociological solution in favor of constitutional real-
ity. Rather, this confl ict must be viewed as [a dialectical one] between normativity
and existentiality.100
Several justices have readily acknowledged that constitutional decision making
requires statesmanship or a keen sense of political reality.101 Justice Leibholz, for
example, conceded that the constitutional judge, more than the ordinary judge,
[must] understand something of the essence of politics and of those social forces
which determine political life.102 Some of the justices have equated judicial states-
manship with the Courts capacity to achieve consensus. President Wolfgang Zeidler,
66 chapter two
the presiding justice of the Second Senate from 1983 to 1987, during which time he
served as the Courts vice president, even ventured to observe that objectivity in con-
stitutional interpretation manifests itself most clearly when the justices of a given
senate, who collectively represent diverse career backgrounds, ideologies, and politi-
cal attachments, manage to surmount their differences and reach unanimous agree-
ment.103 Other justices see a dialectical process at work: the right answer in a given
case is the product of collective decision making; a right or good decision is one that
has banished disagreement in the solvent of group discussion and dialogue.104

Balancing and Optimization. Balancing rights and duties is a standard approach to


constitutional interpretation in Germany, as it is in many other constitutional de-
mocracies, including the United States. Balancing is an attractive methodology. As
Louis Henkin has written, it provides bridges between the abstraction of principle
and the life of facts. It bespeaks moderation and reasonableness, the Golden Mean.105
Although the balancing approach to constitutional interpretation in the United States
is controversial on and off the Supreme Court, it is the preferred approach of the Fed-
eral Constitutional Court, an early and dramatic example of which is the famous
Lth Case of 1958 (the seminal free speech decision featured in Chapter 8). In the
hands of the Federal Constitutional Court, balancing implicates the so-called prin-
ciple of optimality or optimization. As Robert Alexy, Germanys leading theorist of
constitutional balancing, writes, it is one aspect of what is required by [the] more
comprehensive principle of proportionality (Verhltnismssigkeit).106 It is a matter
of optimizing or maximizing competing constitutional rights or values. Alexy treats
constitutional rights as optimization requirements that he identifies with principles
instead of rules. As optimization requirements, he continues, principles are norms
requiring that something be realized [that is, competing rights] to the greatest extent
possible, given the factual and legal possibilities.107
Alexy emphasizes that balancing, as an approach to constitutional interpretation,
depends above all on viewing constitutional protections as expressions of broader
values or principles and not as narrow, subjective rights held by an individual. As
noted earlier in our discussion of rights theories, this is precisely how the Basic Laws
fundamental rights principles have come to be understood. Interpreting rights as
objective values or principles necessarily puts considerable discretion in the hands of
the Federal Constitutional Courts justices, who have been liberated from the civil-
law orientation of the judiciary, charged as it is with the narrow project of interpret-
ing and applying doctrine found in legislation. Federal Constitutional Court justices
decide upon several competing values in a par ticu lar case, a fact-fi nding undertaking
that looks more like common-law judging. The Federal Constitutional Courts deci-
sions bear the imprint of the common-law and civil-law traditions. Yet, the context-
sensitive discretion that characterizes common-law judging leads to the concerns
about democratic legitimacy that the restrained role played by civil-law judges is
meant to address. These concerns are amplified by a balancing analysis, leading one
commentator to conclude that a balancing analysis is no more protective [of con-
The Basic Law and Its Inter pr etation 67
stitutional rights] than the judges who administer it.108 Bernhard Schlink, perhaps
the leading critic of Germanys tradition of balancing in constitutional law, argues
that rights susceptible to balancing are not absolute protections at all.109 But, from the
perspective of the proponents of balancing on the Constitutional Court, this is the
point: few rights under the Basic Law are absolute; most are qualified by reservation
clauses, with the result that state infringements of these rights trigger the kind of
proportionality review described next.

Principle of Proportionality. The principle of proportionality, like the concept of an


objective order of values, is crucial to any understanding of German constitutional
decision making. The Basic Law contains no explicit reference to proportionality
but, as just noted, the Federal Constitutional Court has elevated proportionality to a
high constitutional principle in its own right, serving as a major tool in assessing the
validity of legislation impinging on fundamental rights. The Court has described pro-
portionality reasoning as indispensable in a constitutional state. Accordingly, propor-
tionality is not strictly an approach to interpretation; rather, the principle is employed
to justify limits on democratic rights and fundamental freedoms. The Court applies
what is essentially a means/ends test for determining whether a par ticu lar right has
been overburdened in the light of a given set of facts. Except for the Constitutional
Courts effort to optimize competing constitutional rights, the German approach is
not unlike the methodology often employed by the U.S. Supreme Court in fundamen-
tal rights cases.
In its German version, proportionality reasoning is a three-step process. First,
whenever Parliament enacts a law impinging on a basic right, the means used must be
appropriate (Eignung) to the achievement of a legitimate end. Because rights in the
Basic Law are circumscribed by duties and are often limited by objectives and values
specified in the constitutional text, the Constitutional Court receives considerable
guidance in determining the legitimacy of a state purpose. The sparse language of the
U.S. Constitution, by contrast, often encourages the Supreme Court to rely on non-
textual philosophical or policy arguments to determine the validity of a state pur-
pose allegedly impairing a constitutional right. Second, the means used to achieve a
valid purpose must have the least restrictive effect (Erforderlichkeit) on a constitu-
tional right. Th is test is applied flexibly and must meet the general standard of ratio-
nality. As applied by the Constitutional Court, it is less than the strict scrutiny and
more than the minimum rationality test of American constitutional law. Finally,
the means used must be proportionate to the stipulated end. The burden on the right
must not be excessive relative to the benefits secured by the states objective (Zumut-
barkeit).110 Th is three-pronged test of proportionality seems fully compatible with, if
not required by, the principle of practical concordance.

Practical Concordance. The canon that holds that protected constitutional values
must be harmonized with one another when they confl ict is known as the princi-
ple of practical concordance (praktische Konkordanz). Once again, it requires the
68 chapter two
optimization of competing rights. In short, one constitutional value may not be real-
ized at the expense of a competing constitutional value. In the German view, consti-
tutional interpretation is not a zero-sum game. The value of free speech, for example,
rarely attains total victory over a competing constitutional value such as the right to
the development of ones personality. Both values must be preserved in creative unity.
Professor Hesse wrote, The principle of the constitutions unity requires the optimi-
zation of [values in confl ict]: Both legal values need to be limited so that each can
attain its optimal effect. In each concrete case, therefore, the limitations must sat-
isfy the principle of proportionality; that is, they may not go any further than neces-
sary to produce a concordance of both legal values.111
The application of the principle of practical concordance may be illustrated by
reference to two religious freedom cases. In the Classroom Crucifix II Case (1995;
no. 9.7) the Court announced that Article 7 (allowing religious instruction in the
public schools) and Article 4 (securing freedom from religious indoctrination) have
to be seen together and reconciled with each other through interpretation, since it is
only concordance of the aspects of legal protection under both articles that can do
justice to the decisions contained in the Basic Law.112 The Court sought to reconcile
the confl icting values by requiring public schools to remove the crucifi x from class-
rooms attended by objecting students but to permit its display in classrooms where
such students are not present. The Muslim Headscarf Case (2003), by contrast, in-
volved a challenge to a school regulation banning teachers from wearing headscarves.
Here the positive freedom of a Muslim teacher to cover her head collided with the
negative freedom of students who might object on the ground of their faith. The Court
required Land legislatures to resolve the tension, saying that legislators must seek a
compromise reasonably acceptable to everyone. . . . [Constitutional] provisions must
be seen together, and their interpretation and influence must be coordinated with
each other. In this area, the Court noted, policies may differ from Land to Land,
depending on school traditions, the composition of the population by religion, and
whether [the population] is more or less strongly rooted in religion.113

Passive Virtues and Dialogue. Alexander Bickel maintained that the U.S. Supreme
Court is often at its best when it declines to exercise jurisdiction it clearly has. These
evasive strategies, which he calls passive virtues, include rules on standing, case
and controversy requirements, the political question doctrine, and other prudential
techniques for avoiding constitutional controversies.114 There are no exact equiva-
lents to these rules in Germany. As often noted in Chapter 1, the Court may not de-
cline to decide cases properly before it. One of its functions in the German system is
to resolve even doubtful questions of constitutionality, not to avoid them.
Yet, even while accepting jurisdiction, the Court adheres to canons of restraint
that grant considerable latitude to legislative and executive decision makers.115 One
of these, familiar to Americans, is the Courts practice of upholding legislation when
it can plausibly be interpreted to conform with the constitution (verfassungskon-
forme Auslegung) even when faced with an equally plausible argument against its
The Basic Law and Its Inter pr etation 69
validity.116 In addition, although the Court does not decline to resolve cases on their
merits merely because they involve sensitive issues of foreign or military policy, it has
tended to defer to the executive when the executive exercises its authority pursuant
to international treaties. As a matter of principle, the Court has declared that the
deployment of German soldiers in armed operations abroad requires parliamentary
approval,117 but even here the Court has broadly construed the executives discretion-
ary authority in military affairs. On the domestic front, fi nally, the Court has taken an
equally broad view of the governments discretionary authority to regulate aspects of
the economy when necessary under the terms of Article 72 (2). The Courts reluc-
tance to invalidate laws passed under this provision is not unlike the Supreme Courts
deferential review of socioeconomic legislation under the due process clauses of the
U.S. Constitution.
In one significant development in the field of basic rights, however, the Court all
but abdicated its authority to independently review secondary Eu ropean Commu-
nity laws. In a case known as Solange I (1974) the Court famously ruled that Eu ro-
pean Community law could be challenged in concrete judicial review proceedings
if its compatibility with fundamental rights under the Basic Law was in doubt.118
The Court took the position that such challenges were permissible so long as (sol-
ange) the protection of fundamental rights in the Eu ropean Community was below
the level of protection in Germany. Twelve years later, in Solange II (1986; no. 6.4),
the Court ruled that fundamental rights in conception, substance, and manner of
implementation in the Eu ropean Community are essentially equal to the protec-
tion of basic rights in Germany.119 For this reason the Court announced that it
would no longer review Community regulations or directives in the light of these
basic rights.
The Court reaffi rmed Solange II in the Banana Market Regulation Case (2000),
declaring as noncognizablefor the fi rst timean administrative court reference
questioning the constitutionality of regulations on the marketing of bananas as a vi-
olation of occupational and property rights.120 The Second Senate declared: As long
as the European Communities generally ensure the effective protection of funda-
mental rights and generally safeguard the essential content of fundamental rights,
the Federal Constitutional Court will . . . no longer review [European Community
legislation] by the standard of fundamental rights contained in the Basic Law.121 The
admissibility of a challenge to secondary Community law would thus depend on a
clear showing that the fundamental right allegedly violated is not generally en-
sured within the European Community. In the light of the Maastricht Treaty Case
(1993; nos. 5.5 and 6.5) and the Lisbon Treaty Case (2009; no. 6.6), however, primary
European Community or European Union lawthe treatiesare still subject to
constitutional review to assess whether they infringe or erode Germanys constitu-
tional identity as specified by Article 79 (3).122
70 chapter two

sources of interpretation

Unwritten Principles. Almost everything said so far about the nature of the Basic
Law as a whole or of basic rights in par ticu lar raises profound problems of interpreta-
tion. Principles and theories such as the Basic Laws unity, its objective value dimen-
sion, its constitutionalization of private law, and the positivity and negativity of rights
have served to confer substantial interpretive authority on the Federal Constitu-
tional Court. These principles and theories have been judicially created, but not out
of whole cloth. In the Courts view, as noted earlier in this chapter, they reflect the
normative realities underlying the Basic Law, realities rooted in the dialectic be-
tween the liberal, socialist, and Christian natural-law traditions that shaped the orig-
inal document, particularly the provision that subjects the legislature to the consti-
tutional order and the executive and the judiciary to law and justice (emphasis
added). Owing largely to neo-Thomist influences, the Court affi rmed the existence
of supra-positive principles of law (berpositive Rechtsgrundstze) that bind legis-
lators and other political decision makers.123 But, as George Fletcher has pointed out,
its later accents on individual autonomy, moral duty, and human rationality echo
equally strong neo-Kantian influences,124 just as the powerful strands of social wel-
fare theory in its case law may be said to reflect socialist egalitarian thought.
These orientations have converged to produce a distinctive vision of the human
person. In the Life Imprisonment Case (1977; no. 7.3) the Court defined the human per-
son as a spiritual-moral being (vom Menschen als einem geistig-sittlichen Wesen)
whose intrinsic dignity depends on his [or her] status as an independent [personal-
ity].125 But the independence affi rmed here is far from the autonomous individual-
ism of American constitutional law. The image of man in the Basic Law, the Court
has declared, is not that of an isolated, sovereign individual; rather, the Basic Law
has decided in favor of a relationship between individual and community in the sense
of a persons dependence on and commitment to the community, without infringing
upon a persons individual value.126 These words have been a constant refrain in the
Courts jurisprudence. Similar lines of thought can be discerned in its view of the pol-
ity, one that rejects the self-regarding individualism of bourgeois liberalism as well as
the collectivism of Marxism. Much of the Courts case law treated in the following
chapters identifies a polity that reminds Americans of Lincolns image of a fraternal
democracy. As the abortion cases and many free speech decisions show, the social
context in which men and women discover the source of their dignityand human
flourishingcannot be ignored in a properly governed society. Accordingly, human
dignity resides not only in individuality but in sociality as well.

Written Text. The major source of constitutional interpretation in Germany is the


documentary text adopted by the Lnder legislatures in 1949 along with fi ft y-nine
amendatory acts ratified between 1951 and 2011. The words and phrases of the con-
stitution mean what they say and the Court takes them seriously. It rarely interprets
The Basic Law and Its Inter pr etation 71
constitutional language in a way radically different from the common understanding
of the text. But as suggested in previous subsections, the Court has employed a wide
range of interpretative approaches and guides to expound the meaning of the written
text. These include legalistic modes of analysis along with an effort to determine the
general purpose of textual provisions in the light of their historical, philosophical,
and sociomoral determinants.
But the constitution includes more than the documentary text. What might be
called the working text arguably extends to long-established practices whose attenua-
tion would raise serious constitutional issues. These practices include, under Germa-
nys system of proportional representation, the requirement that a political party
garner at least 5 percent of the popu lar vote as a condition of entering national or
state parliaments. Although the Court has never declared that proportional repre-
sentation itself is constitutionally required,127 its abolition after sixty years of unbro-
ken observanceexcept for the fi rst postreunification all-German electioncould
easily be contested on constitutional grounds, especially in the light of the Courts
solicitude for the rights and representational value of minority parties. An unwritten
norm previously unmentioned that is now a solid part of the working text is the prin-
ciple of federal comity (Bundestreue), an innovative doctrine the Court has inferred
from the Basic Laws federal structure. It requires more than the observance of formal
constitutional legality; it also requires both levels of government to consult with
each other when their interests confl ict or overlap.128 A 1992 change in the Basic Law
actually formalized the principle of comity in the field of European affairs. When
making policy in the context of the European Union, the federal government is re-
quired to keep the Bundesrat informed of its dealings.129 Even when acting under
one of the European Unions exclusive powers the federal government, according
toArticle 23 (4), shall take the position of the Bundesrat into account. Given the
Courts jurisprudence of federal comity, it seems likely that the Bundesrat would be
able to validly petition the Court to hear a case when arguing that its position was not
adequately taken into account by the national government.

Historical Materials. The Constitutional Court occasionally draws upon historical


materials to illuminate the general purpose behind a constitutionally ordained con-
cept, value, or institution. Th is inquiry into original purpose is not always clearly
differentiated from an inquiry into original intent. When appealing to purpose the
Court usually considers the background or circumstances out of which a par ticu lar
constitutional provision emerged. Because so many of the Basic Laws words and
phrases have been lifted from nineteenth- and twentieth-century constitutions, both
state and national, the Court often fi nds it useful to explore the reasons for their in-
corporation into these earlier documents. For example, in determining whether the
inviolability of the home (Wohnung) within the meaning of Article 13 (1) extends
to business offices, the Court consulted the debates and commentaries on similar
provisions incorporated into the Frankfurt Constitution of 1849, the Prussian Con-
stitution of 1850, and the Weimar Constitution of 1919.130
72 chapter two
While admissible as sources of interpretation, these older documents pale in com-
parison to the significance of the Basic Laws legislative history. Th is history includes
the report of the Herrenchiemsee Conference, the body charged with preparing a
working draft of the Basic Law.131 The most fertile source for examining the back-
ground and purposes of the Basic Law, however, is the daily stenographic record of
the debates and decisions of the Parliamentary Council. The protocols include the
proceedings of all the councils specialized committees, together with the arguments,
decisions, and voting records of its Main Committee and plenary sessions.132 The
Bah Religious Community Case (1991) is a prominent example of the supportive
role the Basic Laws legislative history plays in the interpretation of par ticu lar provi-
sions. The Court found in the deliberations of the Parliamentary Council that the
right to associate for religious or ideological purposes was encompassed within the
meaning of Article 4 (1), which guarantees freedom of faith.133
The Court seems to fi nd the Basic Laws legislative history particularly helpful in
cases involving confl icts between levels and branches of government. For example,
in the famous Flick Case (1984), which arose out of a notorious tax and party fi nance
scandal, the Court invoked Parliamentary Council debates to show that a parliamen-
tary investigative committee established under Article 44 of the Basic Law could re-
quire the executive to surrender all the relevant records in the case.134 In the equally
prominent Parliamentary Dissolution I Case, (1983) the Courts majority concluded
that there was nothing in the Parliamentary Councils proceedings that contradicted
its view that the federal president could dissolve Parliament on the request of the
chancellor even though the latter had the backing of a slim parliamentary major-
ity.135 The dissenting opinion disputed the majoritys view and relied on lengthy
quotations from the Councils members.136 Th is exchange illustrates, as in American
constitutional debates, that legislative history can be invoked to support more than
one side of an argument over the constitutions meaning.

Judicial Precedent. In Germanys codified legal system, judicial decisions do not


qualify as official sources of law. But constitutional law is different. First, while judi-
cial rulings apply only to the parties before them, the Federal Constitutional Courts
decisions are binding on all courts and constitutional organs.137 Second, all abstract
and concrete review cases, along with decisions on whether a rule of public interna-
tional law is an integral part of federal law, enjoy the force of general law. In fact, any
decision declaring a law null and void or compatible or incompatible with the Basic
Law must be published in the book of federal statutes known as the Federal Law Ga-
zette,138 a practice that underscores the Courts character as a negative legislator. Al-
though it rejects the principle of stare decisis as such, its opinions, like those of other
high courts, are studded with citations to its case law. In the Muslim Headscarf Case
(2003), for example, the Court supported its reasoning by reference to no fewer than
twenty-six decisions handed down between 1957 and 1999.139 Formally, judicial pre-
cedents do not bind the Constitutional Court; rather, they are marshaled to show
that a doctrinal outcome in a given case is consistent with its previous interpretations
The Basic Law and Its Inter pr etation 73
of the Basic Law. The German understanding of the constitutional state principlea
central pillar of the Basic Lawrequires a coherent body of judicial doctrine in the
interest of legal certainty, predictability, and the necessity of creating a stable consti-
tutional order. In actual practice, however, the similarities in the uses (or misuses) of
precedent by the Court and other courts treated in this book are more striking than
the differences.140

Academic Literature. The work of legal scholars carries as much if not more weight
in the Basic Laws interpretation than do judicial precedents. The Court relies heav-
ily on treatises and commentaries of established legal professionals. Here it must be
remembered that in code-law countries such as Germany, enacted law was the work
product of legal scholars, historians, and theorists. It is no surprise, therefore, that
the ruling opinion (herrschende Meinung) in the literature takes pride of place in
the interpretation of the Basic Law. The literature is published in highly reputable law
journals such as Neue Juristische Wochenschrift, Monatschrift fr Deutsches Recht, Ju-
ristenzeitung, and Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht. These
and other German law journals are edited not by amateursthat is, law studentsas
in the United States, but by leading practitioners, judges, and professors of law.
(Student-authored notes in these journals would be unheard of in Germanys legal
culture.) One highly regarded and often-cited commentary on the Basic Law is the
loose-leaf edition of Kommentar zum Grundgesetz by Theodor Maunz, Gnter Drig,
and Roman Herzog.141 Herzog was president of the Federal Constitutional Court
from 1987 to 1994 and president of the Federal Republic from 1994 to 1999.
Muslim Headscarf manifests the Courts dependence on the scholarship of the
professoriat and other legal experts. In its closely reasoned opinion on the meaning
of constitutional provisions relating to the free exercise of religion, the Court relied
heavily on interpretive commentaries by major writers on the religion clauses such
as Karl Brinkman, Axel von Campenhausen, Peter Badura, Christian Starck, Joseph
Listl, Roman Herzog, and Ernst-Wolfgang Bckenfrde.142 (Bckenfrde, like Herzog,
was a former justice of the Federal Constitutional Court.) These authors are repeatedly
cited as authoritative interpreters of the Basic Law. Perhaps a better measure of the
importance of legal scholarship relative to judicial precedents is the standard prac-
tice of documentation in leading constitutional commentaries. For example, in
theoft-cited commentary by Hermann v. Mangoldt, Friedrich Klein, and Christian
Starck, only 90 of 374 footnotes in the paragraphs devoted to Article 4 (1) and 4 (2)
on religious freedom include references to prior case law, and many of these prece-
dents are employed to justify the basic orientation of the commentators.143 By con-
trast, a comparative examination of two leading American commentaries shows an
almost exclusive reliance on the case law of the Supreme Court.144

International and Comparative Materials. One of the Basic Laws main features, as
the materials in Chapter 6 highlight, is Germanys commitment to peace and inter-
nationalism. Th is commitment is expressed in constitutional provisions that bind
74 chapter two
Germany to participation in the development of the European Union (Article 23),
permit the transfer of sovereign power to international institutions (Article 24), em-
phasize the primacy of international law (Article 25), and criminalize any prepara-
tion for a war of aggression (Article 26). Article 25 merits special attention. It declares
that the general rules of international law shall be an integral part of federal law
[and] shall take precedence over [national] law and directly create rights and duties
for the inhabitants of the federal territory. Accordingly, these rules are part of Ger-
manys constitutional order and thus binding on all branches and levels of govern-
ment. So important are these rules that the Basic Law itself requires any court to
obtain a decision from the Federal Constitutional Court whenever, in the normal
course of litigation, its judges doubt whether a general rule of international law is part
of federal law or whether it directly creates rights and duties for individual persons.145
Under this procedure the Court frequently reviews or consults treaties, international
agreements, and the decisions of international tribunals.146
The Federal Constitutional Courts opinions contain far fewer references to the
decisional materials of foreign constitutional tribunals, conveying the impression that
the constitutional experience of other advanced democracies has little relevance to
the interpretation of the Basic Law. It would be misleading, however, to conclude
from this that the justices are oblivious to or uninfluenced by non-German constitu-
tional materials. Many of the justices have studied or taught abroad, several in U.S.
law schools, and have ready access within the Court to full sets of judicial reports
from foreign and international tribunals, including the U.S. Supreme Court Reports.
In par ticu lar, the Constitutional Court frequently cites the decisions of the Euro-
pean Court of Human Rights as an interpretive aid in defi ning the reach of constitu-
tional rights in Germany. The European Convention on Human Rights does not have
the status of constitutional law in Germany. Nevertheless, the Constitutional Court
has adopted the view that the content and state of development of the Convention
are to be taken into consideration insofar as this does not lead to a restriction or dero-
gation of basic rights protection under the Basic Law.147 As with its decision in the
Grgl Case (2004; no. 6.3), the Constitutional Court also continues to remind ordi-
nary courts of their obligation to follow, when and where applicable, the decisions of
the Human Rights Court.
In addition, the Constitutional Courts jurisprudence now and then includes
words, phrases, and sentences that suggest familiarity with the work product of other
national courts of judicial review. In the famous Lth Case (1958; no. 8.1), for example,
Germanys seminal free speech decision, the Constitutional Courts First Senate
quoted Justice Cardozos celebrated line that speech is the matrix, the indispensable
condition of nearly every other form of freedom, but without citing Palko v. Con-
necticut, the source of the quote. In yet another free speech decisionthe well-
known and controversial Spiegel Case (1966; no. 8.10) four justices cited foreign con-
stitutional case law on whether reporters can give evidence in criminal proceedings
involving treason charges.148 In the interpretation of the Basic Law, the Court seldom
relies on foreign case law; rather, it deploys comparative references either as negative
The Basic Law and Its Inter pr etation 75
examples of doctrines or practices that should be avoided or to support positions al-
ready arrived at through the standard methods of textual, systematic, teleological, or
historical analysis.
Other examples of the Constitutional Courts use of foreign legal and decisional
materials are readily available. A study published in 1974 recorded twenty-four cases
in which the Constitutional Court drew upon foreign judicial cases, mainly from
the United States, Switzerland, France, and England.149 The Court is inclined to draw
support from the constitutional practices and decisional materials of other advanced
parliamentary governments facing related problems of governance under compara-
ble constitutions,150 or, alternatively, to cite foreign practices or constitutional judi-
cial decisions it would not wish to follow. In the recent Lisbon Treaty Case (2009;
no.6.6) the Court looked to the positive and negative electoral experiences of several
constitutional democracies in measur ing the sufficiency of the European Unions
system of political representation against the requirements of the Basic Law. Since
1971, when the Federal Constitutional Court Act was amended to permit dissenting
opinions, dissenting justices in par ticu lar have found guidance in foreign constitu-
tional case law. In their dissent from the Courts restrictive abortion decision of 1975,
Justices Wiltraut Rupp-von Brnneck and Helmut Simon referred to Roe v. Wade;
Justice Martin Hirsch cited Vance v. Terrayas, an American citizenship case, in dis-
senting from the Courts decision in the Denaturalization II Case (1980) (upholding
the denial of citizenship to an expatriate); and Justice Ernst-Wolfgang Bckenfrde
in his Party Finance V Case (1986) dissent cited Bob Jones University v. United States, a
case involving a tax deduction dispute and contributions to political parties from
charitable institutions.151
Other references by the Federal Constitutional Court to foreign judicial decisions
could be cited, but in the light of its total workload these instances, as already noted,
are infrequent. And whether such decisions are cited or discussed depends on whether
the particular rapporteur (Berichterstatter) in the case is inclined to examine compa-
rable foreign case law in the draft opinion that he or she prepares for the consideration
of the full senate. Rarely, however, will a rapporteur pursue a full-scale engagement
with the judicial reasoning of a foreign tribunal on a matter of constitutional interpre-
tation under the Basic Law. Rather, he or she will cite an idea or ruling from another
national courts constitutional case law mainly to reinforce the holding proposed in
the Votum. But there is no serious debate in Germany, as there is in the United States,
over the propriety of citing foreign constitutional case law, when and where feasible,
in the decisions of the Federal Constitutional Court.152

conclusion

Th is chapter began with a description of the new constitutionalism brought about by


Germanys Basic Law. It continued with an account of the states political organiza-
tion along with a discussion of the various principles of the constitutional order, an
76 chapter two
order that joins the Sozialstaat to the Rechtsstaat while enthroning federalism and a
party democracy empowered to defend itself against its internal and external ene-
mies. Other features of the Basic Laws moral framework include its elevation of human
dignity into the constitutions master value, its corresponding limits on popular sov-
ereignty, its list of individual rights and communal responsibilities, its submission of
the legislature to the constitutional order and the judiciary and executive to law
and justice, and its prohibition of any formal amendment that would erode Germa-
nys constitutional identity. In turn, the Federal Constitutional Court has adopted
interpretive theories that reflect the deeper meaning of these factors. These theories
embrace the concept of the constitutions unity, the subjective and positive character
of guaranteed rights, the objective and hierarchical order of basic values, and modes
of analysis that emphasize systematic and goal-oriented teleological reasoning largely
independent of the intentions of the Basic Laws framers. Taken together, these fea-
tures and theories underscore the absolute supremacy of the Basic Law over ordi-
nary law. Finally, as subsequent chapters show, Germanys new constitutionalism has
converted the principle of constitutional supremacy into one of judicial interpretive
supremacy.
Part II
Constitutional Structures and Relationships

The cases featured and discussed in Part II highlight the relationships and tensions
among levels and branches of government. The structural provisions of the Basic Law
include the framers most significant innovations, among them the general scheme of
separated and divided powers, the constructive vote of no confidence, the limits on
presidential authority, the creation of the Federal Constitutional Court (Bundesver-
fassungsgericht), and the ban on unconstitutional political parties. Later on, in the
form of a general election law, German political leaders also introduced a new elec-
toral system combining elements of majoritarian and proportional representation.
Its combination of single-member constituencies and party-list voting is sometimes
referred to as personalized proportional representation. Th is careful attention to
institutional structures and relationships is not surprising. After the Th ird Reich,
Germans were primarily interested in creating a constitution they hoped would
bring about stability, democracy, and limited government.
The Basic Laws framers sought to achieve stability by strengthening the position
of the chancellor (Bundeskanzler), by doing away with plebiscitary institutions such
as national referenda and the direct election of the federal president (Bundesprsi-
dent), and by establishing mechanisms designed to avoid the excessive fragmenta-
tion of the electorate and to keep splinter parties out of Parliament (Bundestag).
They endeavored to bring about a more deliberative and accountable democracy
through representative institutions; general, free, and equal elections; and a chancel-
lor responsible to Parliament. But they also hoped to create a viable federal democ-
racy. In doing so, they borrowed from their own past in authorizing the Federal
Council of States (Bundesrat), in which state (Land) governments would be corpo-
rately represented, to participate in the national lawmaking process. Finally, they
hoped to create a constitutional democracy by installing an entrenched bill of rights,
limiting the power to amend the Basic Law (Grundgesetz), and establishing a su-
preme constitutional tribunal whose decisions would have the force of law.
Federalism and separation of powers are among the controlling features of Ger-
man constitutionalism. Both features are deeply anchored in Germanys constitu-
tional tradition. What is new about their reincarnation in the Basic Law is their link-
age, in Article 20, to the ideas of democracy and justice as well as to the more traditional
constitutional state principle (Rechtsstaat). The adoption of federalism as a mainstay
of the new polity reflected postwar Germanys determination to avoid the extremes of
particularism and authoritarianism. Too little power at the center would inhibit, as it
did throughout much of German history, the full flowering of parliamentary democ-
racy. But too much power at the center would retard the growth of constitutionalism.
78 Constitutional Structur es and R elationships
Separation of powers in turn was expected to moderate the exercise of power at all
levels of government and thus prevent the emergence of political absolutism. Fused
with democracy and bound by justice, the principles of federalism and separation of
powers were calculated to lock liberty and the constitutional state principle in a fi rm
mutual embrace.
The subjects of federalism and separation of powers respectively, are taken up, in
Chapters 3 and 4. Among the topics taken up in Chapter 3 are the organization of the
federal territory and admission of new states, the division of power between the Ln-
der and the federation (Bund), the doctrine of federal comity, Germanys distinctive
brand of administrative federalism, the special role of the Bundesrat in the national
legislative process, and Germanys unique system of interstate revenue transfers.
Chapter 4 features leading cases relating to confl icts among executive, legislative,
and judicial authorities, delegation of legislative power, and executive-legislative ten-
sions in foreign and military affairs, including disputes involving the deployment of
Germanys armed forces in Kosovo and Afghanistan. Chapter 5 moves on to the
topics of voting, political parties, and the electoral process. The cases featured deal
mainly with the scope of individual voting rights, the rights of parliamentary repre-
sentatives, the ban on unconstitutional political parties, election campaign spend-
ing, and the corporate rights of political parties within Land and federal legislatures.
Inasmuch as this chapter deals with the rights of voters and political parties, it consti-
tutes a transition that links the structural concerns of Part II with the materials on
civil liberties in Part III.
Finally, Part II of this edition includes a new Chapter 6, which highlights the in-
tersection between supranational and international law, on the one hand, and do-
mestic constitutional law, on the other hand. Owing to the work of the supranational
European Court of Justice and international European Court of Human Rights,
transnational constitutional rulings are beginning to affect, qualify, and operate
intandem with domestic constitutional norms, practices, and policies across Europe.
The cases we have chosen for presentation and analysis involve the provisions of
treaties, rules of customary international law, or the judgments of international courts.
The focus in Chapter 6 is on the Federal Constitutional Courts struggle to balance
the force these normative regimes are to have in German law with its role as the pro-
tector of the domestic order created by the Basic Law.
3
Federalism

Federalism in Germany is not a creation of the Basic Law. Modern German history
can be traced through successive stages of economic and political unity, beginning
with the Confederation of 1815 and ending with the highly unified federation repre-
sented by the Weimar Republic.1 The desire for economic integration provided the
driving force behind the historical development of German federalism. Customs
unions, uniform economic legislation, and laws designed to protect industry against
parochial pressures helped to create a common market and a common identity among
a people fractured by a multiplicity of sovereign kingdoms and principalities.2 Yet,
much of this integrationas well as the political unity that accompanied itwas
achieved under the dominance of Prussia, a German state known, variously, for its
militaristic and authoritarian tradition, its efficient bureaucracy, and its innovative-
ness (especially with respect to higher education). After World War II, the Allies
sundered Prussia in the hope of establishing greater equality among the German
states. The result was the Federal Republic of Germany, with Article 20 (1) of the
Basic Law mandating the establishment of the Republic as a democratic and social
federal state.
Nor is German federalism a fi nished product. The federalism of the Basic Law
seems best characterized by change, not constancy. Th is should come as no surprise
to those familiar with American constitutional history. American federalism also has
undergone epochal shifts. In the last century alone the federalism pendulum has swung
from the Supreme Courts New Deal and civil rightsera jurisprudence, which led to
expansive federal and centralizing authority, to the pro-state jurisprudence of Chief
Justice William Rehnquists New Federalism in the 1990s.
In 2006 many of the Basic Laws federalism provisions were significantly over-
hauled in what has been called the most comprehensive reform of the Basic Law . . .
since its inception in 1949.3 Focusing primarily on the power of the Bundesrat and
the distribution of legislative competence between the Bund and the Lnder, the
2006 federalism amendments were the fi rst of three anticipated phases of federalism
reform. The second phase took place in 2009 with the passage of several constitutional
amendments. Here the focus was on the sections of the Basic Law (Articles 104a
to115) known as the fi nancial constitution (Finanzverfassung), a confounding and
complicated web of rules and formulae governing the distribution of taxes and reve-
nue between levels of government. A third reform proposal would aim at redrawing
the boundaries of the Lnder. Its purpose is mainly to promote regulatory efficiency
and create economies of scale through the merger of Lnder, such as Brandenburg
and Berlin. Up to now, attempts at merging the two Lnder outside a broader reform
80 chapter thr ee
of the constitution have failed. At this writing, too, reforms in the fi nancial constitu-
tion have not been fully implemented, and the 2006 reforms have not generated a
significant body of decisions from the Constitutional Court. For this reason, we will
open this chapter with a focus on the Federal Constitutional Courts established ju-
risprudence with respect to territorial organization and then proceed to discuss as-
pects of German federalism that were unaffected by the reforms of 2006. Then, fol-
lowing a brief examination of the historical, political, and jurisprudential factors that
led to the reforms, the areas impacted by the 2006 amendments will be considered.
The 2006 reforms were in many instances a reaction to Federal Constitutional Court
decisions. These decisions will guide our exploration of the federalism reforms rati-
fied in 2006 and 2009.

territorial or ga ni zation

Federalism in Perpetuity. The principle of federalism (alongside democracy, the con-


stitutional state principle, the social state principle, and human dignity) is perma-
nently incorporated into the Basic Law. Article 79 (3) prohibits any amendment to
the Basic Law that would affect the division of the federal territory into Lnder. Ger-
many now comprises sixteen constituent states. Prior to reunification West Germany
included the states of Baden-Wrttemberg, Bavaria, Bremen, Hamburg, Hesse,
Lower Saxony, North RhineWestphalia, Rhineland-Palatinate, Saarland, and
Schleswig-Holstein. West Berlin, although functioning in many respects as the elev-
enth West German state, de jure remained a protectorate of the three Western allies.
Five new Lnder were created out of the former East German territory and were an-
nexed by the Federal Republic in 1990: Brandenburg, Mecklenburg-Vorpommern,
Saxony, Saxony-Anhalt, and Thuringia. Alongside these new Lnder, a unified Berlin
emerged as a state as well. Only Bavaria and the city-states of Hamburg, Berlin, and
Bremen correspond to their historical borders. The remaining states were artificially
carved out of the western and eastern postwar occupation zones.
The reorganization of the southwestern states in 1952, the subject of the Southwest
State Case (featured below), has been the only major change in the borders of the
Federal Republics constituent states. Several proposals have been advanced over the
years to consolidate some of the existing states into larger and more integrated politi-
cal and economic units, but none of these master plans for federal reorganization has
succeeded.4 As Philip Blair noted with regard to the original West German Lnder,
the states have taken root so fi rmly that [such plans] can scarcely be regarded as still
a practical possibility.5 In postreunification eastern Germany, however, there are
plans for the merger of Brandenburg and Berlin, even though a 1996 referendum on
joining the two states (Lnderfusion) was defeated by the voters in Brandenburg.
Since the failure of the 1996 referendum the two states have pursued a comprehensive
strategy of regional cooperation across a broad range of fields, including broadcasting,
education, research, culture, and judicial affairs. Th is gradual approach to territorial
Feder alism 81
integration and reorganization may establish the groundwork for another referen-
dum that would fi nally merge the two states.
At the heart of the pressure to reorganize the Lnder boundaries are the values
established by Article 29 of the Basic Law, which provides that the federal territory
may be reorganized to ensure that each Land be of a size and capacity to perform its
functions effectively. Any proposal for redrawing state boundaries, including the
creation of a new Land, needs the sanction of federal law and the approval of the ma-
jority of the voters in the affected territories. The proposal will not take effect if the
majority in any of the affected states rejects it. Nevertheless, a proposal for reorgani-
zation can be salvaged if it satisfies two conditions. First, the reorganization must
enjoy a two-thirds majority of the voters in the discrete portion of the state affected
by the reorganization. Second, the statewide rejection of the proposal may not have
achieved a two-thirds supermajority.
Southwest State arose out of the decision of the Allied powers to divide the former
states of Wrttemberg, Baden, and Hohenzollern into the three southwestern states
of Baden, Wrttemberg-Baden and Wrttemberg-Hohenzollern. Germans bridled
over this arrangement because it split up two historical states, partitioning relatively
integrated political communities. Article 118 of the Basic Law sought to cope with
this situation. A lex specialis, it modified the general policy of Article 29 by authoriz-
ing the southwestern states to reorganize themselves by mutual agreement.6 The
most likely possibilities were the restoration of the former states of Wrttemberg,
Baden, and Hohenzollern, or the consolidation of the three existing states into a
single state. Unable to agree on a plan of reorganization, the states effectively turned
the matter over to the federation. Article 118 empowered the federation to reorganize
these states by ordinary legislation in the absence of a tristate agreement.7
Southwest State arose under an earlier version of Article 29, which has since been
amended three times. In its original form it required the reorganization of the federal
territory as a whole by federal law. A majority of voters in a region affected by a pro-
posed boundary change had to approve the proposal in a referendum. In addition, to
fulfi ll the constitutional mandate for reform, the earlier version of Article 29 (4) re-
quired the Bundestag to reintroduce the law if the reform should be rejected by the
local voters in the referendum; if the law were to be reenacted by the Bundestag, a
majority of voters would have to approve the measure in a national referendum.
Article 118, as noted, circumvented these procedures with respect to the reorganization
of the southwestern states.

3.1 Southwest State Case (1951)


1 BVerfGE 14
[When tristate negotiations collapsed in November 1950, Parliament enacted
two reorganization statutes. The fi rst extended the terms of the Wrttemberg-
Hohenzollern and Baden legislatures, a measure designed to avoid new state
elections in April 1951 because the territorial reorganization of the states seemed
82 chapter thr ee
imminent, making new legislative sessions for the parliaments in the old states
unnecessary. The second specified the procedures by which the proposed fed-
erally sponsored referendum would be conducted. The proposal to merge the
three states into the single state to be called Baden-Wrttemberg would take
effect so long as a majority of voters in three of four regional electoral districts
established for purposes of the referendum approved. In a proceeding that in-
voked the Courts abstract judicial review jurisdiction as well as its federal-state
confl ict jurisdiction, the small and cohesive 150-year-old state of Baden chal-
lenged the constitutionality of these statutes on the ground that they violated
the principles of democracy and federalism: democracy because the electoral
districts were created in such a way as to dilute the votes of persons casting bal-
lots in Baden; federalism because the federal government is powerless to tam-
per with the legislature of an independent state. The result was the Courts fi rst
major decision and the fi rst decision in which the Court set aside a federal law.]

Judgment of the Second Senate. . . .
D. [First Reorganization Law]. . . .
2. . . . An individual constitutional provision cannot be considered as an isolated
clause and interpreted alone. A constitution has an inner unity, and the meaning of
any one part is linked to that of other provisions. Taken as a whole, a constitution
reflects certain overarching principles and fundamental decisions to which individ-
ual provisions are subordinate. Article 79 (3) makes it clear that the Basic Law makes
this assumption. Thus, this Court agrees with the statement of the Bavarian Con-
stitutional Court: That a constitutional provision itself may be null and void is not
conceptually impossible just because it is a part of the constitution. There are consti-
tutional principles that are so fundamental and so much an expression of a law that
has precedence even over the constitution that they also bind the framers of the
constitution, and other constitutional provisions that do not rank so high may be
null and void because they contravene these principles. From this rule of interpreta-
tion it follows that any constitutional provision must be interpreted in such a way
that it is compatible with those elementary principles and with the basic decisions of
the framers of the constitution. Th is rule applies also to Article 118.
3. The Basic Law has chosen democracy as the basis for the governmental system
(Articles 20, 28): The Federal Republic is a democratic, federal state. The constitu-
tional order in the states must conform to the constitutional state principle and
democratic principle within the meaning of the Basic Law. The federation guarantees
that the constitutional order of the states will conform to this political order.
As prescribed by the Basic Law, democracy requires not only that Parliament con-
trol the government but also that the right to vote of eligible voters is not removed or
impaired by unconstitutional means. . . . It is true that the democratic principle does
not imply that the term of a state legislature must not exceed four years or that it can-
Feder alism 83
not be extended for important reasons. But this principle does require that the term
of a state legislature, whose length was set by the people in accepting their consti-
tution, can be extended only through procedures prescribed in that constitution
(i.e., only with the consent of the people).
If the federation prevents an election scheduled by the state constitution without
the consent of the people of the state, then it violates the fundamental right of a citizen
in a democratic state, the right to vote, as protected by Article 28 (3) of the Basic Law.
4. Federalism is another of the Basic Laws fundamental principles (Articles 20,
18, 30). As members of the federation, Lnder are states with their own sovereign
power. Th is power, even if limited in subject matter, is not derived from the federation
but recognized by it. As long as it remains within the framework of Article 28 (1), a
states constitutional order falls within the states jurisdiction. In par ticu lar, it is ex-
clusively incumbent upon the state to determine the rules that govern the formation
of the states constitutional organs and their functions. The states competence also
includes setting regulations that determine how often and on what occasions citizens
may vote as well as when and under what conditions the term of a state legislature
expires. . . .
Th is rule also applies equally to legislation [enacted] pursuant to Article 118. It is
true that, in order to effect reorganization, the federal legislature has power to re-
trench the states of Baden, Wrttemberg-Baden, and Wrttemberg-Hohenzollern.
But it cannot disturb the constitutional structures of these states as long as they exist
in their entirety.
One may not argue that, by eliminating the three state legislatures in the process
of reorganization, the federation shortens their terms of office and consequently can
also extend them for a transitional period.
. . . Elimination of the state legislatures is a necessary consequence of the elimina-
tion of these states; thus [this act] does not constitute a curtailment of [the legisla-
tures] terms of office. By contrast, extension of the legislative terms may occur with
respect to existing state legislatures. Th is extension requires a special legislative act
that the federation cannot pass for the aforementioned reasons. A state cannot dis-
pose of its legislative authority. And the federation cannot by virtue of a states con-
sent obtain legislative authority that the Basic Law does not grant. Therefore, the fact
that Wrttemberg-Hohenzollern consented to the measure taken by the federation
is without legal significance.
5. Article 118 (2) only authorizes the Parliament to regulate reorganization and,
thus, draws constitutional limits. . . . The Parliament could extend the electoral terms
of the state legislatures only if . . . the matter cannot be effectively regulated by legis-
lation of individual states [Article 72 (2) of the Basic Law]. Th is limitation precludes
extending the terms of state legislatures. . . . Such authority remains primarily a mat-
ter for the states. . . .
6. In view of these legal restraints, practicality, political necessity or similar con-
siderations cannot confer unfettered discretion on the Parliament to enact any regu-
lations that seem reasonable and proper under the guise of reorganizing states. . . .
84 chapter thr ee
7. . . . The Federal Constitutional Court must hold a legal provision null and void if
it is inconsistent with the Basic Law. Hence we declare that the First Reorganization
Law . . . is null and void. . . . Th is declaration has legal force and is to be published in
the Federal Law Gazette. Th is declaration, along with the main reasons for the deci-
sion, bind[s] all constitutional organs of the federation . . . in such a way that legisla-
tive bodies may not again deliberate upon and enact a federal law with the same
content, nor can the Federal President sign such a law.
E. [Second Reorganization Law]. . . .
8. a. It has been asserted that a federation cannot eliminate a member state against
its populations will. As a rule, a federal constitution guarantees the existence and
territory of member states. But the Basic Law expressly deviates from this rule. Article
79 (3) guarantees as an inviolable principle only that the federation must be divided
into states. The Basic Law does not contain any guarantee for presently existing
states and their borders. On the contrary, it providesas follows from Articles
29and 118for changes in territorial conditions of individual states as well as for a
reorganization of federal territory that may entail the elimination of one or more ex-
isting states. Th is reorganization may even be effected against the will of the popula-
tion of the state concerned. . . . The Basic Law thus espouses a malleable federal
state. . . .
b. It follows from Article 29 (4), however, that an ordinary federal law cannot
supersede the will of a member states populationonly a new vote of the Parliament
and a referendum of the entire federal population can do so. Thus, only the will of the
population of the higher unit suffices, and not merely the will of the population of
one or several neighboring states.
The question [necessarily] arises, whether this principle also applies to regula-
tions pursuant to Article 118 (2). The provision that protects a states existence is an
outgrowth of the Basic Laws principle of federalism. . . . Th is determination imped-
ing interference with a states existence flows from the federalist principle set forth
in the constitution and thus is an important basic constitutional decision. There are
two arguments that the principle contained in Article 29 (4) also applies to Article
118. First, the legislative history of Article 118 might suggest this result. After all,
Article 118 emerged from Article 29 only at the end of deliberations in the Parliamen-
tary Council in the fourth reading of the law. Second, it is generally accepted that the
principles contained in Article 29 (1) are also to be applied to regulations pursuant to
Article 118. Nevertheless, the framers of the Basic Law . . . expressly declared in Article
118 that reorganization may deviat[e] from the provisions of Article 29. . . . Instead,
the deliberations in the Parliamentary Council, the public discussion in the past few
years, and consultations among the three state governments have produced a general
consensus that the present public-law conditions in the southwest area are especially
unsatisfactory and therefore ripe for immediate reorganization. Consequently, [the
consensus of the people] was to endorse a fast and simple reorganization. The opposi-
tion of one states population must not frustrate this [reorganization]. . . .
Feder alism 85
c. Baden claims that, aside from the principle contained in Article 29 (4), other
clauses of the Basic Law recognize the democratic principle (Articles 20, 28). . . .
Democracy means self-determination of the people. [Baden argues that the Second
Reorganization Law] deprives the people of Baden of this right because it forces them
to become part of a southwest state against their will.
That, in principle, a people must themselves determine their basic order . . .
certainly follows from the notion of democracy. . . . The state of Baden, as a member
of the federation, is an independent body politic. Th is body politic . . . possesses the
right of self-determination. Yet, it is decisive that Baden, as a member state of a fed-
eration, is not autonomous and independent but is part of a federal order that re-
stricts its sovereign power in various respects. . . . To a certain extent a tension exists
between the principles of democracy and federalism concerning the position of a
member state in the federation. There can be a compromise between the two only if
both suffer certain restrictions. In the case of reorga nization of federal territory
consigned to the federation, it is the nature of things that the peoples right to self-
determination in a state must be restricted in the interest of the more comprehensive
unit. Within the scope of what is possible in a federal state, the Basic Laws provisions
in Article 29 and in Article 118 safeguard the democratic principle by setting forth
that the bodies politic, respectively, of the federation and of the area to be reorga-
nized will ultimately decide.

Southwest State: Germanys Marbury v. Madison. Because of Southwest States sig-
nificance in German constitutional law the case has been compared with the U.S.
Supreme Courts Marbury v. Madison (1803).8 Marbury made it clear that the Su-
preme Court could refuse to enforce an unconstitutional law, and it put forth an
elaborate rationale in support of judicial review. No such rationale was necessary in
Southwest State because the Basic Law explicitly confers this power on the Constitu-
tional Court. The foundational character of Southwest State is rooted, instead, in the
general principles of constitutional interpretation stated therein and in the clarity
and forthrightnesswith which the Constitutional Court defi ned the scope of its
authority under the Basic Law. The Court boldly asserted that its judgment and the
opinion on which it rests were binding on all constitutional organs, even to the ex-
tent of preventing Parliament from debating and passing another law of the same
content.
For the fi rst time, too, the Constitutional Court laid down a fundamental tenet
ofinterpretation. Because the Basic Law represents a logical unity, said the Court, no
clause or provision may be interpreted independently; it must be seen in relationship
to all other clauses and to the constitution as a whole. Southwest State was also the
fi rst case in which the Court endorsed the then-novel notion of an unconstitutional
constitutional amendment. A constitution, said the Court, has an inner unity, and
the meaning of any one part is linked to that of other provisions. Taken as a whole, a
constitution reflects certain overarching principles and fundamental decisions to
86 chapter thr ee
which individual provisions are subordinate.9 Thus, even a par ticu lar constitutional
provision or constitutional amendment may be unconstitutional if it confl icts with
these overarching principles and fundamental decisions. Democracy and federal-
ism, said the Court, are among these overarching principles. The Court also acknowl-
edged the existence of a higher law, transcending positive law, which binds the framers
of constitutions as much as it does legislatures. In the end, the Court made it very clear
that any constitutional provision or amendment in confl ict with this higher law or the
fundamental principles of the Basic Law would be judged unconstitutional.
Baden had argued, on the basis of the constitutions inner unity, that Article 118 of the
Basic Law is invalid because it contradicts the general policy of Article 29. Recall that
Article 118 permits the reorganization of the federal territory without regard to the
provisions of Article 29. Article 118 authorizes the federation to consolidate the south-
western states over the objection of Baden and without resorting to the national refer-
endum required by Article 29. (With respect to the Lnder of Berlin and Brandenburg,
a 1994 amendment to the Basic LawArticle 118aprovides a similar exception to the
policy of Article 29 pursuant to which the two Lnder may be combined into a single
state by agreement between the two states and with the participation of their elector-
ates.) The Constitutional Court, however, sustained the procedural aspects of the ref-
erendum proposal, noting that the Basic Law, while requiring the division of the federal
territory into states, does not guarantee their status quo. An otherwise valid reorgani-
zation proposal may abolish a particular state, even against the will of its population.

Territorial Reorganization after Southwest State. In 1952, pursuant to a legitimate


referendum and in accordance with the Courts instructions, the new state of Baden-
Wrttemberg, which took the place of the three former states, came into being. Unlike
the hostile Jeffersonian response to Marbury v. Madison,10 the general political reac-
tion to Southwest State was deferential and compliant. Shortly after the Court issued
its Southwest State decision, Justice Gerhard Leibholz wrote:
It may be said that the raging political controversies which ensued from the disputes
in southwestern Germany, especially between Wrttemberg and Baden, subsided
visibly as a result of the judgment of the Federal Constitutional Court, which was
readily accepted by all parties concerned. Even at this early date there can be no
doubt that the judgment of the Court had a pacifying influence on the political life
of all states involved in the controversy, and that it cleared the political atmosphere
considerably. Beyond that, it had a politically unifying effect which proved benefi-
cial to the new German state as a whole.11
The mollifying effect of Southwest State also proved to be enduring. In 1970 there was
another referendum on the further existence of Baden-Wrttemberg among the former
citizens of Baden. Eighty-two percent of the participants voted in favor of the states
existing borders.
There have been no further changes in the boundaries of the original West German
states. The reintegration of the Saarland into the Federal Republic, in 1959, did not
Feder alism 87
affect state boundaries. Reunification also did not generate noteworthy territorial
reorganization. The boundaries of the new Lnder admitted to the Federal Republic
from the former East Germany were settled in nonbinding referenda in 1990, a pro-
cess that produced few changes in the territorial lines of these states. The most sig-
nificant territorial impact of reunification, as noted earlier, is the still-planned merger
of Berlin and Brandenburg.
The only serious effort to overhaul the entire federal structure was Hesses
attempt to compel the federation to change the boundaries of the Lnder under the
compulsory reorganization provision of Article 29. The Constitutional Court turned
back this attempt in the Territorial Reorganization Case (1961).12 Hesse claimed that it
could not adequately plan its own future as an autonomous state given the uncer-
tainty surrounding possible federal reorganization. In the Courts view, the time and
character of territorial changes were for the federation to decide in the interest of the
Federal Republic as a whole.13 By this time public sentiment for major territorial
change had largely disappeared and, in 1969, Article 29 was amended to make any
such change optional rather than obligatory.14
In the Oldenburg State Case (1978) a majority of the residents of the former
Weimar-era state of Oldenburg, which was absorbed into Lower Saxony in 1946,
voted in favor of reestablishing Oldenburg as an independent state. In addition to
denying standing to those invoking the rights of the former state, the Constitutional
Court held that the Bunds authority to reorganize the federal territory was a power
conferred neither in the interest of the existing states nor for the preservation of the
interests of former states. In adhering to the basic teaching of Territorial Reorganiza-
tion, the Court declared that the Basic Law permits territorial change only at the
discretion of the federation and for the well-being of the entire nation.15
Nevertheless, additional amendments to the Basic Law, such as proposals to fur-
ther consolidate the Lnder, could radically alter the Courts view of the federations
discretion on the question of territorial reorganization. But in the Franken State Case
(1997)16 the Court showed no sign that it would change the balance as a matter of
constitutional interpretation. The Court accepted the standing of a representative of
the individuals who endorsed an application seeking the creation of a new state
called Franken, consisting of a region straddling the borders of Bavaria, Baden-
Wrttemberg, and Thuringia. But the Court rejected the claim that the federal min-
ister of the interiors decision to refuse to proceed with a referendum on the applica-
tion constituted a violation of Article 29 of the Basic Law.17 The Court held that the
minister of the interior properly concluded that the proposed new state did not qualify
as a contiguous residential and economic area as required by Article 29 (4) of the
Basic Law. In support of this conclusion the Court noted that the significant amount
of daily commuter traffic out of the proposed state undermined claims of the regions
economic cohesion.

The Nature of German Federalism. Constitutional theorists have long disputed the
nature of the federal state (Bundesstaat) created by the Basic Law. What elements of
88 chapter thr ee
the unitary state (Einheitsstaat) does it contain? What elements of a confederation
(Staatenbund)? Both forms of territorial organization have figured prominently
inGerman constitutional history. Is the Bundesstaat a two-tier (zweigliedrig) or a
three-tier (dreigliedrig) structure? Zweigliedrigkeit suggests that the parts (states)
are subordinate to the whole (federation). Dreigliedrigkeit suggests that national and
state governmentsboth equal and coordinatecombine to form a third state,
namely the state as a whole (Gesamtstaat). Konrad Hesse, a leading commentator on
the Basic Law and a Federal Constitutional Court justice from 1975 to 1987, defi ned
the Federal Republic as a unitary federal state, suggesting a strong tilt toward cen-
tralism.18 Others, such as Ulrich Scheuner, accentuated the Basic Laws federalist
underpinnings.19 Still others emphasized the solidarity contained in the idea of a
strong federal union. Theodore Maunzs view is representative: The Bundesstaat is
not a battle of member states against the whole, but rather a joint effort for achieving
the ends assigned to each level [of government] under the Basic Law.20
The argument over the nature of the Bundesstaat assumed considerable impor-
tance in 1957, when the Federal Constitutional Court decided the Concordat Case
(1957; no. 3.8), which involved an area of public policy over which both the states and
the federation could claim competence. Concordat appeared to embrace the three-
tier concept. The Court upheld the legal validity of an international agreement that
had been negotiated before the establishment of the Federal Republic of Germany.
That agreement denied the successor Federal Republic of Germany any control over
the education policy of the individual states of the federation. Several years later,
however, in Territorial Reorganization (1961),21 the Court appeared to accept the two-
tier theory. The Bundesstaat as the state of the whole [Gesamtstaat], said the Court,
does not consist of an independent central state [Zentralstaat] but only of a central
organization which, together with the organization of the Lnder, carries out, within
the sphere of operation prescribed by the Basic Law, all those governmental func-
tions that devolve upon a unified state organization in a unified state. The Basic Law
divides authority only between the organs of the federation and those of the states,
whereby the Gesamtstaat arises out of an alliance among the states in the form of a
federation.22

State Government and the Principle of Homogeneity. At the most basic level, the
authority of the Lnder in the German federal system is determined by their rela-
tionship to the federation and the Basic Law. Th is relationship, which necessarily
must be clarified before pursuing a discussion of the Basic Laws division of legisla-
tive and administrative authority between the federation and the Lnder, is inherent
to federal systems. For example, to what extent must state and local governments
comply with the federal constitutional order? Article 28 of the Basic Law provides the
answer: The constitutional order in the Lnder must conform to the republican,
democratic, social state, and constitutional state principles, . . . Th is provision, al-
though labeled the homogeneity clause, is not a prescription for uniformity in gov-
ernmental organization. Article 28 (1) has been generally understood to require
Feder alism 89
states and localities to adhere to the basic principles, including democracy, the social
state principle and the constitutional state principle.23 Th is has been interpreted to
mean representative political institutions and governmental structures indispens-
able to the operation of a federal state. It also incorporates the principle of subsidiar-
ity. What is important here is local autonomy, not a par ticular structural form. In
addition, the formalities of the governmental process must be organized in such a
way as to make the social and constitutional state (sozialer Rechtsstaat) possible. But
how much flexibility do state and local governments have in establishing institu-
tional procedures for the adoption of public policies? Th is was a central issue in the
Startbahn West Case (1982),24 the result of a controversy arising out of Hesses re-
fusal to hold a referendum, as demanded by a grassroots initiative, on the Land
governments decision to expand Frankfurts international airport. Hesses state gov-
ernment and constitutional court rejected the proposed referendum on state consti-
tutional grounds and refused to consider related issues of federal law deemed to
confl ict with the airport expansion proposal, including the threat to the constitu-
tional right of personality (Article 2 (1)) allegedly posed by the further destruction
of the environment. The applicants (invoking the Federal Constitutional Courts
jurisdiction over other public-law disputes) and the complainants (prosecuting a
constitutional complaint) argued that the case could not be decided by reference to
the state constitution alone and that the issues in controversy would have to be set-
tled by the Federal Constitutional Court in accordance with federal constitutional
principles.
In a significant victory for the Lnder, the Court ruled that Hesses exclusive reli-
ance on state law in refusing to proceed with the referendum did not violate a funda-
mental right under the Basic Law. After remarking that Land and federal constitutional
law are separate domains, the Court said:
As members of the federation, the Lnder are states vested with their own sovereign
powerseven though limited as to subject matterderived not from but rather
recognized by the federation. . . . The Basic Law requires only a certain degree of
identity between federal and Land constitutions. To the extent that the Basic Law
does not provide otherwise the Lnder are free to construct their constitutional or-
ders. Their discretion in this respect most certainly extends to determining whether
the Land legislature should reserve to itself the passage of a law or provide for its
approval in a popu lar referendum. 25
Article 29 of the Basic Law allows referenda on the federal level in the limited in-
stance of territorial reorganization. The Court said that this limit on the use of refer-
enda by the federation does not prevent the states from employing referenda in other
situations. In short, no confl ict with federal prerogatives could arise in this case
because the decision to hold a referendum was a matter of the Lands discretion.
The Court went on to say that its power of review in such a case was restricted to
examining the constitutionality of Land law and state executive or judicial actions.
Because Hesse rejected a proposed referendum measure, the Constitutional Court
90 chapter thr ee
had no authority to become involved. With this the Court confi rmed the authority of
a Land constitutional court to review a state law under its own constitution, even
when a case before it involves a fundamental right under the Basic Law. To suggest, as
the applicants and complainants had done in Startbahn West, that only the Federal
Constitutional Court could hear such cases would seriously undermine the integ-
rity of Land constitutional law.26 Since Startbahn West the Court has gone a step
further, recognizing a Land constitutional courts authority to review the application
of federal law for conformity with state constitutional norms (recalling again that the
Lnder bear much of the responsibility for administering federal law), even when
the relevant Land constitutional law is identical to federal constitutional protec-
tionsthat the Federal Constitutional Court might otherwise have been competent to
examine.27

doctrine of federal comity

Early on, the Constitutional Court oscillated between the two-tier and three-tier
concepts of federalism.28 Eventually, however, it settled on a more pragmatic ap-
proach to the federal-state relationship in an effort to weigh and balance the vital in-
terests of both state and national governments. Th is concern for balance and practi-
cality induced the Court to proclaim the principle of federal comity or pro-federal
behavior (Bundestreue), which obligates the federation and Lnder to consider each
others interests in exercising their authority. The doctrine of comity, which the Court
invoked for the fi rst time in the Housing Funding Case (1952),29 does not appear in the
text of the Basic Law. It is, rather, an unwritten principle inferred by the Court from
the various structures and relationships created by the constitution. German federal-
ism, said the Court, is essentially a relationship of trust between the federation and
Lnder. Each has a constitutional duty to keep faith (Treue) with and respect the
rightful prerogatives of the other. The doctrine received special emphasis in the First
Broadcasting Case.

3.2 First Broadcasting Case (1961)


12 BVerfGE 205
[The television controversy grew out of Federal Chancellor Konrad Adenauers
effort to create a federally operated television station. One major television
channel controlled by the states was already operating in the Federal Republic.
Adenauer, who was also the leader of the conservative Christian Democratic
Union, was at the time strongly opposed by Lnder that were under the control
of the center-left Social Democratic Party. Finally, and notwithstanding oppo-
sition from both Social Democratic and Christian Democratic states, Adenauer
established a second television station by decree. Several Lnder immediately
challenged the validity of the decree, invoking the Constitutional Courts juris-
Feder alism 91
diction over federal-state confl icts. The Lnder relied on Articles 30 and 70 (1)
of the Basic Law, claiming that these provisions confer no such power on the
federation. In response, the federation relied on an earlier version of Article 87 (1)
as well as Article 73 (7), which conferred exclusive authority on the federation
to legislate in the field of and to administer postal and telecommunication
ser vices.30]

Judgment of the Second Senate. . . .
D. II. 3. b. The Basic Law regulates the legislative authority of the federation and Ln-
der on the basis of a principle that favors the jurisdiction of the states. . . . The fed-
eration has legislative authority only insofar as the Basic Law confers it (Article 70
(1)). Thus, as a rule, federal legislative powers can be derived only from an express
statement in the Basic Law. In cases of doubt there is no presumption in favor of the
federations authority. Rather, the systematic order of the Basic Law demands a
strict interpretation of Article 73 [and other provisions that confer power on the
federation].
In addition, broadcasting is a cultural matter. To the extent that cultural affairs
are subject to governmental regulation at all, the Basic Law has made a fundamental
decision (Articles 30, 70 et seq., and 83 et seq.) that they come within the authority
of the Lnder. . . . Exceptions occur only when special provisions of the Basic Law
provide that the federation has authority. Th is fundamental decision of the consti-
tution, a decision in favor of the federal structure of the nation in the interest of an
effective division of powers, specifically prohibits the assumption that the federa-
tion has authority over cultural matters. The federation has authority only when
there is a clear exception spelled out in the Basic Law. Th is sort of provision is lack-
ing here.
4. The public interest demands the regulation of radio communications
something only the federation can do effectively. Th is is also true of broadcasting. To
prevent chaos, a number of matters must be subject to uniform regulation: allocating
and delimiting the frequency ranges of stations, determining their locations and
transmission strength . . . control of radio communication, protecting transmission
systems from widespread and local disturbances, and implementing international
agreements.
Article 73 (7) makes it possible to enact uniform regulations that are indispens-
able to these and similar matters. But implementing this objective does not require
that, in addition to technical questions of radio communication, federal law also
[should] regulate the production of broadcasts. . . .
5. An historical interpretation of the term telecommunication ser vices does not
lead to a different conclusion. . . .
6. a. The federation is not entitled to any further legislative authority over broadcast-
ing on the basis of a nexus with the subject matter [Sachzusammenhang]. Regulating
92 chapter thr ee
studio technology and program production . . . is not an indispensable requirement
for regulating technical matters relating to broadcasting.
[The notion of Sachzusammenhang (loosely translated, having a nexus with
the subject matter) suggests an implied power. As used here it means that the
federation may regulate a subject matter not within its express powers if it can-
not avoid such regulation when making law in an area where it has express
constitutional authority. One example would be the federal regulation of court
fees. Th is subject is so closely related to the federal governments authority in
the fields of civil law and court procedure that any regulation of the latter nec-
essarily involves a regulation of the former.]
Transmitting programs, on the one hand, and producing programs, on the other
hand, are undertakings that [legislatures] can treat separately. In this respect
broadcasting is not a single subject matter that must be regulated uniformly by
the federation. . . .
c. The federation has no authority to regulate broadcasting beyond the technical
aspects of transmission. . . .
7. b. The federation must . . . observe the principle of comity. . . . Th is principle
would be violated if the federation today used its authority to regulate the telecom-
munication system so as to deprive existing broadcasting companies of the right to
dispose of transmitting facilities that they own and operate. The same would be true
if the federation deprived these companies of their frequency ranges and, in distrib-
uting frequencies to be used now or in the future, did not duly consider the compa-
nies in light of state regulations concerning producers of programs. . . .
E. II. In the German federal state the unwritten constitutional principle of comity,
the reciprocal obligation of the federation and the Lnder to behave in a pro-federal
manner, governs all constitutional relationships between the nation as a whole and
its members, and the constitutional relationships among its members. . . . From this
principle the constitution has developed a number of concrete legal obligations. In
considering the constitutionality of the so-called horizontal fi nancial equalization,
this Court said: Federalism by its nature creates not only rights but also obligations.
One of these obligations consists in fi nancially stronger states giving assistance
within certain limits to fi nancially weaker states. . . . Furthermore, in cases where a
law demands that the federation and the states come to an understanding, this con-
stitutional principle can create an increased obligation of cooperation on all parties
concerned. . . . In the decision concerned with granting Christmas bonuses to public
employees this Court held that states must maintain loyalty to the federation
(Bundestreue) and, therefore, show consideration for the overall fi nancial structure
of the federation and states. . . . Th is legal restraint, derived from the concept of co-
mity, becomes even more evident in the exercise of legislative powers: If the effects
of a law are not limited to the territory of a state, the state legislature must show con-
sideration for the interests of the federation and other states. . . . The constitutional
principle of comity can further imply states duty to observe international treaties
Feder alism 93
concluded by the federation. . . . Finally, under certain circumstances, loyalty to
the union can obligate a Land to use its supervisory authority over local govern-
ments to intervene against municipalities that encroach upon an exclusive federal
competence. . . . In the execution of federal authority over the field of broadcasting,
the principle of comity is also of fundamental importance. . . .
Previous decisions show that additional concrete obligations of the Lnder can be
developed from this principleobligations that surpass constitutional obligations
explicitly laid down in the Basic Law. . . .
The case at hand offers an occasion to develop the constitutional principle of
comity in a different direction; comity also governs the procedure and style of the
negotiations required in the constitutional coexistence of the federation and its
constituent states as well as between the Lnder inter se. In the Federal Republic of
Germany all states have the same constitutional status; they are states entitled to
equal treatment when dealing with the federation. Whenever the federation tries to
achieve a constitutionally relevant agreement in a matter in which all states are inter-
ested and participating, the principle of comity prohibits the federation from trying
to divide and conquer, that is, from attempting to divide the Lnder, to seek an
agreement with only some of them and then force the others to join. In negotiations
that concern all Lnder, the principle of comity also prohibits the federal govern-
ment from treating state governments differently because of their party orientation
and, in particular, from inviting to politically decisive discussions only representatives
from those state governments politically close to the federal government and exclud-
ing state governments that are close to opposition parties in the Parliament. . . .
The year-long efforts to reorganize the broadcasting system entered a new phase
in early 1958 when the federal government considered drafting a federal law. After the
draft of a federal law had been discussed several times during 1959 with Land repre-
sentatives, the Lnder, in January 1960, agreed to form a commission consisting of
two Christian Democratic and two Social Democratic members of state govern-
ments. Th is commission was empowered to represent the state governments in
negotiations with the federation. The federal government, however, never let this
commission participate in negotiations. Only one of its members, the Christian
Democratic Minister-President of the Rhineland-Palatinate, participatednot in
his role as a member of the commission, but as a member of his partyin a number
of debates between politicians and deputies of the Christian Democratic Union and
the Christian Social Union. . . . The fact that the Minister-President of the Rhineland-
Palatinate informed the state governments led by Social Democratic minister-
presidents of these plans in a letter dated 16 July 1960, and at the same time invited
them, together with the other minister-presidents, to a discussion of these plans on
22 July 1960, did not release the Federal Government from its obligation to confer
directly with all state governments concerning the plan it had drafted. That it ne-
glected to do so violated the principle of comity.
The federal governments behavior toward the Lnder in the days leading up to the
creation of the federal television broadcasting company also was incompatible with
94 chapter thr ee
the principle of comity. The federal government knew that the minister-presidents of
the states . . . had their fi rst opportunity to discuss the plan to create a limited part-
nership and a second television network on 22 July 1960. The minister-presidents, in-
cluding those of the Christian Democratic Union and the Christian Social Union,
did not fully accept the federal governments proposal, but made counterproposals
by a letter of 22 July 1960thus fully informing the federal government of the result
of these discussions. Nevertheless, the federal government insisted that the Lnder
approve the corporate contract on 25 July 1960 even though the states had played no
role in draft ing the contract. The federal governments letter, dated 23 July 1960, was
mailed in Bonn on 24 July 1960 at 5:00 p.m. and reached the addressee, the Minister-
President of Rhineland-Palatinate, on 25 July 1960 at 4:15 p.m. That is, it reached him
at a time when the corporate contract had already been notarized. . . . Such a pro-
ceeding is blatantly incompatible with the principle of comity, even if the federal
government had reason to be displeased with the delay tactics pursued by some Land
governments. At issue here is not whether the federal government could consider
negotiations with the states as having failed, allowing it to pursue an alternative
course it believed to be constitutional, . . . but whether the Land governments as con-
stitutional organs of member states of the Federal Republic of Germany could expect
the federal government to disregard their counterproposals with a fait accompli. . . .

The Jurisprudence of Comity. The Federal Constitutional Court did not invent the
principle of comity. It played a significant role in the constitutional theory concerned
with federal-state relations under the Imperial Constitution of 1871. The Financial
Equalization Act Case (1952),31 which approved a federal statute providing for the
transfer of tax revenues from the fi nancially stronger to the fi nancially weaker states
(a component of the Basic Laws fi nancial constitution, which is treated in greater
depth later in this chapter), alluded to this history in assigning comity a major place
in the Federal Republics constitutional jurisprudence. In several subsequent cases
the Court seized on the principle of comity to vindicate the fi nancial interests of vari-
ous Lnder, even when the letter of the constitution might have suggested a contrary
result.32 Still later, in the Atomic Weapons Referendum I Case (1958; no. 3.7), the Atomic
Weapons Referendum II Case (1958), and the Concordat Case (1957; no. 3.8),33 the
Court invoked the principle to admonish the Lnder and the federation to respect
the primacy of the other in their respective fields of authority. As Blair suggested,
these decisions establish for the states in their relations with each other and with the
greater whole, and for the federation in its relations with the states, a duty in consti-
tutional law to keep faith (Treue) and reach a common understanding with respect
to certain matters of public policy.34
In Atomic Weapons Referendum II, for example, the Court rebuked Hesse for per-
mitting local referenda within its borders.35 The Court said that Hesses failure to ban
the referenda (aimed at discrediting the federations pursuit of a defense policy that
involved the procurement of nuclear weapons) violated the principle of federal comity.
Feder alism 95
In its defense, Hesse advanced two arguments: fi rst, the federal government had
itself offended the constitution by manipulating public opinion in such a way as to
undermine the principle of majority rule implicit in the concept of democracy;36
second, the Land had not disregarded the principle of comity because it acted out of
goodwill and in the best interest of the Federal Republic. Both arguments, said the
Court, were incapable of judicial resolution. It concluded its opinion, however, by
noting that a decision fi nding a violation of the principle of comity did not imply a
spirit of ill will on the part of a Land or a reproach (Vorwurf) of the state. Comity,
said the Court, is exclusively an objective idea of constitutional law, and it assumes
that the participants, with respect to a given subject matter, are convinced subjec-
tively of the constitutionality of their mutual dealings.37
After First Broadcasting the Court was less inclined to decide federal-state con-
fl icts on the basis of an express appeal to comity. Theoretical and practical reasons
prompted this result: theoretical because inferences from the structure of federalism
proved to be extremely indeterminate; practical because the sharp confl icts of the
1950s paled before the advance of cooperative federalism, pursuant to which levels
of government worked together voluntarily to achieve certain policy objectives.38
References to comity continued to appear in constitutional cases but the Court
seemed to regard it as a principle of decreasing vitality. Th is was exemplified by a de-
cision from 1976 in which the Court declared: The principle of comity is of an acces-
sory nature, which, unto itself, does not establish obligations (to act, to refrain from
acting, or to tolerate) on the part of the federation or the Lnder. This means the
principle of comity can only take on meaning within a legal relationship with its basis
elsewhere (whether statutory or contractual) or a legal obligation with its basis in
the law.39
After an apparent resurgence of the principle in the 1990s,40 the Court reversed
course and again began to fi nd that alleged violations of comity, standing alone, did
not present a constitutional question justifying the exercise of its jurisdiction. In the
Pofalla I Case (2001) the Court emphasized that the principle merely is an accessory
to underlying legal relationships and obligations: comity does not in itself create a
material constitutional relationship between the federation and a Land. It is of an
accessory nature and does not on its own establish any independent duties for either
the federation or a Land. . . . The principle of comity acquires significance only in the
context of a statutory or contractual, that is to say, a legal, relationship with its basis
elsewhere. It mitigates or varies those other rights and duties or supplements them
with secondary duties. . . .41

apportionment and distribution of revenue

The Basic Law links federal-state competences under several provisions. These pro-
vide that certain public tasks can be carried out jointly when both levels of government
consent (Articles 91a, 91b, 91c, 91e and 98 (3)). At one time the Basic Law authorized
96 chapter thr ee
federal framework legislation to assist the Lnder in meeting their responsibilities
in fields such as higher education and regional planning (Article 75 [repealed in
2006]).
Our present focus, however, is on Articles 104a through 115, the section of the
Basic Law known as the fi nancial constitution. Here, the Basic Law thrusts the Bund
and Lnder into an intricate web of intergovernmental relations in the area of public
fi nance and fiscal policy, relations involving the collection, apportionment, and
distribution of public revenue. Several of these provisions defi ne the tax authority of
each level of government and provide for the apportionment of tax revenues along
vertical (from federation to Lnder) and horizontal (Land to Land) lines.42 Th is sys-
tem was meant to advance Germanys postwar commitment to equivalent living
conditions among the Lnder. In advancing this objective, the Basic Law sought to
avoid the extremes of the 1871 (Imperial) and 1919 (Weimar) Constitutions. The
former made the Reich the dependent of the states, whereas the latter made the
states the dependents of the Reich. 43 The tension between the federalist and cen-
tralizing impulses represented by these extremes continues to bedev il the Basic
Laws fi nancial constitution. The tension is between autonomy and solidarity (Span-
nungsfeld von Autonomie und Soldaritt), and it seems to flow from the Basic Laws
defi nition of the Federal Republic as a social federal state. With its grant of auton-
omy to the Lnder, federalism competes with the centralizing tendencies of the
Basic Laws social state principle.44 Accordingly, the Basic Laws apportionment and
distribution of public funds takes place against the backdrop of a combustible mix
of state autonomy, often contentious social welfare policy, and competing claims to
tax revenue.
Unsurprisingly, the constitutional provisions that regulate taxation and bud-
getary matters have been the subject of more amendments than other parts of the
Basic Law. Given the details of fiscal governance laid out in the Basic Law, one can
see why. In Articles 104a through 108, for example, the Basic Law itemizes the sources
of tax revenue for each level of government, provides for their distribution among
these levels, prescribes a complex formula for the horizontal equalization of fi nancial
resources among the Lnder, and specifies the costs that the federation and Lnder
shall bear in meeting their obligations under domestic and European law. In addi-
tion, Articles 109 through 115 lay down the guidelines of budget management by the
federation and the Lnder, including such matters as deficit spending, limits on bor-
rowing, and the auditing of revenue and spending accounts. What is more, nearly all
federal laws enacted to carry out the bulk of these provisions require the consent of
the Bundesrat, thus placing in the hands of the Lnder enormous influence over the
administration of tax and spending policies. Little wonder that the Bundestag and
Bundesrat often found themselves in gridlock over fiscal policy.
The federalism reforms of 2006 sought to streamline this system of fiscal relations
between levels of government by cutting back on the powers of the Bundesrat and by
drawing brighter lines of authority between federation and Lnder. We focus atten-
tion here on fiscal and budgetary reform and reserve for later a discussion of the
Feder alism 97
changes in the general distribution of legislative power between levels of government.
The most important of the 2006 reforms involved the disbursement of funds between
federation and Lnder and the corresponding powers of the Bundesrat. Significant
among these reforms was an amendment making it unnecessary to secure the Bundes-
rats consent to federal laws providing money grants that are to be partially funded
and administered by the Lnder. Another important change was the new Article 104b
permitting federal grants-in-aid to the Lnder and municipalities for investments nec-
essary to maintain overall economic equilibrium, to equalize economic capabilities
among the Lnder, and to promote economic growth.45 Previously, under Article 104a,
these lower levels of government had less flexibility in the investment of these funds.
Th is provision differs from the old Article 104a (4) in that it limits the reach of grants-
in-aid, imposes time limits and periodic reviews on such grants, and requires that the
aid granted by the federation be reduced in stages over time.46

Equalization of Tax Revenue. Articles 106 and 107 of the Basic Law provide for the
distribution, both vertically and horizontally, of the tax revenue in a complex, multi-
stage system known as fi nancial equalization (Finanzausgleich). The fi rst stage of this
process, laid out in Article 106, provides for the vertical distribution of tax revenue.
While some minor tax proceeds are assigned exclusively to the federation or the Ln-
der, the largest portion of these proceeds (derived mainly from income, corporation,
and turnover [value-added] taxes), is shared equally between the two levels of gov-
ernment.47 The motor vehicle tax was another large source of revenue. Under the
original version of Article 106, these tax receipts accrued to the Lnder. The fiscal-
federalism reform amendments of 2009, however, transferred the motor vehicle tax
to the federation but the Lnder were given a share of these proceeds under a federal
law subject to the Bundesrats consent. The turnover tax, another large source of
revenue, now is awarded in ratios determined by a federal law that also requires the
Bundesrats approval.
Article 107 provides for the horizontal or second stage of the equalization process.
On this plane, population and production generally determine how tax revenue is to
be distributed among the Lnder and municipalities. For example, the states share of
the turnover tax is distributed on a per capita basis. But federal law enacted with the
Bundesrats consent may require the redistribution of as much as one-quarter of the
states share of the turnover tax to Lnder with per capita revenues below the average
of all states combined. Article 107 (2) prescribes still a third stage of horizontal distri-
bution aimed at ensur[ing] a reasonable equalization of the disparate fi nancial ca-
pacities of the Lnder. Th is requirement is controversial because it calls for direct
state-to-state transfers of revenue from fi nancially stronger to fi nancially weaker Ln-
der, a status determined by a complicated scheme that contrasts the tax revenues
that a Land should have (fiscal needs) with those that it actually has (fiscal capac-
ity).48 Article 107 (2) completes the Basic Laws fi nancial equalization regime with a
fourth stage that permits the federation to make supplementary grants from its
own revenues to the fi nancially weaker Lnder to assist them in meeting their general
98 chapter thr ee
fi nancial obligations. Th is system, and the federal laws enacted to implement it, have
given rise to several constitutional confl icts between federal and Lnder govern-
ments, and the Federal Constitutional Court has played no small role in that history,
having handed down four major fi nancial equalization cases.
Before discussing those cases, it is worth noting some changes made to the Basic
Laws budgeting provisions by the fiscal-federalism reforms of 2009. Article 109, for
example, specifies the fiscal duties of the federation and the Lnder under obligations
incurred from the legal acts of the European Community for the maintenance of
budgetary discipline. A new change also constitutionalizes a specified ratio in the
amount of funding for which both levels of government will be responsible as a result
of sanctions imposed by the European Union. Similarly, detailed limits on borrow-
ing are set forth in a major amendment to Article 115. Finally, a new Article 109a
establishes a Stability Council to supervise the budgetary management of both the
federation and the Lnder.
The Federal Constitutional Court was called upon to resolve disputes arising out
of the Basic Laws command for fi nancial equalization as implemented by the fi rst
federal law fi lling in the details and coordinating the regime. In the Financial Equal-
ization Act Case, the Court sustained a horizontal, state-to-state equalization mea-
sure that required two fi nancially stronger Lnder to subsidize several fi nancially
weaker Lnder up to specified amounts. The fi nancially stronger Lnder argued
that the dictated amounts violated the central principle of fi scal federalism articu-
lated by Article 109 of the Basic Law, which declares that the federation and the
Lnder are autonomous and independent of each other with regard to their respec-
tive budgets. In sustaining the statute, the First Senate conceded that there are
constitutional limits to the federations power to enforce horizontal fi nancial ad-
justments. The equalization statute would offend the principle of federalism, said
the First Senate, if it were to weaken the fi nancial capacity of the contributing
states or lead to a fi nancial leveling of the states. But such was not the case and, in
any event, the First Senate concluded that the Lnder have duties as well as rights.
Where the fi nancially stronger Lnder are concerned, one of these duties is to assist,
within limits, the fi nancially weaker Lnder. 49 In the Finance Equalization I Case
(1986) the Second Senate invalidated an equalization statute for its failure to en-
sure, in accordance with an earlier version of Article 107 (2), reasonable fi nancial
equalization between financially stronger and financially weaker Lnder; whereupon,
in a classic example of an admonitory decision (Appellentscheidung), the Court in-
structed the Bundestag to change the basis for allocating tax revenues among the
Lnder by fiscal year 1988.50
The Finance Equalization II Case (1992) involved the city-states of Bremen and
Hamburg and the state of Saarland. Bremen and Hamburg argued that their transfer
payments to other states were too large in view of their own outlays for the mainte-
nance and improvement of harbor facilities that also benefited other states. The
Court rejected this claim but found that Bremen had been the victim of constitu-
tional discrimination because the city had received no transfer payments for several
Feder alism 99
years and later received less fi nancial aid than Saarland, even though Bremen had
substantially higher debts than Saarland. Finally, the Court ruled that the federa-
tions vertical payments to Bremen and Saarland had been too low in view of the seri-
ous budgetary problems of both Lnder. Accordingly, the federation and other Lnder
would be required to assist both Lnder with appropriate measures.51
Following the Courts 1992 decision, the federal laws implementing the fi nancial
equalization regime were reformed, in part to incorporate the new, fi nancially weaker
Lnder of the former East Germany in the fi nancial equalization scheme beginning
in 1996. The new system took full advantage of the one-quarter redistribution of the
states share of the turnover tax in the second stage of equalization, awarding an
amount thereof to the fi nancially weaker Lnder to allow them to achieve 92 percent
of the average of per capita tax revenue of all Lnder combined. In the horizontal
state-to-state fi nancial equalization of the third stage of the fi nancial equalization
process, the new system required direct interstate transfers in amounts necessary to
guarantee that the fi nancially weaker Lnder achieved 95 percent of the average of
per capita tax revenue of all Lnder combined. Finally, the new system obliged the
federation to make supplementary grants in the fourth stage of equalization in
amounts necessary to bring the fi nancially weaker Lnder to 99.5 percent of per cap-
ita tax revenue of all Lnder combined.
The Lnder saddled with the obligation to pay in this horizontal fi nancial equal-
ization scheme had traditionally been governed by conservative parties aligned with
the long-serving conservative parliament and federal government that had enacted
the 1993 reform. The election of a center-left parliament and federal government in
1998 caused these fi nancially stronger, conservative Lnder to chafe at the new fed-
eral masters demand that they transfer revenues to the fi nancially weaker Lnder.
Only six years removed from the Courts previous ruling and the attending, sig-
nificant reform of the relevant law, the fi nancially stronger Lnder again brought
challenges to Germanys confounding fi nancial constitution and its implementing
legislation before the Federal Constitutional Court. Betraying a quixotic desire to put
the persistent challenges to the Basic Laws fi nancial equalization provisions to rest
once and for all, the Court issued its decision in the Finance Equalization III Case. It
was a comprehensive, technical, and prescriptive opinion covering eighty pages of
the Courts official reporter.

3.3 Finance Equalization III Case (1999)


101 BVerfGE 158
[The results of the fi nancial equalization scheme in 1998 were a testament to
Germanys commitment to equivalent living conditions in the various Lnder.
On the one hand, the top fi ve tax-generating Lnder (Hesse, Baden-
Wrttemberg, Hamburg, Bavaria, and North RhineWestphalia) were rele-
gated by fi nancial equalization to the bottom of the list that accounted for the
states total tax revenues. On the other hand, Bremen, which placed fi fteenth
100 chapter thr ee
(out of sixteen) in preequalization fi nancial capacity, was catapulted into fi rst
place by fi nancial equalization. Bavaria, Baden-Wrttemberg, and Hesse
brought an abstract judicial review challenge against this fi nancial equalization
regime. The Second Senate held that provisions of the Standards Regime and
the Financial Equalization Regime in the omnibus Financial Equalization Act
of 1993 constituted violations of Articles 106 and 107 of the Basic Law.]

Judgment of the Second Senate. . . .
[The Court began its opinion by identifying the three distinct normative layers
with which it was concerned in its review of the 1993 fi nancial equalization law:
1) the Basic Law, which establishes the general principles governing the statu-
tory appropriation and distribution of revenue; 2) the Standards Regime con-
sisting of long-term allocation and equalization standards that are constantly
updated by the Parliament in the context of continuous planning; and 3) the
Financial Equalization Regime, which sets short-term allocation and equal-
ization targets that are designed to be periodically reviewed. Because the con-
stitutional rules governing public fi nance largely operate as an abstract system
of values, the Court focused its attention on the general Standards Regime and
the more detailed Financial Equalization Regime implemented by the 1993
law.]
C. The Financial Equalization Act does not defi ne the standards stipulated by
Article 106 and Article 107 of the Basic Law for the implementation of the fi nancial
constitution with adequate specificity. . . .
[The Court fi rst examined the Standards Regime.]
I. 1. c. The constitution directs the Parliament to form a long-term Standards Re-
gime that is based on a timetable that excludes or at least limits a purely interest-
orientated understanding of the amounts of money to be affected by fi nancial equal-
ization. Th is contrasts with the Financial Equalization Regime, which applies those
standards in up-to-date form with consideration given to actual fi nancial conditions.
The fi nancial constitution requires, in Article 106 (3) and (4) and Article 107 (2) of
the Basic Law, the enactment of statutory standards that fulfi ll the Parliaments duty
to anticipate the future. Th is is part of the constitutional state principle. . . . In the
present context this means that the criteria for tax allocation and fi nancial equaliza-
tion must be formed before their later effects become known.
The requirement of a Standards Regime (Article 106 (3) [4] {1} of the Basic Law) is
designed to ensure the formation of long-term principles. The Standards Regime, in
its generality, provides for the future in a rational, planned way. It presupposes a cer-
tain durability of the rules it establishes. It extends its application to an indetermi-
nate multitude of future cases. It is detached from the persons affected by the details
of fi nancial equalization. It directs the attention of subsequent parliaments to their
Feder alism 101
obligation to the future even while they are engaged in negotiating respective Financial
Equalization Regimes. In these ways, the Standards Regime recalls but also directs
the Parliaments primary authority to interpret the constitution.
The requisite indeterminacy is achieved if the Parliament enacts the Standards
Regime without regard to the fi nancial interests of the federation and the individual
Lnder, circumstances that come into focus on the basis of annually changing reve-
nue yields and fi nancial expenditures. Th is standard-setting statute must be adopted
well in advance of its actual application and its continuity must be assured so that the
standards it establishes are not influenced by current fi nancial interests, vested rights,
and privileges. Even if a general veil of ignorance [citing John Rawlss A Theory of
Justice (1975)] cannot be drawn over the decisions taken by members of the Parlia-
ment, the fact that the Standards Regime exists before the Parliament begins to con-
sider legislation for a new Financial Equalization Regime should guarantee an insti-
tutional orientation toward the constitution. Again, the aim is to develop standards
without knowing the specific circumstances of their application. . . .
d. The Standards Regime sets the terms by which the system of allocation and
equalization under the fi nancial constitution is clarified and implemented. Regu-
lating the equalization of fi nancial burdens must not be left to the free play of politi-
cal forces. The Basic Law does not subject its carefully coordinated fi nancial consti-
tution to the whims of the interested parties. Rather, it directs the Parliament to
give fi nal shape to the requirements of the fi nancial constitution in further refi ne-
ment of the constitutional principle of federalism. The Parliament is charged with
enacting a Standards Regime so that the fi nancial constitution can be clarified in
up-to-date terms and the consequences of allocation and equalization can be mea-
sured accurately in relation to prevailing circumstances and can be periodically
reviewed. . . .
e. In passing the Standards Regime, the Parliament fulfi lls its obligation to give
concrete form to and supplement the principles of allocation and equalization
that are outlined only generally in the fi nancial constitution. The Bundestag
with the consent of the Bundesratdischarges this responsibility by adopting the
appropriate standards, thus binding itself with these standards of allocation and
equalization. . . . Enactment of the Standards Regime creates abstract criteria for
specific fi nancial consequences allowing Parliament to give account to itself and to
the general public, it ensures the transparency of the distribution of funds in ac-
cordance with the constitutional state principle, and it guarantees the budgetary
predictability and foreseeability of the bases of public-fi nance autonomy for the
federation and each Land.
[Having ruled that the 1993 Standards Regime lacked the necessary distance
from day-to-day politics and the required long-term perspective, the Court ar-
ticulated the maxims that should prevail in the Standards Regime. The Court
addressed each of the four phases of constitutional fi nancial equalization. In
the fi rst stage, the Court explained, the vertical distribution of tax revenue is to
102 chapter thr ee
be determined with a view toward necessary expenditures, fi nancial rational-
ity, and a fair balance that avoids excessive burdens on taxpayers and ensures
equivalent living conditions. In the second stage, the Court explained, the
turnover tax is to be allocated on a per capita basis except when the formula is
adapted to assist Lnder with below-average tax revenues. It is the horizontal,
state-to-state revenue transfers from fi nancially stronger to fi nancially weaker
Lnder, undertaken in the third stage of fiscal allocation, that has proven most
controversial. Addressing these state-to-state revenue transfers, the Courts
rule for the third stage of fi nancial equalization called into question the hori-
zontal, state-to-state transfer provisions of the 1993 Financial Equalization Act
that had produced the dramatic reversal of fiscal fortunes of several of the
Lnder.]
c. . . . Pursuant to the concept of the mutually supportive federal community,
Article 107 (2) [1] and [2] of the Basic Law stipulates . . . fi nancial equalization that is
supposed to reduce but not remove . . . the differences in fiscal capacity among the
Lnder. The Financial Equalization Regime must strike a balance between the auton-
omy, independent responsibility, and preservation of the individuality of the Lnder,
on the one hand, and the shared responsibility, based on a mutually supportive federal
community, for the subsistence and independence of the other members of the federa-
tion [Bundesgenossen], on the other. . . . It is not a system for replacing the result of
the primary distribution of tax . . . with a new system, which is, for example, character-
ized solely by the concept of the fi nancial equality of the Lnder, but which no longer
takes their autonomous statehood and independent responsibility into consideration.
The equalization mandate imposed by Article 107 (2) of the Basic Law, therefore, does
not require the creation of actual fi nancial equality for the Lnder. . . .
The balance between the autonomous statehood of the Lnder and the mutually
supportive federal community, in par ticu lar, would not be achieved if the standards
of horizontal, state-to-state fi nancial equalization decisively were to weaken the
ability of the contributing [fi nancially stronger] Lnder to meet their obligations or
lead to a leveling out of the fi nances of the Lnder. . . . Moreover, the requirement to
equalize the disparate fi nancial capacities of the Lnder only to a reasonable extent
and without establishing parity prohibits any reversal of the order of fi nancial capaci-
ties among the Lnder in the context of the horizontal fi nancial equalization. . . .
Financial equalization should approximate without imposing actual equality. Th is
means that horizontal fi nancial equalization may reduce but not cancel out or reverse
the disparities among all sixteen Lnderboth those obliged to contribute to as well
as those entitled to benefit from equalization. Solidarity among the states of a federa-
tion reduces differences; it does not eliminate them.
[The Court then addressed the fourth and fi nal stage of constitutionally im-
posed fi nancial equalization. The Court explained that the federations supple-
mentary grants to fi nancially weaker Lnder, awarded pursuant to Article 107
(2) [3] of the Basic Law, may not merely continue the horizontal fi nancial equal-
Feder alism 103
ization with federal funds. The federal supplementary grants, the Court said,
are available to Lnder that experience persistent, below average fi nancial ca-
pacity or have special burdens.
Having outlined the more abstract guidelines required of the Standards Re-
gime, the Court applied these standards to the detailed Financial Equalization
Regime of 1993. The Court found a number of provisions to be incompatible
with these standards, particularly the provisions concerning the third stage of
horizontal, state-to-state revenue redistribution. The Court found that these
provisions did too much to equalize the fi nancial capacity of the Lnder. The
Court identified a cap on fi nancial redistribution, which it concluded would
promote solidarity while preserving state autonomy.]
II. 2. d. aa. If the . . . Financial Equalization Act restores the fi nancial capacities of
the fi nancially weak Lnder in two stages to 95 percent of the average fi nancial capac-
ity of the Lnder, it establishes for the horizontal fi nancial equalization a reasonable
balance between Land autonomy and the mutually supportive federal community. It
approximates fi nancial capacities without leveling them out, it maintains the order of
fi nancial capacity and, in principle, it avoids excessive burdens for the fi nancially
stronger Lnder.

Repercussions of Finance Equalization III. The Second Senates decision required
the revision of the Financial Equalization Act before 1 January 2005. Until that
date, the constitutionally flawed 1993 law could remain in force, but only so long as
a new Standards Regime, defi ning in more detail the standards by which the fi nan-
cial constitutions vertical and horizontal equalization scheme would be imple-
mented, had been enacted before 1 January 2003. The new Standards Regime was
enacted in September 2001 and was followed by the required comprehensive over-
haul of the omnibus Financial Equalization Act in December 2001. In two novel
ways the new scheme created incentives for the states to collect their own tax rev-
enues. First, it lowered the rate at which the rich states above-average tax revenues
are subject to direct state-to-state transfer (from 80 percent to 72.5 percent). Sec-
ond, it exempted 12.5 percent of tax revenue increases over the previous year from
the calculation of states fi scal capacity, thereby reducing rich states exposure to
federally mandated transfers by that amount. These reforms represent timid but
certain movement toward a much-debated model of competitive federalism that
would make states fi scal well-being dependent on state economic and social pol-
icy. Th is, of course, represents a challenge to Germanys commitment to equivalent
living conditions.
The important role played by reunification in the debate that led to Finance Equal-
ization III also merits comment, especially because the broad reform of the omnibus
Financial Equalization Act in 2001 was coupled with the extension of the 1993 Soli-
darity Pact. The long-standing tension between fi nancially stronger and fi nancially
104 chapter thr ee
weaker Lnder was exacerbated in the 1990s by the integration of the new, very poor
Lnder that had constituted the former East Germany. From 1996, the new Lnder
participated in most components of the fi nancial equalization system and benefited
significantly as the recipients of revenue transfers. But pursuant to the Solidarity Pact,
the formerly socialist region also was the recipient of a massive infusion of federal
funds aimed specifically at invigorating the economy, renovating the infrastructure,
and paying for social ser vices such as old age benefits. Again, the goal of these reve-
nue transfers was to establish equivalent living conditions across the whole of the
reunified Federal Republic. Some contended that these resources should be counted
in the calculation of the new states fiscal capacity for the purpose of revenue distri-
bution pursuant to the fi nancial equalization regime. In Finance Equalization III, the
Constitutional Court unequivocally rejected this argument, concluding that federal
supplementary grants should be aimed at addressing the special needs of the Lnder,
especially the unique needs of the new Lnder.
The regrettable but dawning reality that the renewal and economic integration of
the new Lnder would require a multigenerational effort led to the extension of
the Solidarity Pact through the year 2019. The 2006 federalism reform added a new
Article 143c to the Basic Law that ensures the viability of this Solidarity Pact. Show-
ing further support for the fiscal facets of reunification, in 2010 a chamber of the First
Senate refused to admit for review a concrete judicial review application that called
into question the constitutionality of the so-called Solidarity Supplemental Tax or
Soli (Solidarittszuschlag). It is this supplement to the income tax that, in part,
funds the Solidarity Pact. In refusing to admit the constitutional reference from the
Finance Court of Lower Saxony, the three-justice chamber of the Constitutional
Court concluded that the Soli was properly still levied as a supplemental tax despite
the fact that it had been two decades since unification. An earlier ruling on the con-
stitutionality of a supplemental tax, the chamber explained, had clearly established
that these taxes can be regularly renewed.52

local self- government

Local government is a prominent feature of Germanys constitutional structure. The


German states, Arthur Gunlicks has written, are responsible for executing as mat-
ters of their own concern most national laws, a large majority of which in turn are
given to the local governments that also serve as field agencies. Local governments
also execute most Land laws in addition to the ordinances and regulations passed by
the local councils in their roles as instruments of local self-government. Thus, the
local level is the primary focus for the administration of the laws and regulations of
all levels in Germany.53 Th is complex, multitier system of administration is some-
times referred to as administrative federalism, pursuant to which the federation
carries the greatest responsibility for legislation, but the Lnder are generally respon-
sible for [its] administration. . . .54 Administrative federalism will be discussed in
Feder alism 105
greater detail below, but it should be noted here that the federation had increasingly
sought to prevail upon both Land and municipal autonomy in the administration
ofthe law, largely through legislated mandates. The 2006 federalism reform barely
touched matters of local self-government but, significantly, it eliminated federal
mandates. Gunlicks notes [n]ew provisions . . . were added to Articles 84 and 85 that
state clearly that federal laws may not transfer tasks to local governments, which
means that future transfers of tasks will have to come from the Lnder that retain
constitutional responsibility for their localities.55
Local government has a long history in Germany. Baron von Stein laid its founda-
tion in the Prussian City Charter Act of 1809, and it came to full realization in the
free Hanseatic cities later in the century.56 The autonomy of local government in
most parts of Germany, however, was severely limited under the Bismarck Reich and,
after a short renaissance under Hugo Preusss Weimar Constitution, it was altogether
crushed during the Nazi era. After World War II, in accordance with their policy of
decentralization, the Allied powers rebuilt the German political structure from
the bottom up, restoring local governmental responsibility before authorizing the
reemergence of the Lnder.
Later, when the Lnder were reestablished, each Land constitution contained
provisions guaranteeing local self-government, reflecting not only the policy of the
occupying powers but also the precedents set by similar provisions in the Frankfurt
Constitution of 1849 (Article 184), the Prussian Constitution of 1850 (Article 105),
and the Weimar Constitution of 1919 (Article 127). Article 28 of the Basic Law con-
tinues this tradition by declaring: Municipalities must be guaranteed the right to
regulate all local aff airs on their own responsibility, within the limits prescribed by
the laws. What constitutes a local affair is a matter that occasionally works its
way to the Federal Constitutional Court. For example, in 1985 the Second Senate
declared that municipal fi nancial autonomy is guaranteed by the Basic Law.57 As
noted earlier, the Basic Law ensures that municipalities participate in the distribu-
tion of tax revenues.58
More fundamentally, in the Hoheneggelsen Case that follows the Court considered
the core function doctrine for discerning a municipalitys constitutionally protec-
ted sphere of authority. Article 93 (1) [4b] of the Basic Law authorizes local govern-
ments to lodge constitutional complaints against laws impinging on their right to
self-government. Th is, however, is an institutional guarantee of local self-government.
The Constitutional Court has thus declined to hear the complaints of individual
municipalities whose existence is threatened by otherwise valid boundary changes
or annexations.59 As Gunlicks notes, [t]he institutional guarantee enjoyed by local
governments protects the essential content (Wesensgehalt) of local self-government.
The concept of essential content refers to activities that cannot be removed without
changing the status and structure of the institution.60
106 chapter thr ee

3.4 Hoheneggelsen Case (1982)


59 BVerfGE 216
[In 1974 the spd-controlled legislature of Lower Saxony passed a law consoli-
dating several communities into one united municipality. The communities in
which two-thirds of the population lived wanted to call the new municipality
Shlde, while the others preferred Hoheneggelsen. The Land parliament
designated the new municipality Shlde, in keeping with the practice of nam-
ing a new entity after the largest city in the group of consolidated municipali-
ties. After the cdu defeated the spd in Lower Saxonys 1976 election, the Land
parliament passed a new law renaming Shlde Hoheneggelsen. The legisla-
tors explained that the choice of Shlde had not reflected prevailing local
conditions. By renaming the municipality, they wished to correct the prior
mistake as well as to encourage investment in the more centrally located Ho-
heneggelsen. The city of Shlde fi led a constitutional complaint on the ground
that the new statute interfered with its right of local self-government in viola-
tion of Article 28 (2). The Court agreed with Shlde.]

Judgment of the Second Senate. . . .
A. The constitutional complaint concerns the issue of whether and under what con-
ditions a Land legislature may once again change the name of a municipality after [it
has passed a law] to newly form and name the municipality only a few years earlier as
part of comprehensive territorial reorganization of local government.
B. . . . II. The constitutional complaint is justified. The challenged provision vio-
lates the complainants right of self-government (Article 28).
1. Article 28 (2) [1] guarantees local units of government jurisdiction over virtually all
matters concerning the local community as well as the authority to transact business
autonomously in this area. Land parliaments may impose legal restrictions on local self-
government if and insofar as these restrictions leave the core functions of this right in-
tact. In determining what constitutes these core functions, one may take historicaldevel-
opments as well as various historical manifestations of self-government into account.
[The Court went on to say that part of the historical tradition of local govern-
ment sovereignty is the right to use the name it has chosen. The localitys name
conveys its legal identity and manifests its individuality. Th is right conse-
quently falls within the essence of Article 28 (2) [1]. Nevertheless, communities
have not been immune to state-imposed name changes. Accordingly, most mu-
nicipal codes provide that either the Land parliament or the minister of the in-
terior can change a municipalitys name under certain conditions. The histori-
cal fi ndings indicate that this right was one of those consigned to the sovereignty
of the state. To this extent Article 28 (2) [1] contains an institutional but not an
individual guarantee of municipal sovereign rights.]
Feder alism 107
3. Yet, part of the constitutionally protected essence of municipal autonomy, as it
has developed historically, is that such name changes will be made only after the mu-
nicipality has been granted a hearing. This applies not only to name changes necessary
within the context of reorganization procedures but also to all other cases where a
municipality is to be renamed against its will. Even 10 (2) of the German Municipal
Code provided for an obligatory, prior hearing. The municipal codes of all Lnder
now contain this obligation, insofar as they do not already make a name change de-
pendent upon an express petition of the municipality in question.
A municipalitys right to use its properly determined name as a manifestation of
its individuality and as part of the historical tradition of local sovereignty is not
the only consideration that justifies its right to a prior hearing. The constitutional
state principle, which holds that a municipality may not be made into the object of
state action during a name change, also demands this result.
The complainant received a proper hearing during the legislative proceedings. The
bill of 19 June 1980 contained the following explanation of complainants redesigna-
tion: The original naming was an erroneous decision because the district of Hoheneg-
gelsen is geographically the more central district of complainant; the drafters of the
bill expected that the complainant would consider its central location and meaning
differently in the future than it has in the past when making investments, if the mu-
nicipalitys continued unchanged existence is to be assured. With this list, the drafters
briefly but completely set forth the fundamental reasons for the redesignation.
[The Court explained that the Land parliament may infringe on the guarantee
of Article 28 (2) [1] only in the public interest and that this guideline stems from
the constitutional state principle. Although the redesignation of a municipality
requires that its effect on the common good be considered, ultimately the parlia-
ment determines whether a given norm is in the public interest. Consequently,
the Court gives lawmakers great leeway in this evaluative judgment.]
When regulating for the fi rst time an area that consolidates several local commu-
nities, the Land parliament cannot, as a rule, maintain the former names of the com-
munities being consolidated but must fi nd a common name. For this reason the leg-
islature has relatively broad discretion when restructuring an areaespecially if the
communities in question disagree about the name of the newly consolidated munici-
pality. But once the consolidation has taken place and a new municipality with its
own name has been formed, the guarantee of local self-government resumes its full
weight. The Land parliament must cite overriding considerations of the public good
that plausibly explain a redesignation against the municipalitys will. These are lack-
ing in the instant case.
When the Land parliament restructured the complainant in 1974, it chose the name
of the largest community participating in the consolidation in view of the existing
dispute between the former communities over the name that the new municipality
would use, just as it had in other comparable cases. The fundamental reason for the
name change by the corrective law of February 1981 was the parliaments aim of taking
108 chapter thr ee
the central location and meaning of the district of Hoheneggelsen into account.
Further, it wanted to change prospectively the complainants past investment behav-
ior, which it considered wrong. Th is aim cannot justify the violation of the complain-
ants right to use its name. Moreover, it deviates from the generally applicable aims
and procedures for state regional planning in Lower Saxony, according to which the
municipality itself may determine the location of the center of its administrative area.
No apparent reason justifies why the complainant alone should be deprived of its
acknowledged right to determine its own internal development and be compelled,
under threat of legal sanctions, to move its administrative center to Hoheneggelsen
because of its prior investments. And this, despite the fact that the Land Lower Saxony
had approved and encouraged the municipalitys investments only a few years earlier
by incorporating the locality of Shlde into the regional planning program.
Further, the corrective laws professed aim is based on a misunderstanding of the
meaning and scope of the right to local self-government. Th is right vests local gov-
ernment with authority over developmental planning and the resulting investment
decisions of individual communities to the extent that regional interests meriting
protection do not make restrictions necessary. Special statutory treatment that is
burdensome only to a few municipalities is inconsistent with this right; this includes
treatment that aims to teach local representatives to behave the way the majority in
the Land parliament wants it to in matters of local self-government, or treatment
aimed particularly at teaching local representatives to heed certain local special in-
terests when deciding upon plans and investments. The legislature also cannot jus-
tify this treatment by combining these reasons with the speculative hope of reducing
tensions and facilitating integration.
We need not reach the issue of whether the states redesignation of the complain-
ant would have been an appropriate and reasonable means for attaining the goal
pursued by the legislature, since the parliament cites no constitutionally recognized
grounds for the name change that advance a public interest.

The Core Functions of Local Government. When the Court speaks of the essence
of communal autonomy it is referring to certain core functions (Kernbereich) of
local government that must be protected against federal or state encroachment. Not
all local affairs, however, are core functions. The transfer of certain powers to the
federation, the expansion of cooperative federalism, and the consequent reduction in
the number of policy areas deemed exclusively municipal complicate efforts to dis-
tinguish between local and nonlocal affairs. At the same time, the Courts historical
approach to determining the essence of local government could also be used to pro-
tect newly acquired local functions.61 German commentators are unable to agree on
a complete list of functions protected by the Kernbereich theorysome reject the
theory of core functions altogetherbut they, like the Court, do include local rule
making, internal governmental organization, and certain aspects of land-use planning
as well as personnel and fi nance administration.
Feder alism 109
The Kernbereich theory echoes the federalism controversy in the United States
triggered by National League of Cities v. Usery (1976).62 Usery held that the commerce
clause did not permit Congress to impair the states ability to function effectively
in a federal system or to displace their integral governmental functions. In 1985,
however, the Supreme Court overruled Usery, claiming, contrary to the approach of
the Federal Constitutional Court, that any reliance on history as an orga nizing
principle [for determining the core functions of state governmentsthus render-
ing them immune to federal regulation] results in line-drawing of the most arbi-
trary sort. 63 But as Gunlicks noted, it is much easier for the German Court to take
a position in favor of local governments, since Article 28 (2) of the Basic Law grants
local governments explicit protection, while there is sharp disagreement whether
the Tenth Amendment is relevant to protecting American local governments from
federal incursions. 64

Waste Disposal Case. The Federal Waste Disposal Act of 1972 laid down regulations
for the collection, treatment, storage, and disposal of waste. Lower Saxony, in imple-
menting the statute, placed the responsibility for waste disposal in the hands of county
(Kreis) authorities, in effect taking this function away from lower levels of government.
Rastrede, a municipality of seventeen thousand inhabitants with its own garbage
pickup and disposal system, fi led a constitutional complaint under Article 93 (1) [4b] of
the Basic Law, alleging a violation of its constitutional right to self-government. The
Courts decision reaffirmed the principle of local self-government, holding, as it had
inHoheneggelsen, that the essential content of communal self-government cannot be
undermined.65
In Waste Disposal (1988) the Court affi rmed these principles concluding that the
essence of communal self-government cannot be compiled into an objectively deter-
minable cata log of functions based on fi xed features but is merely the communal
power to assume control over all affairs of a local nature that are not subsumed under
powers assigned to other levels of government.66 But the Court held that, pursuant
to federal law, a Land government could legitimately assign the task of waste disposal
to public corporations other than municipalities. Also, in the light of developing
technologies and the administrative efficiency associated with more centralized au-
thority, waste disposal could no longer be regarded as exclusively an affair of the local
community.
Waste Disposal was a cautious judgment. Economic considerations alone, said the
Court, may not be allowed to defeat the principle of local self-government; in weigh-
ing economic efficiency against the value of local control, a heavy thumb must be
placed on the side of the latter to ensure that the principle of self-government is given
its proper place in the Basic Laws overall governmental scheme. Waste Disposal, like
other decisions considered in this chapter, reveals the active role the Constitutional
Court plays as a balance fulcrum when adjudicating confl icts between competing
levels of government.
110 chapter thr ee

bundesrat, reform gridlock,


and modern federalism

The Bundesrat is the mainstay of German federalism. It was designed to safeguard


the interests of the Lnder.67 To accommodate the interests of the new eastern Ln-
der, the Unity Treaty amended Article 51 of the Basic Law, changing the allocation of
votes in the Bundesrat. As before, each Land is entitled to at least three voting mem-
bers, but now Lnder with more than two million people are entitled to four votes,
those with more than six million receive five votes, and those with more than seven
million receive six votes. (In the past, the largest states had five votes.) Unlike each
American states two U.S. senators, however, these delegations to the Bundesrat
represent the Lnder in their corporate capacities and not the people directly. Th is
means that each states delegation is drawn from the respective Land government,
and the membership of a states delegation typically changes as a result of a change
in the cabinet due to Land elections. 68 The Bundesrat is a truly federalist institution,
but only so long as the scheme for casting the votes of each states delegation to the
Bundesrat preserves the priority of Land over party.

Voting in the Bundesrat. A Bundesrat delegation represents the interests of the Land
government in federal lawmaking and administration. To underscore this fact and its
federalist implications, and to protect against the creeping influence of party politics
in the Bundesrat, Article 51 (3) of the Basic Law ordains that [t]he votes of each Land
may be cast only as a unit. . . . Thus, a Land government speaks with one voice in the
Bundesrat, without respect to the partisan makeup of that government. Th is can lead
to difficulties, considering that, as is the case on the federal level, Land governments
are typically formed by party coalitions, sometimes including less-than-harmonious
unions. Arthur Gunlicks described such situations in these terms: In case the Land
has a coalition government and parties in the government do not agree on how to
vote, the Bundesrat members from that Land will most likely abstain; this has the ef-
fect of a negative vote, since only positive votes are counted. All coalition govern-
ments sign detailed agreements before they form a government, and these include
provisions concerning voting procedures in the Bundesrat. 69 The heated debate over
immigration reform legislation proposed by the spd/Green federal government in
2002 led to a breakdown in Brandenburgs unified voting in the Bundesrat. The inci-
dent provided the Constitutional Court with an opportunity to rule on the constitu-
tionality of voting schemes in the Bundesrat.70

3.5 Immigration Act Case (2002)


106 BVerfGE 310
[In the spring of 2002 the Bundestag passed a controversial immigration bill
that was proposed and supported by the spd/Green coalition government led
Feder alism 111
by Federal Chancellor Gerhard Schrder. Recent Land elections, however, had
given the cdu/csu a majority of votes in the Bundesrat, which would have to
consent before the law could enter into force. To obtain the Bundesrats consent,
Schrders government had to count on Brandenburg to cast its block of four
votes in favor of the bill. But Brandenburgs government at the time consisted of
a coalition between the state branch of Schrders spd and the state branch of
his federal opposition, the cdu. When Brandenburgs minister-presidenta
Social Democrat aligned with Schrderwas called upon to deliver the Lands
votes in the Bundesrat, he cast all four in favor of the bill, thereby ensuring the
Bundesrats consent even though a cdu member of Brandenburgs delegation
loudly cast his vote individually as no. The chambers acceptance of Branden-
burgs block of votes as a yesdespite this voiced objectionelicited cries of
foul play from the conservative parties. Federal President Johannes Rau, after
considering the protests, signed the law. Six of the Lnder that abstained or
voted against the bill turned to the Federal Constitutional Court in an abstract
review proceeding, arguing that the events surrounding Brandenburgs Immi-
gration Act vote in the Bundesrat did not satisfy the Basic Laws consent re-
quirement under Article 78. The Second Senate upheld the challenge over the
vigorous dissents of Justices Osterloh and Lebbe-Wolff.]

Judgment of the Second Senate. . . .
C. The application seeking review of the constitutionality of the statute is well-
founded. The Act to Control and Restrict Immigration and to Regulate the Resi-
dence and Integration of eu Citizens and Foreigners of 20 June 2002 [Immigration
Act] is incompatible with Article 78 of the Basic Law and, hence, void. Because it
contains provisions concerning the administrative procedure to be carried out by
the authorities of the Lnder, the whole of the Immigration Act requires the consent
of the Bundesrat in accordance with Article 84 (1) of the Basic Law. There was no
majority of Bundesrat votes, which is required by Article 52 (3) [1] of the Basic Law
for such consent. The president of the Bundesrat was not permitted to count Bran-
denburgs block of votes in favor of the Immigration Act. The president of the Bundes-
rat declared that the body had given its consent to the Immigration Act after the
other Lnder had been called on to cast their votes. But his determination had no
legal effect because Brandenburg did not consent to the Immigration Act.
I. The Land Brandenburg did not assent to the Immigration Act because, when the
Land was called on, the votes were not cast uniformly. The variation in the votes cast
by Brandenburg was not cured by the further course of the balloting process.
1. a. The Bundesrat is a collegial constitutional body of the federation that consists
of delegations sent by the Land governments. It is not formed by the Lnder. Article
50 of the Basic Law describes the function of this federal constitutional body in sim-
ple terms: The Lnder shall participate through the Bundesrat in the legislation and
112 chapter thr ee
administration of the federation and in matters related to the European Union. Th is
participation takes place, not directly, but through the agency of the delegates to the
Bundesrat who are dispatched by the Land governments. The Lnder are in each case
represented by their Bundesrat delegates.
The votes of a Land are cast by its Bundesrat delegates. The person from among
these representatives who will cast the votes of a Land is, as a rule, determined by
the delegates themselves or by the respective Land government in the run-up to a
Bundesrat session. The Basic Law expects that each states votes will be cast uni-
formly and respects the practice of the block vote [pursuant to which all of a Lands
votes are cast by one member of its delegation], the holders of which are designated
by each Land autonomously, without, in turn, interfering in the constitutional sphere
of the Land with instructions and determinations.
It follows from the Basic Laws conception of the Bundesrat that a member of a
Lands delegation to the Bundesrat can, at any time, contradict the votes cast by the
holder of the Lands block vote. In these circumstances the preconditions for accept-
ing the block vote cease to apply. The president of the Bundesrat, therefore, accepts the
vote of an individual Bundesrat delegate as having cast the votes for all the delegates of
a respective Land unless another delegate from that Land casts a confl icting vote.
b. The votes of a Land are to be cast uniformly in accordance with Article 51 (3) [2]
of the Basic Law. The act of casting a Lands votes occurs with the voluntary an-
nouncement of the votes of a Land. Where several votes are cast by a Lands Bundes-
rat delegates, they must concur.
Here, the Land Brandenburg, when called on in the voting procedure, did not cast
its four votes uniformly. . . . In the present case, Bundesrat Delegate Ziel initially an-
swered yes for Brandenburg, followed immediately by Bundesrat Delegate Schn-
bohms contradictory response no. The Brandenburg Minister-President Dr. Stolpe,
and Minister Prof. Dr. SchelterBundesrat delegates also presentdid not respond
when the Land was called on. From the unambiguous declarations of Bundesrat Del-
egates Ziel and Schnbohm, it followed that the Bundesrat delegation from the Land
Brandenburg had not cast uniform votes within the meaning of Article 51 (3) [2] of
the Basic Law. The president of the Bundesrat correctly determined this as a formal
matter at the time the confl icting votes were declared.
2. During the ensuing course of the ballot the inconsistent votes cast by Branden-
burgs delegation were not cured and then converted into a uniform vote of approval.
The course of the ballot that followed is not legally relevant because it constituted a
departure from the constitutionally required form of the voting procedure. In a vot-
ing procedure that is part of the legislative process, conduct that is contrary to the
required form cannot change the legal impact of the preceding conduct, which it-
self did not correspond to the formal requirements. The president of the Bundesrat,
as chairman, had no right to inquire of Minister-President Dr. Stolpe of the intent of
the Land Brandenburg regarding its votes. Even if one were to presume such a right,
the inquiry should have been addressed not only to the Minister-President, but also
to Minister Schnbohm [the delegate who had cast the contradictory no vote].
Feder alism 113
aa. Where ambiguities occur in the course of the ballot, the president of the
Bundesrat is entitled to bring about a clarification with suitable measures and to
work toward an effective vote by the Land. Th is corresponds to the Bundesrat presi-
dents duty as an unbiased session chair, on whom it is incumbent to clearly deter-
mine the will of the Bundesrat in the legislative procedure. Article 78 of the Basic
Law, in conjunction with the principle announced in the Basic Law that Germany
will be a constitutional state, requires that the will of the participating constitutional
bodies be determined in a way that it is attributable to them; this applies to the
formal promulgation of legislation by the Bundestag, as well as to the consent of the
Bundesrat. When ambiguity might require additional inquiries is a matter that can
be examined by the Constitutional Court; nevertheless, the president of the Bundes-
rat has a prerogative for assessing and correcting any ambiguities. The right to in-
quire, however, ceases to apply if the uniform will of a Land clearly does not exist
and, in view of the overall circumstances, cannot be expected to come into being
during the course of the balloting.
The intention of the Land Brandenburg to split its vote was evident. Bundesrat
Delegate Schnbohm had presented his political position in unmistakable form in
the plenary debate immediately before the ballot. He would not agree to the Act, he
said, and he would voice his objection loudly and clearly in full knowledge of the
ramifications under Article 51 (3) of the Basic Law. Bundesrat Delegate Schnbohm
also had clearly outlined the goal of his conduct. He wished, with his no vote, to
prevent Brandenburg from casting a uniform block of its Bundesrat votes. It was also
generally known that the Brandenburg Land government did not have a rule for cast-
ing the Lands votes. Some of the contributions to the plenary debate, as well as the
careful legal preparation by the parties involved, demonstrate that a uniform politi-
cal decision had not been reached by Brandenburgs delegation prior to the Bundes-
rat session, nor was it expected to be achieved in the course of the session. Instead,
the delegations disagreement was clear. The lack of uniformity was then formally
recorded, as expected, when the Land Brandenburg was called upon to cast its votes.
[Dissenting Justices Osterloh and Lbbe-Wolff did not dispute that the Lnder
themselves do not hold the seats in the Bundesrat, but agreed with the majority
that the Lnder are represented in the Bundesrat by the individual delegates.
The dissenters also agreed with the majoritys conclusion that each individual
member of a delegation enjoyed the right to vote, but that the Basic Law would
allow that right to be exercised through a leading member of the delegation
pursuant to the block vote procedure. Justices Osterloh and Lbbe-Wolff de-
parted from the majority, however, in their conclusion that Brandenburgs split
vote should not be viewed as an invalid (and thus, in the view of the majority,
ineffective) vote, but rather, as failing to constitute an act of voting altogether.
Th is, the dissenters argued, necessitated the presiding officers efforts to obtain
a vote from Brandenburgs delegation. The dissenters then argued that, even if
Brandenburgs split vote were to be characterized as invalid, the Land still had
114 chapter thr ee
the right to correct its voting afterwards. The dissenters also concluded that
the Bundesrat presidents method for facilitating the correction and clarifica-
tion of Brandenburgs vote should not be regarded, in the majoritys unneces-
sarily formalistic terms, as an evident irregularity in the Bundesrats voting
proceedure.]

Power of the Bundesrat and Gridlock. The Basic Law does not place the Bundesrat
on an equal footing with the Bundestag. The Bundestag is Germanys popularly
elected parliamentary body. By contrast, the Bundesrat, while not legally a parlia-
mentary body, enjoys the right to participate in the national legislative process. The
Bundesrat wields a suspensive veto over legislation generally and an absolute veto
over all legislation affecting the vital interests of the Lnder. A suspensive veto can be
overridden by an equivalent vote in the Bundestag. Still, if the legislation affects the
interests of the Lnder, the Bundesrats consent is required. Actions constitutionally
requiring the Bundesrats consent include proposed constitutional amendments, all
laws affecting state tax revenues, and all laws and directives impinging on the adminis-
tration of federal law by the Lnder. An expansive interpretation of Lnder competence
under the last category would have the de facto result of expanding the Bundesrats
legislative prerogatives.
The practical effect of an expansion of the Bundesrats consent power is a serious
matter because it can create frictioneven deadlockbetween the two legislative
chambers. The attempted immigration reform of 2002 demonstrates the critical im-
portance of the Bundesrats expanded power. If different political parties are ascen-
dant in the two chambers, then the majority in the Bundesrat, capitalizing on the
latters expanded consent authority, can all too easily block the parliamentary major-
itys legislative agenda in the Bundestag. It is no longer rare for the two houses to split
along partisan lines. In the early 1960s, for example, a conservative Bundestag (and
federal government) squared off against a Social Democratic Bundesrat. In the early
2000s, the situation was reversed. By 2011 the roles had switched again, with Chancel-
lor Merkels conservative-liberal government and parliament confronted with a Social
Democratic majority in the Bundesrat.
The problem of parliamentary policy being blocked by the Bundesrat fi rst oc-
curred in the mid-1970s. The Bundesrat, dominated by Christian Democrats, wielded
its authority against the Social Democratic majority in the Bundestag in a manner
that virtually asserted the Bundesrats equality with the Bundestag in the national
legislative process. The theory of co-responsibility, as several state governments called
it, was a central issue in the Bundesrat Case. Blocking the will of the parliamentary
majority in this manner, essentially using an almost purely federalist institution to
pursue partisan ends, has brought the Bundesrats authority under fi re and played a
large part in fueling persistent calls for federalism reform.
The Abortion I (1975; no. 7.4) and Conscientious Objector II (1978) cases featured
interbranch disputes highlighting the differing perspectives of the two houses.71
Feder alism 115
When the Bundesrat objected to an abortion bill passed by the Bundestag, the latter
in turn voted to override the objection, holding that the Bundesrats consent was un-
necessary. The dispute resolved itself into a disagreement over the nature of the
statute. Was it a substantive change in public policy, for which the Bundesrats con-
sent would not be required, or was it a matter of administrative federalism, that is,
affecting the administration of federal law, in which case the Bundesrats consent
would be required? The Bundesrat argued that its consent was necessary because the
substantive legal change vitally affected the meaning and scope of the states admin-
istrative procedures. The Court rejected this claim on the authority of the rule set
forth in the Bundesrat Case, holding that the Lnder enjoy even wider latitude than
previously assumed to structure the administration of the statute and thus need not
participate in the promulgation of the relevant legislation.
The outcome of Conscientious Objector II, however, favored the Bundesrat. In 1977
the Bundestag modified the procedure for determining whether prospective draftees
are entitled to conscientious objector status. Instead of appearing before a board to
establish the sincerity of their claima process administered in different ways in the
various Lnderapplicants now automatically could receive the exemption simply
by notifying the board in writing that they were conscientiously opposed to military
ser vice. The statute did not receive, nor did the Bundestag seek, the consent of the
Bundesrat. Pursuant to Article 87b (2), the conscription statute had authorized the
Lnder to implement the legislation on behalf of the federation.72 The Court held
that since the statute expanded the administrative responsibility of the Lndera
responsibility transferred to the states with the Bundesrats consentthe Bundes-
rats consent was once again required. The newly liberalized rule on conscientious
objection fundamentally transformed civilian alternative ser vice into a second
form of community ser vice,73 thus imposing on the Lnder a much greater respon-
sibility for fi nding community ser vice jobs for conscientious objectors. Such a large
shift of responsibility, said the Court, is permissible only with the consent of the
Bundesrat.
The upshot of these and related cases was that any law containing provisions ex-
tending or prolonging the administrative procedures of Land agencies came to re-
quire the consent of the Bundesrat even though the law as originally enacted had al-
ready received its required consent.74 Even if a subject matter is clearly within the
federations exclusive legislative authority, and even if the law in question is silent with
respect to local administrative procedures, the Bundesrats consent nevertheless may
be necessary if the law substantially affects those procedures or effectively requires
the Lnder to change them in order to effectively administer the federal law.75

3.6 Bundesrat Case (1975)


37 BVerfGE 363
[The question in this case was whether a later amendment of a law that origi-
nally required the consent of the Bundesrat also is subject to an absolute veto
116 chapter thr ee
by the Bundesrat, even if the amendment itself does not affect a matter requir-
ing the Bundesrats consent. In 1972 the Bundestag passed the Pension Reform
Act. Because the act regulated the procedures of Land administration, it re-
quired and received the Bundesrats approval. The Bundestag amended the act
one year later, but the amendment did not change its essential content. Thus the
Bundestag maintained that the amendment did not require the Bundesrats
consent. Rhineland-Palatinate and Bavaria invoked the Constitutional Courts
abstract judicial review jurisdiction and petitioned the Court to vindicate the
Bundesrats veto right, thereby assuring the Bundesrat a position of co-
responsibility with the Bundestag in Germanys legislative system. The Court,
over a dissenting opinion from Justices von Schlabrendorff, Geiger, and Rinck,
rejected this interpretation of the Basic Law.]

Judgment of the Second Senate. . . .
C. II. 1. . . . [The fact] that the Pension Reform Act required the consent of the
Bundesrat . . . does not establish that the . . . amending act also requires such consent.
Not every statute amending a law that originally required the Bundesrats consent is
subject, for this reason alone, to the consent requirement. The Basic Law contains no
provisions from which to deduce such a principle. . . .
a. The distribution of authority between the federation and the Lnder, as pro-
vided by the Basic Law, demands protective measures against the danger that ordi-
nary legislation may produce distortions of the system that are not within the pur-
view of the Basic Law. The provisions in the Basic Law requiring consent of the
Bundesratincluding Article 84 (1)serve this purpose in the interest of the Lnder.
Consequently, this article requires that a law containing provisions that regulate
Land administrative processes receive the consent of the Bundesratas the federal
body through which the Lnder participate in promulgating federal law. By approv-
ing the Pension Reform Act in its entirety, the Bundesrat gave its approval to those
parts of the act regulating the states administrative procedure. With its consent to
the original Reform Bill the Bundesrat approved this penetration into the sphere of
the administration of federal laws that Article 83 guarantees to the Lnder. If, in a
later amending act, no new penetration into the sphere reserved to the Lnder oc-
curs and no renewed distortion of the system results, then the amending act does not
require the consent of the Bundesrat. . . .
b. . . . The Bundestag adopts federal law pursuant to Article 77 (1). The Bundesrat
merely participates in the legislative process (Article 50). . . . In this connection it is
important to realize that the requirement of consent to a statute under the Basic Law
represents an exception to the rule. Only in certain explicitly enumerated cases in
which the states field of interest will be affected in a particularly intensive way does
the Basic Law require consent. . . . The Bundesrat has no general right of control that
can be derived from this principle. . . .
Feder alism 117
c. It is true that the Bundesrat examines the entire content of every law requiring
its consent, not only those provisions that bring the consent requirement into play.
The Bundesrat, therefore, may refuse its consent to a law containing substantive
norms as well as provisions respecting states administrative procedure because it
disagrees with the substantive provisions. . . .
d. But it does not follow from the fact that the Bundesrats consent applies to the
entire statute that every subsequent amendment of that law also requires the Bundes-
rats consent. Rather, the view that a law requiring consent is a legislative unit speaks
against a consent requirement for amending statutes. . . .
The amending statute is also a technical legislative unit. The Court must indepen-
dently and continually examine all prerequisites for its legislative adoption just as in the
case of any other law. It must determine whether the Parliament had the authority to
enact a law of this content and whether the law requires the Bundesrats consent by vir-
tue of its content. If the law does not itself contain provisions requiring consent, and if it
also amends no such provisions, then it does not require the Bundesrats consent. . . .
e. A further consideration supports this result. Nothing precludes the Bundestag,
in exercising its legislative discretion, from using several laws to regulate a subject. It
can, for example, put the substantive provisions in one law, over which the Bundesrat
only has a suspensive veto [see Article 77]. The Bundestag can then enact provisions
respecting the states administrative procedure in another law that requires Bundes-
rat consentas not infrequently happens in practice. If one accepted the argument
of the Bundesrat that every amendment of a law requiring Bundesrat consent in the
first instance in turn requires Bundesrat consent for later amendments, then, in the case
of bifurcated legislation, only the law containing substantive provisions would require
the renewed consent of the Bundesrat. What if substantive and procedural provisions
were originally included in one statute that required the Bundesrats consent? Follow-
ing the Bundesrats argument, subsequent amendments to this law that affect only the
substantive provisions would require the Bundesrats consent. But it would be absurd
to decide these two cases differently. . . .
2. Nonetheless, there are a number of cases in which the Bundesrats consent is
necessary for the amendment of a law that originally required the Bundesrats con-
sent. Th is is apparent when the amending law contains new provisions that, in their
own right, require the Bundesrats consent. The same is true when the amendment
affects those provisions of the original statute that triggered the need for the Bundes-
rats consent. Also included is the case in which a statute amends another statute re-
quiring consent and containing substantive norms as well as provisions respecting the
states administration. To be sure, the amending statute may be confi ned to substan-
tive matters. But it might make such changes in this realm that it gives an essentially
different meaning and scope to the administrative provisions it does not expressly
amend. . . .
[The Court went on to fi nd that the amending law in this case did not regulate
Land procedure and thus held that the Bundesrats consent was not required.]
118 chapter thr ee
Justices von Schlabrendorff, Geiger, and Rinck, dissenting. . . .
Everyone agrees that the Basic Law contains no express provision requiring the
Bundesrats consent for the amendment of every statute that itself requires such con-
sent. It cannot in the least be deduced from this that an amendment would require
consent only when it falls within the rule of Article 84 (1) or another express provi-
sion of the Basic Lawespecially since, according to our decision of 24 February
1970, the Basic Law does not exhaustively list the cases in which a law requires
consent.
3. a. . . . It is assumed that an imbalance between the federal legislative bodies would
result, to the prejudice of the Bundestag, if the Bundesrats consent were to be required
for every law that amends a statute that originally required the Bundesrats consent. But
this assumption has not been proven. . . . The argument . . . that the exception would
become the rule and the rule the exception is just as unconvincing. . . .
b. For the instant case . . . it is quite irrelevant how we should generally determine
the relationship between Bundestag and Bundesrat in the legislative process. . . .
When a statute requires consent, the position of the Bundesrat is no weaker than that
of the Bundestag. . . . Everyone agrees that consent to a statute means consent to the
entire statute as a legislative unit. . . .
. . . The amending law is, to be sure, a new legislative unit, . . . but not an . . .
independent, enforceable regulation in itself; it derives its meaning only in connection
with the law it amends. . . . The essential content of the amending statute necessarily
becomes a part of the original statute that undoubtedly required consent because of
its content and continues to require consent so long as it exists. . . .
Finally, the consent requirement . . . follows from the further consideration that
legislation is a political process that demands compromise. . . . The addition of new
material by an amending law . . . alters the content of that compromise, and one can-
not preclude the possibilityindeed it is quite likelythat the Bundesrat would not
have agreed to this new compromise. . . .
4. In addition, our position is consistent with this Courts previous decision, in
which the Court held that the Bundesrat must approve all regulations issued under a
statute requiring consent pursuant to Article 80 (2). It would hardly be comprehen-
sible to assume that regulations implementing such a law . . . required the Bundes-
rats consent but that amendments do not.

The Bundesrat and the Reform of German Federalism. In the Bundesrat Case the
Court rejected the theory of co-responsibility. Nonetheless, the Bundesrat developed
into a virtually equal player on the field of national legislation. David Conradt noted:
The framers of the Basic Law anticipated that only about 10 percent of all federal
legislation would require Bundesrat approval and hence be subject to the chambers
veto. In practice, however, through bargaining in the legal committees in each house
and judicial interpretation, the scope of the Bundesrats absolute veto power has
been enlarged to the point at which it can now veto roughly 60 percent of all federal
Feder alism 119
legislation. Th is unforeseen development occurred largely because many federal
laws which refer to matters not subject to Bundesrat veto nonetheless contain provi-
sions that set forth how the states are to administer and implement the legislation.
Citing Article 84 of the Basic Law, the states have argued that, since they are in-
structed as to how the federal legislation is to be administered, the legislation re-
quires Bundesrat approval in both its substantive and procedural aspects.76
By jealously guarding and in some instances broadly interpreting the Bundesrats
consent power, the Constitutional Court helped to transform the Bundesrat from
the mere checking institution that it was in the 1950s and 1960s into one of the most
powerful institutions in the Federal Republic.77 Moreover, in giving its consent to
numerous constitutional amendments over the years, at least half of which resulted
in the expansion of the federations power, the Bundesrat, through skillful maneuver-
ing, ensured that its consent would be constitutionally required in the exercise of
these new powers. After the adoption of a constitutional amendment in 1992 (Article
23), the Bundesrats power also extended deeply into the realm of European and
foreign policy.
Conradt noted the criticism of the expansion of the Bundesrats power and the
role that phenomenon has played in rousing calls for reform.
The enlargement of Bundesrat power . . . has prompted some students of constitu-
tional politics to propose that the powers of the Lnder and Federal Government be
more explicitly stated in the constitution. . . . In recent years the growing debate
over the inability of the state to enact meaningful reforms has included frequent
proposals to scale back the chambers veto power. Th is is one topic that a new consti-
tutional reform [is] expected to address. . . . All these developments and potential
future changes make the current Bundesrat a much more political institution and
thus a greater object of controversy than it was in the early years of the Federal
Republic.78
The ability of the Bundesrat to block federal legislation came to a head during the
early 2000s when Federal Chancellor Gerhard Schrders spd/Green federal govern-
ment pursued a range of economic and labor-market reforms that were ultimately
held at bay by the cdu-dominated Bundesrat, leading to what some critics referred to
as reform gridlock (Reformstau). There was deep division in the country over the ef-
ficacy and propriety of Schrders Agenda 2010 reform package, but there was broad
sentiment that some reform was necessary (in the 2005 national election the cdu
opposition also campaigned on a reform platform) and, in any event, Schrders
Agenda 2010 had the benefit of a clear (if slender) majority in the Bundestag. Th is
raised the question anew: Should the Bundesrat be allowed to thwart the will of the
prevailing, popularly elected parliamentary majority? Criticism flowed in the other
direction as well. Arthur Gunlicks noted that according to many critics, . . . the fed-
eration has taken on too much responsibility for legislation, choking off the power of
the states through its expansive exercise of concurrent and joint-tasks legislative au-
thority.79 Th is mutual antagonism, and the often opaque interdependence between
120 chapter thr ee
the competence of the federation and the states, has come to be known as political
interconnectedness (Politikverflechtung). Both sides along the partisan and federal-
ist axes seemed to agree that a broad reconceptualization of German federalism was
necessary if the Reformstau was to be broken. A broadly representative commission
was on the verge of hammering out the details late in 2004, including the Bundesrats
surrender of its veto power over some areas of federal legislation in exchange for ob-
taining greater authority over some fields that had come to be dominated by the fed-
eration. As the discussion in the section below will make clear, it was hardly surpris-
ing that the commissions efforts ultimately foundered on the allocation of authority
between the federation and the Lnder over education policy.
A year later, when Chancellor Angela Merkel engineered a grand coalition of
Christian and Social Democrats after a razor-thin federal election, there was new
hope of achieving significant changes in the division of legislative power between lev-
els of government. The coalition parties proceeded to introduce major proposals along
these lines. Earlier, in the section on apportionment and distribution of revenue, we
identified important changes that the 2006 amendments wove into the fi nancial
constitution. In the following section, we also describe related changes in the distri-
bution of legislative power brought about by major amendments to the Basic Law in
both 2006 and 2009. All these changes were designed to streamline the policy-
making process in the German federal system, a process that often had been ob-
structed by the Bundesrat.

division of legislative power

The Basic Law divides legislative power between the federation and the Lnder. It
reserves the bulk of such power to the Lnder, but over the years much of this law-
making authority has gravitated to the federation.80 Thus, most laws enacted in
Germany are federal laws. But under the Basic Law their administration is mainly
the responsibility of the Lnder, with only a limited number of administrative com-
petences allocated to the federation. Th is system of administrative federalism, as it
often is called, encourages flexibility in adjusting national policy to local condi-
tions.81 The system is complex, as dozens of articles in the Basic Law define the inter-
locking relations between federal and Land governments. Many of these articles, such
as those discussed earlier in the section on the apportionment and distribution of tax
revenue, contain exceedingly detailed provisions. These provisions have been the piv-
otal focus of numerous constitutional amendments, in many instances shift ing power
from the Land to the federal level, usually to meet needs not contemplated by the
framers of the Basic Law and occasionally in response to the decisions of the Federal
Constitutional Court.82
Germanys scheme of divided powers and administrative federalism was origi-
nally set forth in sections of the Basic Law dealing respectively with federal legisla-
tion (Articles 70 to 75) and the execution of federal law (Articles 83 to 91). According
Feder alism 121
to the latter provisions, the Lnder are charged with implementing federal law sub-
ject to the supervisory authority of the federal government. For this reason, most
administrative authorities in Germany are Land agencies, except that federal law
may provide for the uniform training of civil servants and other public employees.
Federal administration is largely confi ned to those limited areas of public policy for
which the federation is solely responsible. As for the division of legislative power laid
out in Articles 70 to 75, the Basic Law in its earliest version included a short list of
subjects over which the federation would have exclusive competence (Article 73). In
addition, under Article 75, the federation was empowered to enact general provisions
of law or framework laws on subjects such as land distribution, regional planning,
and the legal status of Land public servants. Each of these areas fell under the pre-
liminary competence of the Lnder, but the federation was empowered under Article
75 to provide the overarching framework for carry ing out state and local laws re-
lated to these matters. Article 74, fi nally, extended the concurrent legislative author-
ity of the federation and Lnder to nearly all other fields of public policy, including
civil and criminal law. The Lnder could regulate these subjects as they wished but
only if the federation failed to exercise its legislative rights. Article 72 (2), however,
provided that the federations concurrent and framework authority could be exer-
cised only when necessary to effectively regulate the field and to avoid threats to the
maintenance of legal or economic unity, especially the maintenance of equivalent
living conditions beyond the territory of any one state.83 Thus, except as otherwise
provided or permitted by the Basic Law, the exercise of public authority and the dis-
charge of public functions remained with the Lnder. Th is fact, however, would
change with Germanys political and constitutional development.
In the ensuing decades, social and political change transformed the face of the
Federal Republic. The Basic Laws division of legislative power between federation
and Lnder would change accordingly and substantially, mostly taking the form of
transfers of authority to the national level. By the 1990s some twenty amendments
had shifted legislative power to the federation. Th is was accomplished both by major
additions to the exclusive powers of the federation and by an expanded list of subjects
over which the federation would have concurrent jurisdiction, the expectations being
that the federation would enact preemptive legislation in these areas to the exclusion
of parallel legislation by the Lnder. These new concurrent powers included the making
of regulations on organ transplants, state liability, hospitalization costs, waste dis-
posal, air pollution, weapons and explosives, the promotion of scientific research, and
the production and utilization of nuclear energy. In 1969, with the enactment of the
22nd Amendment to the Basic Law, the federations catalogue of framework legisla-
tive powers under Article 75 was further extended to include general principles gov-
erning higher education, an area of lawmaking the federation would assertively
enter to assist the Lnder in meeting the ever-increasing demands of maintaining
Germanys institutions of higher learning. Equally significant was the enactment of
the 28th Amendment to the Basic Law in 1971, creating a new Article 74a, which ex-
tended the concurrent legislative power of the federation to the salaries and pensions
122 chapter thr ee
of judges and other members of the public ser vice. It is crucial to note that Article
74a, like the other shifts in legislative power cited, expanded the required consent of
the Bundesrat because it affected the administration of federal law by the Lnder. In
addition, as indicated elsewhere in this chapter, the Federal Constitutional Court
had often ruled in favor of the Bundesrat in confl icts over the extent of its required
consent to legislation passed by the Bundestag.

Reforms of 2006 and 2009. The Basic Laws complex scheme for the division of legis-
lative power between the federation and Lnder created persistent, serious problems.
On the one hand, the gathering powers of the Bundesrat, in par ticu lar its capacity to
impede the will of the parliamentary majority, undermined several federal govern-
ments attempts to pursue policy reform. As Arthur Gunlicks noted, [o]ne of the
major goals of the proponents of reform was . . . to fi nd ways to reduce the percentage
of laws requiring Bundesrats consent.84 On the other hand, commentators faulted
the schemes complexity and lack of clarity for the drift in policy making, the lack of
political accountability, and Germanys dwindling effectiveness in the European
Union. Essentially, as Interior Minister Wolfgang Schuble explained, the reforms
fi nally adopted in 2006 were about assigning government tasks more clearly and
slightly reducing the states participation in federal lawmaking or reducing the num-
ber of laws requiring the states approval [via the Bundesrat].85
The 2006 federalism reform significantly altered the traditional scheme of divided
power, in some instances reacting to decisions of the Federal Constitutional Court that
had favored the Lnder. The federation still possesses only those legislative powers as-
signed to it by the Basic Law while the remaining unenumerated legislative authority
resides in the Lnder. But the federations legislative competence, exercised by the Bun-
destag,86 now includes only two broad categories, namely, exclusive and concurrent
legislative authority. The federations exclusive legislative competence was expanded by
the reforms of 2006 and 2009, now reaching subjects formerly within its list of concur-
rent powers. The new subjects of the federations exclusive jurisdiction include regula-
tion of weapons and explosives, production and use of nuclear energy for peaceful pur-
poses, disposal of radioactive material, defense by federal police against international
terrorism in cases where certain conditions are met (legislation in this area requires the
Bundesrats approval), care of those injured or affected by war, and protection against
the exportation of cultural goods. The catalogue of exclusive federal power continues to
cover foreign affairs and defense, customs and international trade, citizenship and im-
migration, and postal and telecommunication ser vices. Aviation and railways remain,
as before, among these exclusive powers, but amendments to the Basic Law in 1992 and
1993 authorized the privatization of these institutions.87 The Lnder may legislate in
matters of exclusive federal legislation but only where and to the extent that they are
explicitly empowered [to do so] by federal law (Article 71).
After the reforms of 2006, the federations concurrent legislative powersthose
shared with the Lnderwere expanded to include thirty-three general subject areas.
Apart from the broad domains of civil and criminal law, these jurisdictional areas
Feder alism 123
included the equally broad fields of labor law, corporate law, public welfare, agricul-
tural policy, economic sector legislation, land transfers, and public health (Articles
72 and 74). Among the most important of the 2006 reforms were the repeal of Arti-
cles 74a and 75. With the repeal Article 74a, the status and duties of civil servants
(Beamten) of the Lnder, local governments, and other public corporations (includ-
ing judges) were transferred to the newly expanded list of concurrent legislative pow-
ers. The repeal of Article 75 eliminated the federations authority to enact frame-
work lawsthat is, policies requiring the coordination of federal and Land
legislation, whereby the federation issued broad policy mandates while leaving the
regulation of the details for the implementation of those policies to the Lnder.
These reforms left plenty of space for continued federal-state cooperation. But in
certain respects, they also fi rmed up the powers and responsibilities of the Lnder. For
example, laws enacted pursuant to the federations old framework jurisdiction, laws
now within its concurrent authority, continued in force as framework laws. But under
the 2006 amendments to Article 72 the Lnder are permitted to pass laws deviating
from this federal legislation. In 2009, under the new Article 87d, the federation also
was empowered to delegate to the Lnder responsibilities over air transport adminis-
tration (subject to the Bundesrats consent). Additional provisions added to the Basic
Law in 2009 called for cooperation and cost-sharing between the federation and Ln-
der in planning, constructing, and operating systems of information technology.
One purpose of the 2009 changes, laid down in the 57th Amendment to the Basic Law,
was to grant both levels of government the authority to specify standards for gather-
ing intelligence and to adopt rules for exchanges between their respective information-
gathering ser vices. Finally, Article 23 (committing Germany to the development of
the European Union) was amended in 2009 to reinforce the principle of subsidiarity.
Article 23 (1a) did so by granting the Bundestag and Bundesrat the right to bring an
action before the Court of Justice of the European Union to challenge a legislative
act of the European Union for infringing the principle of subsidiarity, meaning that
such an action may be challengedin the Bundestag by one-fourth of its members
when it interferes with a legislative competence of the federation or of the Lnder.

The Jurisprudence of Federalism Reform. Before proceeding to the Atomic Weap-


ons Referendum I Case, it should be noted that the demise of the federations frame-
work legislative competence was largely a consequence of decisions of the Federal
Constitutional Court from 2004 and 2005. In the reformed scheme the jurispruden-
tial focus remains on the boundary between the federations and states independent
and plenary legislative authority that is marked out by Articles 71 and 74 (exclusive and
concurrent legislation).88 Under the previous scheme these federal legislative powers
were narrowly interpreted. In the field of exclusive legislation, in the First Broadcasting
Case (1961; nos. 3.2 and 8.11), for example, the Court excluded broadcasting (as opposed
to the regulation of broadcasting technologies) from the area of ser vices in the field
oftelecommunication over which the federation has exclusive legislative authority.
The federations concurrent legislative powers also have been narrowly construed.
124 chapter thr ee
Thus, the Basic Laws theory of federalism leaves little room for a jurisprudence of
implied national power. For example, in 1962 the Court struck a federal law regulating
the use of explosives because it could not be justified under the concurrent power over
economic affairs. The law, said the Court, had more to do with maintaining order
and security than with furthering economic objectives.89 Ten years later Parliament
circumvented the Explosives Control Case (1962) by amending Article 74 to include
weapons and explosives among the federations concurrent legislative powers. But in
2006, as noted earlier, this authority was transferred to the federations list of exclusive
legislative powers. The Courts narrow interpretation of the federations legislative
power as defi ned by the Basic Law is evidenced in the following case.

3.7 Atomic Weapons Referendum I Case (1958)


8 BVerfGE 104
[In the mid-1950s equipping the German army with tactical nuclear weapons
was at the top of the Adenauer governments military agenda. Social Democrats
bitterly opposed the plan for nuclear armament. In an effort to show that the
public opposed nuclear weapons on German soil, several Social Democratic
controlled cities and states planned to hold referenda on the issue. The Adenauer
government challenged the constitutionality of these referenda as an invasion of
the federations exclusive power over military affairs. Th is case, brought in the
form of an abstract judicial review proceeding, challenged the validity of refer-
enda in Hamburg and Bremen. The Court sustained the challenge.]

Judgment of the Second Senate. . . .
B. III. . . . In a federal state, the federal constitution limits the authority of states
and therefore the jurisdiction over which the states exercise authority. The referen-
dum laws of Hamburg and Bremen transgress constitutional limits drawn by the
Basic Law.
1. Matters of defense fall within the exclusive jurisdiction of the federation. Article
73 (1) of the Basic Law sets out the authority of the Parliament over matters of de-
fense. Articles 65a, 87a, and 87b confi rm the authority of the federal government over
matters of defense. . . . Thus, the federation has sole and plenary [legislative and ex-
ecutive] authority over the task of defense as far as it concerns the federal army and
its armament. . . .
Neither the two referendum laws nor the participation of the people of Hamburg
and Bremen in the referenda interfere with the federations exclusive authority to
determine or technically regulate a matter of defensefor example, arming the fed-
eral military. But that is not the decisive point. What is decisive is the clearly recog-
nizable purpose of the referendum laws in Hamburg and Bremen. In the area of
defense, especially with respect to arming the military, the federal government has
Feder alism 125
chosen a par ticu lar policy with the Bundestags approval. The opposition in the
Bundestag considers this policy wrong and has fought it passionately. The opposition
has not been able to win in the Bundestag but believes that a majority of the people
shares its view. It hopes that political pressure resulting from successful referenda
will force the federal government to reverse its policy. Speeches by Social Democrats
in the Bundestag have clearly expressed this belief. . . .
The clear goal of these two referendato force the competent constitutional organs
of the federation to change a decisionrepresents an attempted infringement upon
the exclusive jurisdiction of the federation. States infringe on the exclusive, autono-
mous authority of federal organs not only when they try to regulate a matter them-
selves, but also when they schedule a referendum in an effort to pressure federal organs
into changing their decisions. The infringement occurs when a state attempts to form a
will of the state to oppose the constitutionally formed will of the federation.
a. The same conclusion is reached if one examines legislative authority to order
referenda. . . . In a merely consultative referendum the people take part in the exer-
cise of state authority just as they do in elections and plebiscites. The general cata log
of competences in the Basic Law (Articles 7375) does not contain any provision re-
lating to the authority of the federation or states to enact electoral laws. Neverthe-
less, until now it has never been seriously doubted that the federation cannot pass
electoral laws for a state parliamentary election or that a Land cannot pass electoral
laws for the Bundestag election. A Land cannot permit either a referendum or a plebi-
scite on a subject belonging exclusively to the legislative competence of the federa-
tion or a Land referendum on a matter of exclusive federal jurisdiction.

Legislative Powers of the States. Not confronted with an implied-powers provision
similar to the American necessary and proper clause,90 the German states possess,
fully, those powers and responsibilities not expressly conferred on or exercised by
the federation.91 These fully reservedand unenumeratedpowers once included
cultural matters, education, hospitals, and various social ser vices. The 2006 federal-
ism reform explicitly assigned some parts of education and health care policy to the
concurrent legislative competence.92 In any event, the spectrum of unenumerated
powers is short. As the Concordat Case shows, the Court has tended to guard these
powers closely, probably because they are so few.93 The states victory in Concordat is
remarkable in that a local interest prevailed over the national governments treaty-
making authority, producing a result contrary to the outcome in the U.S. Supreme
Court case Missouri v. Holland (1920).94

3.8 Concordat Case (1957)


6 BVerfGE 309
[In 1933 Hitlers regime concluded a concordat (treaty) with the Holy See. The
concordat recognized the right of the Catholic Church to freedom of religion
126 chapter thr ee
and control over Church properties. It also included guarantees of religious
education in the public schools and state-supported confessional schools for
the children of Catholic parents. In 1954 Lower Saxony, a predominantly Prot-
estant Land, provided for nondenominational schools for all children. The
federal government, at the urging of the Holy See, contested the validity of the
states new policy, relying on the Constitutional Courts jurisdiction over
federal-state confl icts. The federal government argued that Lower Saxony had
usurped federal authority to conduct foreign relations by refusing to give force
to the terms of the 1933 concordat. The Court sustained the validity of the con-
cordat under the general principles of international law but then proceeded to
rule that Article 23 of the concordat, guaranteeing confessional schools, is not
enforceable in states with confl icting school legislation. Th is case needs to be
understood in light of the vigilance with which the Court tends to guard the
narrow domain of authority the Lnder have managed to reserve to themselves.]

Judgment of the Second Senate. . . .
E. II. We need not here examine the extent of the states obligation toward the federa-
tion to honor treaties internationally binding upon the Federal Republic of Ger-
many. In no case could the states obligation toward the federation to honor the con-
cordats educational provisions . . . be derived from the constitutional order created
by the Basic Law. Articles 7, 30, and 70 et seq. of the Basic Law have made certain
fundamental choices that shape the relationship between federation and Lnder. . . .
These choices reflect no such obligation. In contrast to the Weimar Constitution,
these provisions establish the Lnder as the exclusive custodians of cultural leader-
ship. In the area of denominational organization of the school system, only the provi-
sions of Articles 7 and 141 limit this exclusive authority. Th is allocation is an impor-
tant element of the federal structure of the Federal Republic of Germany.
1. We must proceed from the view that the Lnder alone are entitled to make law
where they possess exclusive legislative authority. In Articles 30 and 70 et seq. the
Basic Law very clearly expresses this principle. Only obligations arising from federal
constitutional law limit the legislative freedom of the Lnder in this area because the
Parliament cannot pass a law in an area where the Lnder have exclusive legislative
authority.
We must, therefore, consider as an important principle of federal constitutional
law that the Lnder are subject to no limitation upon their legislative authority other
than that imposed by the Basic Law. Th is principle also applies to Land legislation that
is in confl ict with [preconstitutional] law that has continued validity pursuant to
Articles 123 (1) and (2). . . .
To bind the Lnder constitutionally to the educational provisions of the concor-
dat would flatly contradict their authority to make educational law freely within the
limits of the constitution.
Feder alism 127
2. With respect to the organization of the school system along denominational
lines, the Basic Law made a specific choice that rejected the possibility of constitution-
ally binding the Lnder to the educational provisions of the concordat. Based upon
the states freedom of action, Articles 7 and 141 of the Basic Law establish the limits
within which the Lnder parliaments should be confined in this particular area. . . .
Th is choice is not reconcilable with the educational provisions of the concordat. . . .
3. [One] can correctly understand the meaning of Article 7 . . . only by considering
the background of the entire situation surrounding the [framing of the] Basic Law
for the area of educational law.
From 1933 to 1945 the Hitler regime did not enforce the educational provisions of
the concordat and in many cases allowed them to be violated.
After the collapse of the Reich in 1945, the Lnder helped to accomplish the civil
reconstruction of Germany. They reconstructed civil life during a period when the
entire German state was not yet capable of action. As a result, during this time the
Lnder could alter the Reichs existing legal regime. Thus, the Basic Law also expressly
recognized the changes the Lnder made to the Reichs existing legal regime during
this period (Article 125 (2)).
In the governmental structure of the Lnder the issue of education had par ticu lar
importance and was the subject of lively dispute; the Lnder often deviated from the
educational provisions of the concordat. . . .
In the light of this background, the constitutions framers had to proceed from the
fact that a large part of the new educational law enacted prior to the promulgation of the
Basic Law contradicted the educational provisions of the concordat. How these events
are to be evaluated from the standpoint of international law cannot concern us here. . . .
This legal situation . . . made it imperative for the Basic Law to state expressly any inten-
tion to constitutionally obligate the Lnder to fulfi ll the educational provisions of the
concordat. In view of the diversified legal situation in education among the states and
the Basic Laws choices in this area (Articles 7 and 141), the constitution could not have
been silent on educational matters if it wished to oblige the Lnder to observe the edu-
cational provisions of the concordat. Moreover, the Basic Law could not have been
content generally to ordain the constitutional validity of domestic law corresponding
to international treaties of the German Reich. This order neither removed contradic-
tory state laws nor bound the state legislature to the continued validity of the law.
5. To understand correctly the constitutional order of the Federal Republic of
Germany, one must realize that the Basic Laws division of authority between the
federation and the Lnder was not a matter of apportioning the power of a totalitar-
ian state. . . . The events from 1945 to 1949 meant more than a change in the form of
government. . . . Rather, a fundamental reconstruction gave German public author-
ity an entirely new structure and form in the federation and Lnder, in place of the
state organization that completely collapsed and was entirely removed after 1945. The
fact that this reconstruction took place during a lag time between the development of
governmental power in the Lnder and the reorganization of the entire German state
confronted the framers of the Basic Law with two faits accomplis. On the one hand,
128 chapter thr ee
Land law had largely developed independently and to such a degree . . . that the Basic
Law could not ignore it. . . . On the other hand, the Basic Law could not arbitrarily
curb the authority of the Lnder, if only because of their political influence. The par-
liaments of two-thirds of the Lnder had to accept the Basic Law for it to become
effective. . . . In this constitutional and political situation, the federal constitution
could not guarantee the states acceptance of obligations contracted by the Reich
government to the same extent it might perhaps have been able to do . . . had it had as
its task the distribution between federation and Lnder of the unlimited power of a
totalitarian state.
In interpreting the Basic Law, one must proceed from the inner harmony of the
constitutional structure that gave the German state a new federal and democratic
order in place of a totalitarian dictatorship. The supposition that the Lnder are obli-
gated vis--vis the federation to observe the concordats educational provisions is
irreconcilable with the basic decisions of the constitutional structure, including the
decision to confer upon the Lnder supremacy over education policy.
[In the next section of its opinion the Court invoked once again the doctrine of
federal comity. It seemed necessary to speak of comity here as a way of bridging
the gap between the right of a Land to legislate in areas within its authority and
the right of the federation to have the Lnder respect its international treaty
obligations. Bundestreue demands, said the Court, that each state consider
the interest . . . of the federation, particularly . . . in the area of foreign relations,
where the federation alone is competent. The Court wished to emphasize the
states duty of fidelity to the federation in foreign affairs even while vindicating
Lower Saxony in this instance.]


Arbitrating the Federal-State Relationship. The legalism inherent in German feder-
alism contains the seeds of perpetual constitutional conflict. The Bundesrats efforts to
challenge the centralizing tendencies of the federation have been controversial, at least
in those areas for which its consent is also required. Constitutional amendments and
national reform commissions, like those culminating in the 2006 federalism reform,
have also been raised in response to Germanys more severe federalist tensions. Judicial
review by the Constitutional Court provides yet another venue in the struggle to chart
the boundary between Land and federal authority. Most federal-state conflicts do not
end up before the Court, resolving themselves politically through the mechanisms of
cooperative federalism and various forms of coordinated activity among the Lnder.
Even when governed by different political parties, the federation and Lnder have pre-
ferred bargaining over litigation as the usual method of settling their differences.
Despite the tendency, in a climate of cooperative federalism, for major developments
in the federal system to pass the Court by, remarked Blair, rulings of the Bundesver-
fassungsgericht have been sought and given over a wide range of federal issues and have
affected in detail the relations between the Bund and Lnder.95
Feder alism 129
As demonstrated by Concordat, an exception to the general affi nity for political
resolution of federalist confl icts has been in the vigorously contested field of educa-
tion and vocational training. Th is seems to be a consequence of two factors: Germa-
nys long and proud educational tradition with distinct local roots and the belief held
by different political camps that, as one set of commentators noted, education bears
the potential for social-engineering.96 Not surprisingly, the commission empow-
ered to explore federalism reform in 2003,97 prior to the creation of the more politi-
cally amenable cdu-spd grand coalition government formed after the 2005 elec-
tion, broke down when it could not reach agreement on the reform of legislative
competence over education policy. In the past, tensions involving education policy
have flared, in par tic u lar, with respect to the federations exercise of its framework
competence over general principles respecting higher education pursuant to Ar-
ticle 75 (1) [1a].98 The federations framework legislative competence was eliminated
by the 2006 federalism reform thanks in no small part to this legacy. But the federa-
tions interest in education policy is so strong that it also has sought to avail itself of
its concurrent legislative authority to gain influence over the field, even where the
nexus between an enumerated power under Article 74 and education was tenuous.
These cases provide another example of the Courts tendency not to read any im-
plied powers into Article 74. The Engineer Case for example, involved the defi nition
of the scope of the federations concurrent legislative authority in the context of
policy affecting the training and certification of engineers where the relevant con-
current power was the law relating to economic affairs (mining, industry, energy,
craft s, trades, commerce, banking, stock exchanges, and private insurance).99
Like First Broadcasting and Concordat, the Engineer Case resulted in a victory for
the Lnder. Indeed, as already suggested, the vast scope of enumerated federal leg-
islative competences has prompted the Court to guard with special vigilance the
little authority that remains with the Lnder under the Basic Law. In this sense the
residual powers clause of Article 30 is a greater limitation on federal power than
the reserved powers clause of the U.S. Constitutions Tenth Amendment has
proven to be.

3.9 Engineer Case (1969)


26 BVerfGE 246
[Article 74 (1) [11] of the Basic Law grants the federation concurrent authority
over economic affairs (mining, industry, energy, craft s, trades, commerce,
banking, stock exchanges, and private insurance). In 1965 the federal govern-
ment, presumably acting under this authority, adopted a statute designed to
protect the professional title engineer. The statute set forth educational and
occupational standards for the use of the title; it did not regulate the practice of
engineering. Th ree persons whose prior training failed to satisfy the new re-
quirements lodged constitutional complaints against the statute, claiming a viola-
tion of the right to the free development of ones personality. The Constitutional
130 chapter thr ee
Court sustained the complaints after ruling that the federal law exceeded the
federal governments authority under Article 74.]

Judgment of the Second Senate. . . .
C. II. I. . . . The restriction of the [federal] regulation to persons gainfully employed
in the economy, particularly in manufacturing or other commercial enterprises, re-
flects the concern originally raised against the legislative competence of the federa-
tion when the matter was being considered in the Bundesrat. By confi ning the regu-
lation to this group, lawmakers thought that they were legitimately exercising their
authority under the concurrent jurisdiction conferred on the federation by Article
74 (1) [11].
2. The subject regulated by the Engineer Act does not involve a law relating to
economic matters within the meaning of Article 74 (1) [11]. In contrast to the Impe-
rial Constitution of 1871 and the Weimar Constitution of 1919, the Basic Law forbids
a broad interpretation of provisions conferring authority on the federation. Article
30 underscores the legislative priority conferred on the Lnder. Article 70 (1) makes
this clear by providing that the Lnder enjoy the right to legislate to the extent that
the Basic Law does not confer legislative power on the federation. The federation is
limited to the enumerated powers specified in Articles 73 through 75.
Economic matters within the meaning of Article 74 (1) [11] extend to regulations
of economic life and to commercial activities as such, particularly to the processes
of production, manufacturing, and distribution of goods. Regulations pertaining to
economic competition and consumer protection are also economic matters within
the meaning of the Basic Law. Thus, the Ministry of Economics defends the Engineer
Act as a measure designed to promote clarity and truth in the conduct of business. A
person should be able to transact business in the knowledge that a business partner
claiming to be an engineer possesses certain qualifications.
The Engineer Act, however, does not accomplish these purposes. It neither pre-
vents unqualified persons from offering engineering ser vices nor does it guarantee
that business partners who claim to be engineers do, in fact, have certain creden-
tials. . . . If such persons have engaged in engineering ser vices prior to the enactment
of the law and have registered within a two-year period following its entry into force,
they may continue to use the title. . . . Moreover, the Engineer Act does not purport
to defi ne the professional activity of engineering. . . . Under Article 74 (1) [11], the
federation may indeed regulate jobs in commerce and industry, defi ne the sub-
stance of such positions, and specify the qualifications needed to fi ll them. . . .
3. The federation lacks authority to pass the Engineer Act, however, because the
law is not connected to a subject matter within its express authority under the Basic
Law [reference here is to the principle of Sachzusammenhang, which was described
in the discussion of the First Broadcasting Case (1961; nos. 3.2 and 8.11)]. Federal au-
thority would obtain here only if a subject within the express jurisdiction of the
Feder alism 131
federation could not be regulated without simultaneously regulating a subject not
specifically within its competence. In short, encroaching upon a subject matter not
within the federations jurisdiction must be a necessary condition for regulating a
subject expressly within its power. The federation may regulate the former only when
also regulating the latter. That condition, however, does not exist here.
4. Federal legislative competence also fails in this case because of the nature of the
subject matter [Natur der Sache].

[Natur der Sache is a guideline for interpreting the constitution that entails
deducing federal legislative authority from the subject matter to be regu-
lated, which, according to its nature, would normally not fall within federal
jurisdiction but which only the federation can effectively regulate. The argu-
mentation must be based on an express authorization of federal legislative
power and not on an authorization that has no basis at all in the constitution.
Examples are the authority to determine the seat of the federal capital and to
create national symbols (see Plenum Building Law I Case, 3 BVerfGE 407, 422
[1954]).]

The argument that a national uniform policy on the use of the title engineer is
feasible does not sufficiently warrant an expanded interpretation of federal power.
The Federal Constitutional Court . . . has recognized federal legislative competence
based upon the nature of the subject matter only if the federation, and only the fed-
eration, can regulate certain fields because they constitute, by their very nature, a
most individual matter removed a priori from the legislative authority of the federa-
tion. Protection of the professional title engineer, to the extent that such protection
is needed, does not require one uniform plan of regulation by the federation. Unifor-
mity can easily be achieved in this instance by congruent Land laws. . . .
III. Because federal lawmakers lack authority, the applicable provision of the
Engineer Act is incompatible with the Basic Law. It violates complainants basic right
under Article 2 (1) and is therefore void.

Assessing Whether Concurrent Legislation Is Essential. In addition to the Consti-
tutional Courts strict construction of the legislative powers granted the federation
by the Basic Law, Article 72 (2) imposed a separate limitation on the federations ex-
ercise of its general concurrent legislative authority (and previously on the exercise of
its now-abolished framework legislative authority), requiring that such legislation be
essential in promoting equivalent living conditions in the federation or in protecting
the legal and economic unity in the general interest of the federation.100 Whether
federal legislation is essential, however, was a question the Court left mainly to the
political discretion of Parliament, unless federal legislation impinged upon an area
of traditional Land concern.101 The 2006 federalism reform radically changed Ar-
ticle 72 (2):
132 chapter thr ee
Th is second [section of Article 72] has now been changed so that the federation no
longer has the right to pass legislation under its general concurrent powers; rather, it
retains the power to pass essential legislation in ten areas only (Article 74 (1) [4, 7,
11, 13, 15, 19a, 20, 22, 25, and 26]). In sixteen areas it has concurrent powers without
having to meet the essential condition, which some see as having a centralizing
effect. A new 3 states that in six other areas (Article 74 (1) [2833]) the Lnder
have the right to deviate from federal laws and that these laws go into effect at the
earliest six months after passage, unless the Bundesrat has agreed to a different
timetable.102
It seems likely that in overhauling the federations authority to enact essential con-
current legislation, the 2006 federalism reform took cognizance of the Constitu-
tional Courts Geriatric Nursing Act Case which expressed a decidedly pro-state
skepticism of the federations assertion that the challenged law was essential.
Certainly, the Courts strict interpretation of the term essential in Geriatric Nurs-
ing is relevant to the ten areas for which that is still a prerequisite under the revised
Article 72 (2).
In Geriatric Nursing, the Second Senate of the Constitutional Court abandoned
the restraint the Court had long exercised regarding whether federal concurrent leg-
islation was essential under Article 72 (2).103 Considering the aforementioned sen-
sitivity about educational matters, it is not astonishing that the confl ict arose in the
context of a federal law that sought to regulate the training and certification of geriat-
ric nurses pursuant to Article 74 (1) [19], which still grants the federation concurrent
legislative authority over the admission to the medical profession and to ancillary
professions or occupations. . . . The Court reached the dramatic conclusion that the
intent of the framers of the amendments made to the Basic Law in 1994 was to make
the essential clause of Article 72 (2) justiciable and to deprive the Bundestag of all
discretion over the matter. Some have interpreted the Courts move as suggestive of
a reinvigorated federalism jurisprudence that paved the way for the 2006 federalism
reform. Th is view is supported by the fact that in exercising its review of the question,
the Court recalled that the object of the federal constitutional system is to open for
the Lnder independent spheres of competence for par ticu lar and differentiated reg-
ulation.104 After having asserted its power to review the question of whether the
federal concurrent legislation was essential, the Court found that the high standard
of review it fashioned for resolving the case had nonetheless been satisfied.

3.10 Geriatric Nursing Act Case (2002)


106 BVerfGE 62
[A federal law affecting geriatric nursing care in relevant part established and
regulated the professions of geriatric nurse and geriatric assistant. Additionally,
the law involved provisions on the purpose and duration of training for a cer-
tificate to perform these ser vices. These and other provisions of the law were
Feder alism 133
intended to regulate the field and to standardize the ser vices throughout Ger-
many, especially in anticipation of the expected dramatic increase in demand
for these ser vices necessitated by Germanys aging population. Before the en-
actment of the law there were significant differences in the laws regulating the
field at the Land level. Pursuant to the Courts abstract judicial review jurisdic-
tion, the Bavarian government challenged the federal legislation before the
Constitutional Court on the ground that the federation lacked the competence
to regulate the field under Article 74 (1) [19] and that, even accepting the federa-
tions competence to enact the law, the essential prerequisite of Article 72 (2)
had not been met. The Court held that the federation was competent to regu-
late the profession of geriatric nurse under its concurrent legislative authority,
but not the profession of geriatric assistant. The Court then held that the chal-
lenged regulation of geriatric nurses was essential.]

Judgment of the Second Senate. . . .
C. The abstract judicial review petition is admissible. It is well-founded insofar as it
relates to the training of geriatric assistants; otherwise it is not well-founded.
II. The provisions of the Geriatric Care Law concerning the professional training
of geriatric nurses are, pursuant to Article 72 (2) of the basic law, essential to ensure
economic unity in the national interest.
1. In the context of the balance between the federation and the Lnder, special
importance attaches to Article 72 of the Basic Law because it allocates legislative
competences. The provision fits into the general rules governing concurrent legisla-
tion: the Lnder are, in principle, competent to legislate and remain so if the federa-
tion does not act; they regain competence if the federation has ceded back to them
the right to legislate under Article 72 (3) of the Basic Law because the conditions of
Article 72 (2) have subsequently ceased to apply. Only when the federation assumes
responsibility for a matter mentioned in Article 74 or Article 74a of the Basic Law is
that matter excluded from the competence of the Lnder. Article 72 (2) of the Basic
Law, however, limits the competence of the federation and makes it contingent upon
certain material conditions.
The exclusive legislative power of the federation is unrestricted in the context of the
list in Article 73 of the Basic Law. But the subject areas listed in Article 74 of the Basic
Law represent limits upon the federal legislative competence. Article 72 (2) of the Basic
Law forms an additional bar to the exercise of that federal legislative competence.
No legislative discretion free from constitutional judicial review exists in regard
to the requirements of Article 72 (2) of the Basic Law. The provision can do justice to
its position within the scheme of the Basic Law, to its meaning and to the intention of
the framers of the constitution, only if its requirements cannot be subjectively deter-
mined by the entity whose competence it is supposed to limit. For the purpose of re-
stricting the scope of federal legislation to the matters specified in Article 73 et seq. of
134 chapter thr ee
the Basic Law, the Federal Constitutional Court has long stressed that that limita-
tion requires a strict interpretation. . . . In comparable fashion, the requirements of
Article 72 (2) of the Basic Law also must be amenable to judicial review. . . .
[In considering the history of the framing of Article 72 (2) and the intent of the
framers of the 1994 amendment to Article 72 (2) as well as Article 93 (1) [2a], the
Court concluded that the amendments had the objective of strengthening the po-
sition of the states and ensuring effective constitutional judicial review thereof.
The Court explained: In the amendment to the Basic Law a clear instruction to
the Constitutional Court can be seen from the framers of the amendment: the
[C]ourt should revisit its previous case law, which now requires correction.]
4. a. The framers of the constitutional amendment intended that the essentiality
clause of Article 72 (2) of the Basic Law should be made justiciable; no latitude was to
be left to the federal legislature. . . .
b. If the meaning of the provision lies in the protection of the Lnder from further
erosion of their legislative powers, then that protection will be effective only if the
requirement that the legislation be essential is understood as a judicially review-
able restriction. The federal parliament must observe the requirements of Article 72 (2)
of the Basic Law like any other constitutional restraint and must ultimately allow its
enactments to be reviewed by the Federal Constitutional Court with a view to deter-
mining whether it has exceeded its competence.
For the purpose of reviewing the criteria contained in Article 72 (2) of the Basic
Law, a separate constitutional judicial procedure has been introduced in Article 93 (1)
[2a] of the Basic Law. Since that procedure permits review only with respect to Arti-
cle 72 (2) of the Basic Law, that provision would be meaningless if the legal concepts
in Article 72 (2) of the Basic Law were to be understood as nonjusticiable.
c. The version of Article 72 (2) of the Basic Law [that resulted from the 1994 amend-
ment] does away with the words to the extent that a need for regulation by federal
legislation exists. . . . Th is language in the previous version of Article 72 (2) served as
a basis for the provisions nonjusticiability. The amendment, instead, contains the cri-
teria that legislation be essential. Th is change in wording further establishes the
need to depart from the earlier case law of the Federal Constitutional Court.
Priority for the Parliament over the Lnder in the interpretation of the provision or
the exercise of competence cannot be inferred from the wording of the provision; on
the contrary, the right of the Lnder to legislate, which exists in principle (see Article
70 (1) of the Basic Law), may be restricted only under certain factual preconditions.
The scope of judicial review of those factual preconditions depends on their ca-
pacity to be ascertained and the extent of any discretion to be given to the Parliament
in investigating facts and forecasting actual developments.
[Pursuant to Article 72 (2), the federation was not competent to legislate in any
of the fields in its concurrent legislative authority if the legislation was not es-
sential (both as to purpose and scope) to achieving either of two objectives: the
Feder alism 135
establishment of equivalent living conditions throughout the federal territory,
or the maintenance of legal or economic unity. The Court interpreted these
objectives and concluded that regulating the training and certification of geri-
atric nurses, as provided for in the Geriatric Nursing Act, was essential for both
legal and economic unity. The Court outlined the analysis and high standards
to be used in concluding whether these provisions were essential. The Court
fi rst considered the standard for determining if the exercise of federal concur-
rent legislation is essential to achieve equivalent living conditions or economic/
legal unity. The Court then considered the standard for determining if the
extent of the federal legislation is essential.]
Within the structure of competences in the Basic Law, where enactments of the
federation and Lnder are equally capable of fulfi lling constitutional objectives, pri-
macy belongs, in principle, to the Lnder (Article 30 and Article 70 of the Basic Law).
Article 72 (2) of the Basic Law takes this into accounttogether with the require-
ment that federal regulation be essentialand thereby directs the federation toward
the least possible interference with the Lnders authority to legislate. Federal regula-
tion is, therefore, essential only insofar as, without it, the respective objective of
Article 72 (2) of the Basic Law identified by the legislature in a par ticu lar case as the
basis for its action in the specific field to be regulated (either the establishment of
equivalent living conditions or the maintenance of legal or economic unity in the
national interest) cannot, or cannot sufficiently, be achieved. At the same time, a pre-
rogative for draft ing and formulating the statute must remain with the Parliament. If
it has chosen a draft that has both cleared the hurdle of Article 74 (1) of the Basic Law
and is also essential, in terms of its purpose and effect, in order to safeguard the le-
gally protected interests in Article 72 (2) of the Basic Law, parts of the draft can then
be removed for being over-broad only if the draft, in its entirety, and with it the effect
of the statute, is not jeopardized without them.
bb. No federal competence exists if enactments of Land law are sufficient to safe-
guard the legally protected national interests mentioned in Article 72 (2) of the Basic
Law. But not every theoretical possibility of action by the Lnder is sufficient in that
regard. In par ticu lar, the mere possibility of identically worded Land statutes does
not exclude a federal competence. Otherwise, since that possibility theoretically al-
ways exists, the concurrent legislative competence of the federation would be pur-
poseless. The provision does not seek to delimit the federations legislation from that
of the Lnder. The purpose of the federal constitutional system is to open up for the
Lnder independent areas of competence for locally or regionally differentiated
enactments. . . .
c. The review of these requirements is the task of the Federal Constitutional
Court. Insofar as present or past facts need to be ascertained for this purpose, in
order to verify the correctness or completeness of the circumstances cited by the
Parliament, the Court is not subject to any restrictions. For a verdict of unconstitu-
tionality to be reached, however, the statute must be based on a defective assessment
136 chapter thr ee
of facts by the Parliament, meaning that no other, applicable considerations can be
invoked in its justification. . . .
Taken on its own, the fact that future developments are uncertain cannot suffice
to justify allowing the Parliament unfettered discretion. . . . That is because predic-
tive judgements are based on an ascertainment of facts that, for their part, are ame-
nable to examination and evaluation. . . . What is verifiable here, just as with the as-
sessment of present or past factual situations, is, above all, whether the legislature has
based its decision on the most complete investigation possible or whether it has
overlooked relevant facts. In that regard, the requirement for the most complete
investigation possible can reasonably relate only to facts that are material to the par-
ticu lar sphere of regulation. . . . Insofar as the uncertainties of forecasting can be
eliminated by certain empirical data and reliable experiential rules, then any margin
for prediction is excluded. . . .
The Parliament also has a margin for prediction in the determination of future
developments used to assert that the legislation is essential within the meaning of
Article 72 (2) of the Basic Law. If a course of events develops other than expected, in
many cases only the typically predictable risk inherent in every evaluation of com-
plex future developments is realized. Incorrect predictions cannot, ultimately, be
excluded, even when the greatest care is exercised in making them. Therefore, it must
be acknowledged that, within certain limits, the Parliament, which cannot avoid
forecasts, is entitled to take that risk without having to fear an adverse assessment
under constitutional law. . . .
The Constitutional Courts examination of a federal statute by the standard of
Article 72 (2) of the Basic Law must include the following aspects: the forecast must
be based on assumptions of fact that have been carefully established or can at least be
confi rmed in the course of the judicial examination; the forecast must be method-
ologically sustainable by an appropriate forecasting technique and this must have
been followed consistently . . . ; the result of the forecast must be checked to ensure
that the considerations on which the prognostic estimation is based have been dis-
closed with sufficient clarity or that their disclosure is at least possible in judicial
proceedings on the constitutionality of laws, and that no irrelevant considerations
have influenced the forecast.

Geriatric Nursing Act Case: An Addendum. It would not be long before the Court,
using its newly articulated Article 72 (2) analysis, would declare legislation enacted
under color of the federations concurrent legislative authority to be incompatible
with the Basic Law. Th is time, it was the First Senate that acted. In the Dangerous
Dogs Case (2004) federal legislation prohibiting the importation, transportation, and
breeding of particularly dangerous breeds of dogs (including the Pit Bull Terrier,
American Staffordshire Terrier, Staffordshire Bullterrier, Bullterrier, and mixes of
these breeds) was challenged by dog breeders as a violation of the right to occupa-
tional freedom secured by Article 12 of the Basic Law.105 The Court concluded that
Feder alism 137
the law represented a limitation upon occupational freedom, and further concluded
that the law did not constitute a regulation of the practice of a profession as permit-
ted by Article 12 (1) because the federation lacked the competence to legislate in the
field. In par ticu lar, the Bundestag had relied on its concurrent legislative authority
under Article 74 (1) [1] in enacting criminal sanctions for violations of the prohibi-
tion on breeding the listed dogs. Following the standards announced by the Second
Senate in Geriatric Nursing, the Court concluded that the legislation had not satisfied
the essential prerequisite of Article 72 (2).
A month after the decision in Dangerous Dogs, the First Senate shifted the federalist
balance back in the direction of the federation, if only marginally. In the Shop Closing
Act III Case (2004)106 the Court was confronted with a challenge to modifications to
the Shop Closing Act that were enacted in 1996, two years after the 1994 amendments
to the federalism provisions of the Basic Law that introduced the essentiality clause in
Article 72 (2). The Court explained that if it were to employ the standards announced
in Geriatric Nursing, then it would have to fi nd that the 1996 changes to the law were
not essential within the terms of the amended Article 72 (2).
Th is, however, was not the end of the Courts analysis. As part of the 1994 amend-
ments to the Basic Law, Article 125a also had been added, exempting from the terms of
the newly amended Article 72 (2) all federal concurrent and framework legislation on
the books at the time. According to Article 125a these exempted laws remain in force
unless [a] federal law [provides] that [they] may be superseded by Land law.107 The
Court interpreted Article 125a as leaving the authority to modify such grandfathered
legislation exclusively with the federation, unless the federation exercises its discre-
tion to empower the Lnder to create a superseding legal regime. The business hours
established by the 1996 version of the Shop Closing Act, the Court explained, consti-
tuted just such a minor modification squarely within the discretion of the federation
and not the more comprehensive alteration of the fundamental legislative concept of
the Act that would require compliance with Article 72 (2). Unanimous on these feder-
alism matters, the Court was also unanimous in concluding that the Sunday and holi-
day closing requirement in the 1996 version of the Act did not constitute an unconsti-
tutional infringement of occupational freedom and equality.108 The Court was evenly
divided on the same question as regards the Shop Closing Acts Saturday business
hours, permitting those provisions of the law to survive on the strength of Article 15 (3)
of the Federal Constitutional Court Act: If the votes are equal, the Basic Law or other
Federal law cannot be declared to have been infringed.109
The controversy over the authority to liberalize Germanys shopping hours has, in
any event, been resolved in favor of the Lnder by one of the reforms of 2006: Article
74 [(1) [11]], which gives the federation concurrent powers over certain economic ac-
tivities, no longer includes the right to regulate store closing hours, a power favored
strongly by unions and churches (at least as far as Sundays are concerned) but seen by
many others as a good example of overregulation, a considerable burden on retail estab-
lishments, and an inconvenience to German shoppers. By November 2006 some Ln-
der [(e.g., Berlin)] had already acted to liberalize dramatically store opening hours.110
138 chapter thr ee

cooperative federalism

The formal division of legislative authority established by Articles 71 through 74 (and


the former 74a) belies the reality of the high level of integration and collaboration
between the federation and Lnder in making public policy. As Werner Heun remarked:
Although, at the beginning, the Basic Law only very sporadically provided for the
shared completion of tasks, and the case law and literature derived a fundamental
prohibition on mixed administration from the nature of federalism, an intensive . . .
cooperation between federation and Lnder, as well as between separate Lnder,
very quickly developed after 1949.111 Indeed, a number of provisions of the Basic
Law anticipate a kind of federal-state cooperation that is in confl ict with a strict dual
sovereignty theory of federalism.112 For example, Article 75, which was eliminated
by the 2006 federalism reform, provided for federal framework laws that were meant
to be fi lled out by more detailed state legislation. The 1969 amendments to the Basic
Law, including Articles 91a, 91b, and 104a, also opened spheres of shared federal and
Land competences. All of these provisions of the Basic Law were altered in one de-
gree or another by the 2006 federalism reform.
Arthur Gunlicks has argued that cooperation better characterizes German feder-
alism than a dualist ideal of federalism. The theory of cooperative federalism,
Gunlicks explained, was fi rst used to describe the reality of shared [state and fed-
eral] fi nancing and administrative responsibilities that emerged during and after the
New Deal [during American President Franklin Roosevelts administration],113 es-
pecially in response to the growth of the modern welfare state.114 [B]y the 1970s, on
the heels of American President Lyndon Johnsons Great Society program, there
were few [American] government programs that did not involve the federal govern-
ment in some combination with the states and/or local governments.115 The Ger-
man era of cooperative federalism, fueled by underlying and powerful tendencies
towards unitarianism and centralization,116 has resulted in such a thoroughgoing
entanglement of the Lnder and the federation in matters of policy making, fi nancial
affairs, and administration that some constitutional law scholars question whether
todays Germany is really still a federal state at all.

Framework Laws. Prior to the 2006 federalism reform, Article 75 of the Basic Law
authorized the federal government to enact general, or framework, statutes (Rah-
mengesetze) regarding matters traditionally within the states domain but of a nature
requiring federal participation in the interest of more uniform national policy. The
relevant areas of policy included regional planning and water management, the legal
status of the press, and the fi lm industry. Following constitutional amendments ad-
opted in 1969 and 1971, the cooperative responsibility of the federation and Lnder
via framework legislation was extended to include the legal status of persons in the
public ser vice of the Lnder and general principles governing higher education.
State legislation continued to dominate these fields but within preestablished federal
Feder alism 139
guidelines. As with the federations concurrent legislative authority under Article 74,
these federal framework guidelines had to be essential for the achievement of the
goals identified by Article 72.
The Constitutional Court interpreted the framework legislative competence as
having a narrow scope. In the State Water Fees Case (1995) the Court refused to pre-
sume a federal prohibition on state fees for the withdrawal of groundwater where the
relevant federal framework law was silent on the matter.117 The Court reiterated its
prior case law in which it established that framework laws should not be construed
to limit the legislative authority of the Lnder any further than the language of the
framework law makes absolutely necessary. Even the extent to which the language of
the federations framework legislation controlled the details of a regulated matter
proved to be a difficult issue requiring careful judicial consideration. In the North
RhineWestphalia Salaries Case (1954)118 the Court concluded that Land legislation
must fit into the federal framework but must be left free to take account of the par tic-
u lar conditions of the state concerned; that the federal framework provisions need
not be restricted to fundamental principles yet must not exceed their declared pur-
pose of forming a boundary for discretionary regulation by the Lnder nor confi ne
the latter to a choice between predetermined legal alternatives.119 If, however, the
matter regulated is one in which there was a strong and legitimate interest in national
uniformity, then federal legislation could provide the details with respect to that
matter, assuming, of course, that the matter falls within the federations framework
authority.120
In the Junior Professor Case the Second Senate ruled, in a 53 decision, that the
Fift h Act for the Amendment of the Higher Education Framework Law was incom-
patible with the framework legislative competence provisions of Article 75 (1) [1a] and
the requirement of Article 72 (2) that the legislation be essential. Once again engag-
ing the highly sensitive federalism issue of education policy, the Court extended the
states rights jurisprudence of the Geriatric Nursing Act Case (2002; no. 3.10) to its
interpretation of the federations framework legislative competence. In so doing, it
seems likely that it precipitated the demise of framework legislation in the 2006 fed-
eralism reform.121

3.11 Junior Professor Case (2004)


111 BVerfGE 226
[The 2002 law sought a comprehensive reform of the qualifications and pay-
ment of academics and researchers. In pushing for the reform, the newly elected
spd-Green coalition government argued that Germanys once-vaunted post-
secondary institutions were losing ground in an increasingly globalized market
for academics. The creation of the rank of junior professor as an introductory
academic position was intended to shorten the length of time needed for entry
into the academy, and this was to be coupled with a new, more flexible and com-
petitive compensation scheme across all academic positions. The three Lnder
140 chapter thr ee
governed at the time by the cdu or csu brought an abstract judicial review ac-
tion to challenge the federal legislation as an intrusion on the states compe-
tence over education policy. The Court agreed.]

Judgment of the Second Senate. . . .
B. . . . The Fift h Act for the Amendment of the Higher Education Framework Law
and other Regulations, enacted on 16 February 2002, is incompatible with Article 70,
and Article 75 in connection with Article 72 (2), and is therefore void.
II. 2. The essential (as emphasized by the Parliament) element of the challenged
law concerning the qualification and installment of professors, exceeded the accept-
able framework for federal legislative authority over higher education.
In terms of their nature and scope, the provisions on the junior professorship form
the essential element of the legislative project. They contain detailed rules that leave
the legislatures of the Lnder scope only for secondary enactments. The Lnder are
required to adopt a staff structure thatwith some minor exceptionsprecludes
any alternatives. The Parliament fails to appreciate that the competence to enact frame-
work legislation does not allow it the same political scope of action as the other legisla-
tive competences.
a. In the view of the federal government, the provisions in the Fift h Act for the
Amendment of the Higher Education Framework Law leave the Lnder sufficient
scope to build on the federal legislative framework. Th is also applies to the central
conceptual and normative element of the higher education reform since the Lnder
are given the scope to defi ne the actual conditions of employment for academic uni-
versity staff and to organize the employment relations governed by civil ser vice law
in more detail. As the Federal Government rightly pointed out in the judicial pro-
ceedings on the constitutionality of the statute, it is essentially left up to the Lnder
themselves to decide on the introduction of internal appointments, the rules govern-
ing advertising for vacancies, teaching loads, the funding and material resourcing of
the junior professorship, and its relationship to the tenured professorship.
But that sphere of regulation is marginal and of no consequence in light of the
high degree of regulation in 44 to 48 of the Higher Education Framework Law.
The provisions concerning the junior professorship form an exhaustive set of opera-
tional rules covering all the essential elements; they predetermine the central con-
cept of the junior professorship and, at most, allow the Land parliaments scope for
minor additions, but no scope of substantial significance for enactments of their
own. The Parliament has failed to show regard for the fact that it was the intention of
the framers of the constitution and the constitutional amendment that the Lnder
should retain substantial legislative scope in respect of higher education. . . .
b. The institution of the junior professorship is prescribed, according to the legisla-
tive concept of the Fift h Amendment Act, not as an offer of one of several possible
paths to qualification, but as an obligatory standard qualification. The Lnder are, thus,
Feder alism 141
not allowed to organize this central area of higher education independently. The Ln-
der are forced down the mandatory path of the new means of access to the professor-
ship. Since so little room remains at the very heart of the reform projectthe introduc-
tion of the junior professorshipfor decisions under Land law, it is no longer possible
to assume that this is an enactment of provisions on the general principles respecting
higher education within the meaning of Article 75 (1) [1] {1a} of the Basic Law. . . .
4. Moreover, the provisions on the junior professorship are not justified by a ne-
cessity for uniform federal legislation, as required by Article 72 (2) of the Basic Law.
a. The federations legislative aim, which is to shorten the path to qualification for
the rising generation of academics and to promote their independence, proves neither
the necessity of the provisions for the establishment of equivalent living conditions
nor their necessity for the maintenance of legal unity. A federal statute is necessary
within the meaning of Article 72 (2) of the Basic Law if a critical situation arises pre-
cisely as a result of differing laws in the Lnder. That would be the case, for example, if
living conditions were to follow unacceptably divergent trends as between the Lnder
or if a change of job from one Land to another were made significantly more difficult
or even virtually impossible. Such critical situations are neither pleaded by the federa-
tion nor evident. The provisions in question also are not necessary for the mainte-
nance of legal unity. No fragmentation in the law of higher education and higher edu-
cation ser vice regulations had been complained of at the time of the adoption of the
Fift h Amendment Act; the personal mobility of academics at German universities is
moreover guaranteed.
b. The change in the staff structure mandated by the Fift h Amendment Act could
at best be justified under the objective of maintaining economic unity. But from this
point of view, the prerequisites for federal legislative competence also are absent. . . .
In any event the Parliament has not furnished any persuasive arguments that, as a
result of divergent provisions on access in the individual Lnder, an unsatisfactory
state of affairs can be expected to arise that federal legislation alone can address. The
fact that the junior professorship model of reform may not prevail as superior in a
competition with other conditions of eligibility does not establish the necessity of
such an enactment.

The Sixth Act for the Amendment of the Higher Education Framework Law (2002) met
a similar fate. Again invoking its framework legislative authority under Article 75 (1)
[1] {1a}, the federation enacted legislation that sought to mandate Germanys tradition
of tuition-free higher education in the face of attempts by a handful of conservative
state governments to experiment with tuition in their state-run universities. The leg-
islation would have guaranteed that studies leading to a fi rst degree, and that con-
secutive studies leading to a second degree, remain tuition-free. In the Tuition Case
(2005)122 the Second Senate ruled that the law confl icted with the constitution,
demonstrating that the practice of providing free higher education to all was in need
of reform amidst growing anxiety that German universities have gone far adrift of
142 chapter thr ee
the international preeminence they once enjoyed. The Court found that the federal
tuition regulation was within the federations competence to broadly regulate gen-
eral principles concerning the nature of higher education, even while noting that in
the field of higher education the federation is obliged to observe exceptional restraint
in the exercise of its legislative authority. But the Court concluded that the legisla-
tion was not essential for either the establishment of equivalent living conditions or
for the maintenance of legal or economic unity (Article 72 (2)). The federations
justifications for the legislation failed to satisfy the standards set by the Court in the
Geriatric Nursing Act Case (2002; no. 3.10). The Court dismissed as unfounded or in-
adequately supported the federations arguments that enrollments would decline
and students would flood no-tuition or low-tuition universities if tuition schemes
were instituted by the Lnder. Costs, the Court noted, are only one of a complex mix
of interests and values that inform a students selection of a university. The Court
went so far as to suggest that students might prefer the improved quality in program-
ming and ser vices a university could provide as a result of securing additional fund-
ing from tuition schemes. On the one hand, conservative-led governments in Ba-
varia, Hamburg, Hesse, and Lower Saxony have taken the lead in instituting tuition
schemes at their universities, none amounting to more than 500 per semester. On
the other hand, politicians on the left, loudly bolstered by student groups, have de-
cried tuition fees as contrary to Germanys commitment to social justice.
With the elimination of Article 75 in the 2006 federalism reform, at least one sub-
ject previously covered by the federations framework legislative competence was
added to the federations exclusive legislative competence under Article 73 (protec-
tion of German cultural artifacts). Other subjects previously covered by Article 75
were reassigned to the concurrent legislative competence under Article 74.

Joint Tasks. Articles 91a and 91b1969 amendments to the Basic Lawdefi ne areas
of public policy making and fi nancing for which the federation and states shall be
jointly responsible. Article 91a authorized the federation to help the Lnder carry out
certain duties in the fields of higher education, regional economic planning, and
coastal preservation. Article 91b, adopted with the intention of providing a response
to West Germanys education crisis,123 permitted joint cooperation, pursuant to
agreements, in educational planning, the promotion of research institutions, and
projects of supraregional importance.
Criticism of and official proposals to abolish the provisions have dogged Articles
91a and 91b but the Court has had little to say about the scope of these joint tasks
(Gemeinschaftsaufgaben).124 The federation participates in these tasks, provided the
Bundesrat consents, and as long as the community as a whole is implicated and the fed-
eral role is necessary to improve living conditions. Werner Heun concluded that these
prerequisites are so vague and undefi ned that review by the Federal Constitutional
Court is feasible only in a limited sphere and, thus, judicial review hardly represents
an effective limitation.125 Still, the joint task provisions have received some scrutiny
from the Court. In Geriatric Nursing the Second Senate distinguished the strict stan-
Feder alism 143
dard for essential federal legislation under Article 72 (2) from the necessity re-
quirement of Article 91a. Article 72 (2) is not satisfied, the Court explained, merely
because the federation can argue that the challenged concurrent legislation might
lead to improvements in the equivalence of living conditions or the maintenance of
legal or economic unity across the country. Th is milder form of necessity, however, is
all that is required by Article 91a (1). According to the Court, had the framers of Ar-
ticle 72 (2) wanted the essential requirement to be satisfied by merely any kind of
improvement in the equality of living conditions or maintenance of legal or economic
unity, they would have employed the language of Article 91a (1).
Besides providing a sphere of federal-state cooperation, Articles 91a and 91b also
sought to resolve rising concern about federal intrusion upon Land independence
that had been fueled by increasing federal subsidization of state-based governance by
means of federal grants. In this cause, Article 104a, which was added to the Basic
Law as part of the 1969 reform, worked with Articles 91a and 91b to put an end to the
uncontrolled growth of federal grants126 by clearly enumerating those circum-
stances in which the federation can assert direct fi nancial influence over Land policy.
The 2006 federalism reform removed the references to joint federal-state tasks
in higher education that had been found in Articles 91a and 91b. Article 104a was
amended with a new 4 to require Bundesrat approval of federal laws that involve
Land administration as well as Land funds.127 The previous Article 104a (4) was re-
cast as a new Article 104b, which aims to resolve the criticism that the federations
grants-in-aid served as a Trojan horse through which the federation extended its in-
fluence in matters reserved to the Lnder. Th is criticism is easily recognizable by
those familiar with concerns over expansive and intrusive congressional exercise of
federal tax and spending authority in the U.S. constitutional scheme.128 Article 104b
confi nes the German federations influence by limiting the reach of federal grants-
in-aid [by] placing time limits on the grants and requiring periodic reviews, and in
requiring that the aid granted be reduced in stages over time.129

implementation of federal law

German federalism balances the federations legislative priority with the states right
to execute federal law as matters of their own concern (i.e., in their own right) un-
less the Basic Law specifies otherwise (Article 83). Land governments, as was noted
earlier in this chapter, delegate the implementation of most laws (federal and Land)
to still lower levels of administration.130 Thus, Land and local governments predomi-
nate in the field of public administration because they establish and operate nearly all
of the countrys administrative agencies. As a consequence, the Lnder are primarily
responsible for putting into force most rules and regulations pertaining to the train-
ing and employment of civil servants. Incongruously, federal law controls the gen-
eral legal status of civil servants, including their classification, educational qualifi-
cations, and salaries.131 Demonstrating the breadth of the 2006 federalism reform,
144 chapter thr ee
this long-criticized dissonance in administrative law and policy also was corrected.
Article 74a was deleted in the 2006 federalism reform and the provisions of the Basic
Law addressing the status and duties of civil servants (Beamten) of the Lnder, local
governments, and other public corporations were transferred to Article 74, which
provides for the federations concurrent legislative competence. Salaries and benefits
for public employees in the Lnder and local governments, however, are now the re-
sponsibility of the Lnder.
Th is was not the only change in Germanys administrative federalism wrought by
the 2006 federalism reform. One of the chief aims of the reform was to have the Ln-
der surrender some of the lawmaking competence they had acquired through the
expanded veto authority of the Bundesrat. In light of their responsibility for adminis-
tering law, this could be expected to have the ancillary effect of exposing the Lnder
to administrative obligations for which they had little or no legislative responsibility.
A way out of this difficulty had to be found in addition to the compromises that made
possible the centralizing reform of the vertical division of legislative authority (Arti-
cles 70 to 74). The solution was to amend Article 84, which maintains the states pri-
ority in establishing administrative agencies and procedures. But the new Article 84
goes further, providing the right of a Land government to enact deviating legisla-
tion if federal law touches upon the administration of the law. Article 84 protects the
states interest in administration against the federations stubborn insistence upon a
federal regime by requiring Bundesrat approval of a law providing for the federal
regulation of procedures.132
These changes were intended to bring coherence and accountability to federal-
state relations in administrative matters. But the federation and the Lnder do not
participate in this administrative symbiosis in every instance. While limited in num-
ber, exclusive federal administrative structures exist in those areas of the federations
exclusive legislative competence (Article 73) and in matters in which the Basic Law
expressly provides for direct federal administration. Under constitutional amendments
adopted in 1993, these matters include foreign affairs, federal financial administration,
waterways and shipping, and the armed ser vices (Article 86). In addition, autono-
mous and self-governing federal agencies administer certain insurance programs
(e.g., health plans, accident insurance, and pension funds). Under Article 87 (2), these
programs are administered as federal corporate bodies if their sphere of compe-
tence extends beyond the territory of one Land. Federal-state confl icts occasionally
arise under this and related provisions of the Basic Law when these federal agencies
receive mandates under federal law that are alleged to interfere with the day-to-day
operations of analogous Land agencies.133 The prevailing view among constitutional
commentators, cited approvingly in the Chimney Sweep II Case (1983), is that the
spheres of federal and Land administration are to remain organizationally separate
and independent.134
The federations exclusive administrative competence aside, federal-state relations
in the administration of the law is complex. The federal government, for example, is
authorized to supervise the administration of federal law and, with the Bundesrats
consent, even to issue directives to Land agencies. Kalkar II is a landmark case in-
Feder alism 145
volving a clash between federal and Land administrative orders; the case draws at-
tention to the Basic Laws distinction between two forms of Land administration.
Under Article 84 the Lnder are empowered to implement federal laws as a matter
of their own concern, in accord with their own procedures, and through their own
agencies unless otherwise provided by law and requiring the Bundesrats consent.
Here the line between federal legislation and Land administration is clear. Article 85,
however, provides for a unique administrative mechanism referred to as Lnder
administration by federal commission, pursuant to which the Lnder are empow-
ered to administer federal law as agents of the federal government. They act as the
federations agents when, with respect to a given subject matter, the Basic Law so de-
clares or when the regulated matter is subject to more immediate federal control.
Inthis situation, Article 85 (3) authorizes the highest federal official in charge of
the regulated matter to issue directives to the highest corresponding Land official.
Kalkar II dealt with the extent of the federations authority under Article 85 (3). The
Court resolved the dispute in favor of the federal minister but admonished the fed-
eration to observe the principle of comity in laying down procedures to be carried
out at the local level.

3.12 Kalkar II Case (1990)


81 BVerfGE 310
[Pursuant to the federations concurrent authority over the production of nu-
clear energy the Parliament enacted the Federal Nuclear Energy Act, which,
among other things, regulates licensing procedures for the construction of fast-
breeder reactors. (Article 87c declares that nuclear energy laws may be admin-
istered by the Lnder for the federation with the Bundesrats consent.) Such a
reactor had been under construction in Kalkar since the early 1970s. (A related
decision, the Kalkar I Case [1978; no. 4.6], involved an earlier controversy arising
from the decision to build the reactor.) Prompted by the nuclear disaster at the
Soviet Unions fast-breeder reactor in Chernobyl in 1986, North Rhine
Westphalias minister in charge of technology ordered a reassessment of the
plans for the reactors safety system before permitting the installation of the
reactor core. The federal minister in charge of environmental matters issued a
contrary directive based on an earlier report that all safety measures had been
met. The Land government, appealing to the Federal Constitutional Court,
charged that the federal directive was beyond the competence of the national
government. The Court disagreed.]

Judgment of the Second Senate. . . .
C. The application is unfounded.
The federal directive is legally valid under Article 85 (3) of the Basic Law. It relates
to the licensing procedure under 7 of the Nuclear Energy Act . . . and implicates the
146 chapter thr ee
authority of the Lnder to execute federal laws as agents of the federation. As a proce-
dural order, the federal directive is permissible under Article 85.
3. . . . Objectively . . . the federal order complies with the conditions of and restric-
tions on federal competence under Article 85 (3). The order did not violate the prin-
ciple of comity.
I. Article 83 empowers the Lnder to enforce federal laws unless otherwise speci-
fied in the Basic Law. In principle, the Lnder administer federal laws as matters of
their own concern (Articles 83 and 84). The Lnder are also empowered to act as
agents of the federation in certain designated matters (Article 85 (1)).
1. The administrative agency in question here is a form of Land administration.
The Lnder exercise their own authority as such, and their administrative agencies
act as their organs, and not as organs of the federation. Th is view is supported by the
language of Article 85 (1), as well as the distribution of powers in Part VIII of the
Basic Law, which distinguishes two forms of Land administration; namely, when the
Lnder execute federal laws in their own right and when they serve as agents of the
federation, [i.e., when they derive their authority] from the federations administra-
tive power (Article 86). The debates in the Parliamentary Council also proceeded on
the assumption that Land and federal governments would serve as equals in admin-
istrative matters and that Land and federal agencies would be kept separate.
Admittedly, the autonomy of the Lnder in administrative matters is substantially
restricted. Where the Lnder execute federal laws in their own right the federal govern-
ment exercises a supervisory power to ensure legal conformity with federal law and has
the right to issue individual instructions in particular cases where it is permitted by
federal statute (Article 84 (5)). The federal government has broad powers to intervene
in the functioning of administrative agencies. Its supervisory power extends to ensur-
ing the lawfulness and appropriateness of administration, for which purpose the fed-
eral government may require the Lnder to submit documents for inspection and
dispatch representatives to the Land administrative agency. Most important, the direc-
tives of a Land agency are subordinate to those of the federal authority; accordingly, the
latter must be executed by the highest Land authority . . . (Article 85 (3)).
It follows that the administrative competence of the Lnder is limited by the origi-
nal distribution of competences to each level of government. The Lnder retain ex-
clusive authority in the administration of their functions as against third parties;
Article 85 of the Basic Law does not contemplate a federal right to interfere with this
power. But this is not the case with respect to substantive decision making. Although
this power resides primarily in the Lnder, the federal government can vest this
power in itself by exercising its power to issue orders. Th is exercise is not limited to
exceptional cases and does not require justification. Article 85 (3) of the Basic Law
contemplates this as a normal means of settling differences, such that the federal vi-
sion of the common good may prevail. The power of the Lnder to make substantive
decisions is limited only by the reservation of rights at the federal level.
The legislative history of Article 85 (3) supports this view. According to the re-
porting committee of the Parliamentary Council, Land administrative agencies were
Feder alism 147
to be subordinate to the will of the highest responsible federal agency. . . . Accordingly,
a federal directive to a Land agency discharging functions within its competence is
invalid only when the directive . . . is unconstitutionally issued. . . .
II. . . . 2. Article 85 (3) of the Basic Law places additional legal restrictions on the
federal power to issue directives. These restrictions relate to the nature of the direc-
tives and the substantive decision-making authority on which they are based. The
order must precisely defi ne the respective spheres of federal and state competence.
The subordinate agency must be able to recognize that it is the recipient of an order,
and that certain standards will apply to certain administrative processes. The order
must be drafted such that the recipient is able to make objective sense of it, using all
the potential sources of technical and legal knowledge available in a fully equipped
Land agency. In this context, previous communication with the superior federal
authority may be of significance. The requirement of precision does not prohibit the
use of concepts whose realization requires a judgment call. Th is is not contrary to a
directional order.
3. When issuing orders, the federal government is bound by the principle of co-
mity. Certain conditions and restrictions for the execution of competences can be
derived from this. In the German federal state the entire constitutional relation-
ship between the federation and its member states is guided by the unwritten con-
stitutional principle of comity; that is, the federal government and the Lnder
must act in a manner that promotes the interests of the federation as a whole. Th is
duty requires that, in exercising their functions, the federation and the Lnder rea-
sonably consider the overall interests of the federation and the concerns of the
Lnder. The federal government does not violate its duty solely by executing a con-
stitutionally assigned competence. Rather, it can be deduced from the principle
that the exercise must be abusive or in violation of procedural requirements. The
further conclusions that can be drawn from this principle can be determined only
in individual cases. . . .
III. 1. According to this interpretation of Article 85 (3) of the Basic Law, the peti-
tioning Land cannot proceed with its submission that the federal directive was in-
compatible with 7 (2) or with the licensing procedures of the Nuclear Energy Act;
or that it incorrectly assessed the effect of linking individual permits; or that it
misconstrued the content of the prior positive assessments of the whole project. The
Land cannot argue that the order restricts its execution of the constitutional duty to
protect the life and health of its citizens under Article 2 (2) of the Basic Law. The ex-
ecution and fulfi llment of this duty lie solely with the federal government, insofar as
it issues an order within its competence. . . .
2. The order complies with the constitutional conditions and restrictions placed
on the competence to issue orders under Article 85 (3). The content is procedural, as
it draws the Land ministers attention to legal opinions about the protection of prop-
erty for which permits were already issued and about the collective effect of prior
positive assessments. Taking the events at Chernobyl into consideration, the order
annuls the previous standards of evaluation and the previous plans for the safety sys-
148 chapter thr ee
tem of the reactor by raising the possibility of another expert report, thereby deviat-
ing from the position of the Reactor Safety Committee on 15 April 1987.
3. a. Contrary to the perspective of the petitioning Land, the fulfi llment of Land
duties in the area of disaster prevention is not affected by this order. The order does
not forbid the Land to commission a report addressing the issue of disaster preven-
tion (e.g., emergency shelters).
b. Further, the order satisfies the requirement of precision. . . .
4. In issuing this order, the federal government has also fulfi lled the principle of
comity. The Constitutional Court must assess not only the order, but the actions that
preceded it. It is not a question whether the federal government did everything re-
quired by the principle of comity to avoid any misunderstanding on the part of the
Land after issuing the order, or whether the Land for its part did everything reason-
ably required to understand the content of the order.

Extending Kalkar II. In the Biblis-A Case (2002),135 another decision involving a
clash over state and federal administration of nuclear energy policy, the Second Sen-
ate again acknowledged the federations administrative will in cases where Land ad-
ministration is authorized by the federation (Article 85). In Kalkar II the Court held
that [t]he Lnder retain exclusive authority in the administration of their functions
as against third parties. . . .136 In Biblis-A the Court narrowed the scope of this state-
based administrative competence.
Following decades of controversy, including Hesses persistent refusal to adminis-
tratively certify the safety of the nuclear power plant known as Biblis-A, a change of
government in Hesse in 1999 (from a center-left coalition to a center-right coalition)
broke the logjam. The new Land governments efforts coincided, however, with in-
creased concern for nuclear safety on the federal level, which also reflected a change
in government from a center-right coalition to a center-left coalition. The Federal
Ministry of the Environment complained about numerous deficits in the draft per-
mits prepared by the state and ordered Hesse to grant permits certifying the ade-
quacy of safety modifications to Biblis-A only after federal supervisory approval.
Meanwhile, as part of the new federal governments broader efforts to shape energy
policy, representatives of the federal government and the energy supply industry (in-
cluding the operator of the Biblis-A plant) signed the so-called atomic consensus. Its
appendices contained agreed-upon conditions for the operation of Biblis-A, includ-
ing the following passage: Before the end of August 2000, the federal ministry will
determine measures about the acceleration of the permit procedure vis--vis the
Hesse board of control; this will include a structuring of the process and a defi nition
of the standards of evaluation. The Hesse government, the apparent administrative
authority concerned with the plant, at least with respect to policy-making implicat-
ing third parties like the operator of Biblis-A, was not a party to the atomic consensus
agreement and did not attend subsequent meetings between the plants operator and
the Federal Ministry of the Environment at which the terms of operational certifica-
Feder alism 149
tion for Biblis-A were concluded. Hesse challenged the federal governments actions
as an encroachment on its administrative sovereignty and brought the matter to
the Constitutional Court.
The Constitutional Court dismissed Hesses petition on its merits. Speaking fi rst
to the question of state administrative competence, the Court reconfi rmed that,
within the scope of Lnder administration by federal commission (Article 85), Land
governments possess the inalienable and exclusive right to execute all administra-
tive measures with external effects. But, having held in Kalkar II that the power to
make substantive administrative policy can be claimed by the federal government
at any time, the Court concluded that once the federal government has expressly or
implicitly exercised this authority, it may have direct external dealings with third
parties in order to prepare for the exercise of this power. Such external dealings,
the Court explained, may also include informal negotiations and agreements of the
kind associated with the atomic consensus. The Court explained that the admin-
istrative sovereignty of the Land would be violated in such circumstances only if
the federal government were to engage in legally binding activities vis--vis third
parties or issue statements that approximate a legally binding decision. Th is was not
the case with respect to the federal governments dealings with the operator of
Biblis-A.
Second, the Court addressed the question of comity, especially in respect to the
federal governments exclusion of Hesse from the atomic consensus negotiations.
The Court ruled that Hesses administrative competence in the case was limited to the
nuclear power plant, which the Court viewed as wholly distinct from the federal gov-
ernments pursuit of its broader energy policy by way of the atomic consensus. The
Court found that comity had not been jeopardized by the federal governments failure
to notify and actively pursue Hesses participation in the formation of that policy, even
as that effort incidentally affected the Biblis-A plant. The Court concluded that, in any
event, the states interests in its administrative competences were adequately pro-
tected. Hesse had been notified of the federal governments engagement with the
matter through the federal exercise of its power to direct substantive administrative
policy and through media coverage of the federal governments efforts regarding en-
ergy policy. The Land also enjoys the effective procedural protections elaborated in
Kalkar II, which must be observed before the federal government can issue an adminis-
trative instruction under Article 85 of the Basic Law. There is no protected Land inter-
est, however, if the federal government activities involve only the informal measures
that inform the federal governments preparation of an administrative instruction,
especially where the informal activity of the federal government is as far removed
from the concrete administrative procedure as it was in this case.
Justices Di Fabio and Mellinghoff dissented, arguing that the federal governments
interactions with the external operator of the Biblis-A plant, with their real, if ostensi-
bly informal and incidental effects, interfered with Hesses administrative compe-
tence in violation of Articles 30 and 85 of the Basic Law. At the very least, the dis-
senting justices argued, the federal government should have been found to have
150 chapter thr ee
violated the principle of federal comity by failing to inform Hesse about its plans in
an appropriate and timely manner and thus denying the Land an opportunity to be
heard.
These cases suggest that nuclear energy was a contentious issue in Germany. In
fact, as one of the most divisive social and political questions for several generations,
nuclear energy reached the Court in a number of constitutional guises.137 For exam-
ple, nuclear energy also was the backdrop to the seminal Brokdorf Demonstration
Case (1985), which we discuss at length in Chapter 8.138 The wrangling over the
Kalkar nuclear energy plant eventually led authorities to shutter the project before
the core reactor was inserted. After nearly dm 7 billion in investment, Kalkar never
generated a single watt of energy. The Biblis-A facility also has been switched off. As
a result of the global anxiety over nuclear power that was stirred by the 2011 tsunami
disaster in Fukushima, Japan, the conservative-liberal government of Chancellor
Angela Merkel ordered a temporary halt to the production of nuclear energy in Ger-
many. Ostensibly, this was to permit safety inspections of the entire network of nu-
clear plants. But the Biblis-A plant was never restarted. On 30 May 2011 the federal
government announced plans to abandon all nuclear energy production in Germany
by 2022, seemingly closing this tumultuous chapter in German political and consti-
tutional life.

conclusion

The issues and materials discussed in this chapter underscore the fluidity in the con-
stitutional politics of German federalism. The Basic Laws complex system of federal-
state relations, including its detailed provisions on the administration of federal law
by the Lnder and the apportionment of tax revenue between levels of government,
also reveals the extent to which government process is subject to constitutional con-
straints. At the same time, the 2006 federalism reform demonstrates the degree to
which political pressure influences constitutional decision making. The next chapter
details how a similar, if more stable, framework of legality engirds the principle of
separated powers.
The cases featured in this chapter provided the Court with opportunities to per-
petuate its vision of the political order created by the Basic Law. Although fi rmly up-
holding the principle of federal supremacy in those areas of public policy expressly
committed to the federal government, this vision also includes a critical and autono-
mous role for the individual Lnder. For one thing, the Court has tended to construe
strictly the long list of concurrent powers granted to the federation under Article 74,
probably because a broad construction of these powers would virtually eliminate the
Lnder as effective units of the federal system. For another, the Court has invoked
the principle of comity to impose a variety of obligations on both federal and Land
governments in their relations with each other. With the Finance Equalization III
and the Geriatric Nursing Act cases, the Court signaled its sympathy for a more de-
Feder alism 151
fi ned role for the Lnder in Germanys governance, a position seemingly in line with
the political will in the country at the beginning of the new millennium, at least as
reflected in the changes produced by the 2006 federalism reform. Finally, in all these
decisions the Federal Constitutional Court showed no modesty in intervening to
judicially arbitrate the Basic Laws scheme of federal-state relations.
4
Separation of Powers

The principle of separation of powers fi nds its clearest expression in Article 20 (2)
of the Basic Law (Grundgesetz), which declares that all state authority (Staatsge-
walt) . . . shall be exercised . . . by specific legislative, executive, and judicial organs.1
The Federal Constitutional Court (Bundesverfassungsgericht), however, recognizes
that this principle cannot be realized in pure form. Separation of powers is, rather, a
system of reciprocal controls marked by numerous checks and balances.2 German
constitution makers believed that they could secure liberty and avoid oppressive
government by setting up a system of shared powers similar to constitutional ar-
rangements in the United States. In their view, political power was implicitly dis-
persed by the Basic Laws version of the constitutional state principle (Rechtsstaat).3
Separation of powers in the Federal Republic is unlike the division of authority
among the branches of the U.S. government. For one thing, the German variant of
separated powers is linked with issues of federalism, a linkage born of the federations
preeminence in the field of legislation and the federal states (Lnders) preeminence in
the field of public administration. As a result, executive-legislative conflicts often re-
solve themselves into disputes between federal lawmakers and Land bureaucracies.
Federal-Land conflicts, therefore, also implicate the principle of separation of powers.
At the federal level, the Basic Law disperses authority within and among several
institutions, or branches of government, that are distinctive to Germanys parliamen-
tary system. Executive authority is divided between the federal president (Bundes-
prsident) and the federal government (Bundesregierung), the latter consisting of
the federal chancellor (Bundeskanzler) and his or her cabinet. The Basic Law vests
legislative authority in the Parliament (Bundestag), authority sometimes exercised
in cooperation with the Federal Council of States (Bundesrat). At the same time, the
Basic Law confers independent rights on certain federal institutions.4 These five
institutionsfederal government (chancellor and cabinet), president, Bundestag,
Bundesrat, and Federal Constitutional Courtare the Federal Republics highest
constitutional organs. The Constitutional Court is primus inter pares among these
federal organs because it has the authority to defi ne the others institutional rights and
duties when resolving confl icts between them. Such disputes arrive at the Court in
the form of Organstreit proceedings,5 the German equivalent of a confl ict based on
separation of powers in the United States.
Yet when German constitutional scholars speak and write about separation of
powers, they have more in mind than the technical formalities of an Organstreit pro-
ceeding. They often see separation of powers in terms of a creative tension between
the Parliament and the federal government, a view anchored in the Basic Law itself.
Separ ation of Powers 153
Parliament elects the chancellor (Article 63), but the chancellor is responsible for set-
ting the general policy guidelines of the federal government (Article 65). In addi-
tion, the constructive vote of no confidence (Article 67) reinforces the chancellors
independence as a political leader. Indeed, Konrad Adenauers strong leadership
during the Federal Republics fi rst decade led many commentators to describe the
new German polity as a chancellor democracy.6
Ideally, under this system, a legislature made up of representatives of the whole
people, not bound by orders and instructions (Article 38) constitutes the check nec-
essary to control and discipline the chancellor. The unamendable principle of sepa-
rated powers (Gewaltenteilung) combines with the equally entrenched principles of
popular sovereignty (Volkssouvernitt) and executive responsibility (Verant-
wortlichkeit der Regierung) to produce an accountable government marked by
democratic legitimacy. But, as one commentator noted, in practice this required
separation of power between the government and Parliament no longer exists in the
face of the [development] of [Germanys] party democracy.7 The increasing impor-
tance of political parties in the creation and election of a par ticu lar government or
governing coalition has prompted constitutional theorists to highlight the impor-
tance of the opposition in Parliament rather than the opposition of Parliament as the
most effective check on the executive branch.8 Perhaps this is why the Federal Con-
stitutional Court ranks the principles of multiparty democracy (Mehrparteien-
prinzip), equality of parties (Chancengleichheit der Parteien), and the right of op-
position (Recht auf Opposition) as equal to those of popu lar government, executive
responsibility, and separation of powers.

executive-legislative relations

The Basic Structure of Separated Powers. As in other parliamentary systems, the


Bundestag chooses the head of the government (Article 63), who in turn is responsi-
ble to the legislature. Federal ministers, however, owe their primary allegiance to the
chancellor. He or she effectively appointsand dismissesthem (Article 64) and
establishes the general policies within which they are constitutionally obligated to
manage their respective portfolios. Within these limits cabinet officials conduct their
departmental affairs autonomously and on [their] own responsibility (Article 65).
The cabinet as a whole resolves policy disagreements between federal ministers
(Article 65). The Basic Law, fi nally, does not insist on separating legislative and execu-
tive personnel. Constitutional practice in Germany allows the chancellor and members
of his or her cabinet, not to mention administrative officials of lesser rank, to hold
seats in Parliament. By the same token, certain members of parliament, in their capac-
ity as parliamentary state secretaries, serve as officials within the federal ministries.9

Lawmaking. The large majority of legislative proposals in Germany are bills pro-
posed by the federal government. The government must submit such bills to the
154 chapter four
Bundesrat before transmitting them to the Bundestag. In the less frequent event that
a bill originates in the Bundesrat, it later arrives before the Bundestag by way of the
federal government, whose views fi rst must be solicited. Legislation is therefore gen-
erally the product of a broad consensus reached by these three institutions.10 Consti-
tutional confl icts among these institutions, as exemplified by the Bundesrat Case
(1975; no. 3.6), seldom arise. After the Bundestag passes legislation, either the chan-
cellor or the appropriate federal minister must countersign it (Article 82). A president
could, according to some authorities, refuse to promulgate a statute he or she regards
as unconstitutional, but such an action could trigger impeachment proceedings
against the president. The validity of those proceedings would, in turn, have to be
resolved by the Federal Constitutional Court. More likely, however, the legislative
bodies would simply lodge a challenge to the presidents obstinacy with the Court.11

Vote of No Confidence and the Power of Dissolution. The Basic Laws scheme of
separated powers involves a system of checks and balances rare among parliamen-
tary democracies and considerably at variance with the volatility permitted by the
Weimar Constitution of 1919. In contrast to the Weimar Constitution, the Basic Law
makes governmental stability a chief aim of the systems separation of powers. To
that end, the chancellor holds a more secure position in the Federal Republics gov-
erning system. The Basic Law provides for a vote of confidence in only two situa-
tions. First, Parliament may initiate the procedure pursuant to Article 67, but a vote
of no confidence is insufficient to drive a chancellor out of office. Parliament may re-
move the chancellor under this provision only when a majority of its members simul-
taneously elects a successor, a procedure commonly known as a constructive vote
of no confidence. Second, Article 68 allows the chancellor to initiate a vote of confi-
dence and to authorize him or her, if the vote shows a lack of confidence, to request
the president to dissolve Parliament and call for new elections. The decision to dis-
solve is the presidents alone, and he or she may decline the chancellors request if it
seems that the motion to dissolve Parliament was little more than a political scheme
on the part of the majority coalition to shore up its position by holding a new federal
election.
The constructive vote of no confidence and the inability of the chancellor alone
to dissolve Parliament appears to have achieved a good measure of political stability
in Germany. Since 1949 the constructive vote of no confidence has succeeded only
once, in 1982, when the Bundestag voted Helmut Schmidt out of office after the Free
Democratic Party (fdp) withdrew from the coalition government. A new alliance
between the fdp and Christian Democrats elected Helmut Kohl to be chancellor by
a vote of 256 to 235, the fi rst time that a postwar German government had been re-
placed without a national election. The chancellor has moved for a vote of confidence
under Article 68 on five occasions. Chancellors Helmut Schmidt (on 3 February
1982) and Gerhard Schrder (on 13 November 2001) won their votes of confidence for
the purpose of validating certain policies. But on three occasionsWilly Brandt
(on 22 September 1972), Helmut Kohl (on 17 December 1982), and Gerhard Schrder
Separ ation of Powers 155
(on 1 July 2005)the chancellors deliberately lost confidence votes to the set the
stage for new federal elections. The defeat of Chancellors Brandt, Kohl, and
Schrder in these Article 68 confidence votes is qualified by the fact that each, at the
time of the vote, commanded a governing majority in the Parliament. The parliamen-
tary vote in each case essentially was an orchestrated expression of the governing
majoritys will to trigger new federal elections in the hope that new elections would
return them to office with a stronger mandate. To paraphrase one Social Democrat
who participated in Gerhard Schrders maneuver in 2005, in such situations the
parliamentary majority shows its confidence in the chancellor by expressing its lack
of confidence.
These so-called false no-confidence votes (unechte Vertrauensfragen) have prompted
much critical commentary. The critics argue that they tread perilously close to en-
dowing the chancellor with a right to dissolve Parliament at his or her whim, the very
thing the clear letter of the Basic Law sought to prohibit in the name of stable parlia-
mentary government. The result, it is argued, involves the politicians in a scheme
aimed at gaming the constitution.12 Not surprisingly, these rare events have led to
Organstreit proceedings before the Federal Constitutional Court, which held, in the
Parliamentary Dissolution I Case (1983), that Helmut Kohls false no-confidence vote
satisfied the formal requirements of Article 68 and, additionally, was justified by
Kohls rational belief that he was confronted with a situation of instability (eine
Lage der Instabilitt), despite the fact that he was supported by a majority coalition
in the Bundestag. (In fact, he recently had been elected to the chancellorship via a
constructive vote of no confidence.)13 For these reasons the Court found nothing
constitutionally objectionable in the federal presidents decision to dissolve the Par-
liament and order new elections. In the course of its opinion, the Court made clear
that each of the decision makers along the waychancellor, Bundestag, and presi-
dentis duty-bound to consider the Basic Laws sharp limits on the power of disso-
lution. Each is required, independently and conscientiously, to decide whether the
political divisions in the Bundestag seriously impair the ruling coalitions capacity to
govern. The Court emphasized the political nature of this judgment and underscored
the fact that these cases blur the line between constitutional and ordinary politics.
The Court explained that it stands ready to render its own judgment on the merits of
any proposed parliamentary dissolution, but it reasoned that the president, in par tic-
u lar, should grant the chancellor a certain political leeway (Spielraum) in determin-
ing whether he or she is faced with a situation of instability that would justify dis-
solution and new elections.
The Parliamentary Dissolution II Case, featured below, picks up where Dissolution I
leaves off.14 Following a string of devastating state and local election defeats for his
Social Democrats, most notably in the traditional spd stronghold of North Rhine
Westphalia, Chancellor Schrder orchestrated a failed confidence vote in 2005, even
though his governing coalition enjoyed a majority (albeit by a slender thirteen votes).
In his remarks to the Bundestag upon moving for the confidence vote, Chancellor
Schrder complained that his ability to govern had been handicapped by the coalitions
156 chapter four
slim majority in the Parliament, by division within his party and the governing coali-
tion, by the oppositions control of the Bundesrat (where it was successfully blocking
much of the governments legislation), and by intense special interest opposition to
and not-insignificant public outrage over the governments comprehensive reform
program known as Agenda 2010. The chancellor contended that drastic measures
were required to confront Germanys economic and demographic crises, as well as
the increasing challenges of globalization and the difficulties plaguing the European
project. All of this necessitated, the chancellor urged, a strong and competent gov-
ernment empowered with a clear mandate from Germanys voters.
In televised remarks on 21 July 2005, President Horst Khler accepted Chancellor
Schrders litany as adequately establishing the existence of a situation of insta-
bility. Our future, the president declared, and the future of our children stands in
the balance.
Two members of the Bundestag disagreed and challenged the presidents dissolution
order as an unjustified infringement of their constitutionally protected four-year
term in office (Articles 38 (1) and 39 (1) of the Basic Law). The new elections ordered
by the president, the parliamentarians argued, would shorten their term in office by a
full year. As a matter of separation of powers, the complainants warned, legitimizing
the false no-confidence vote maneuver would aggrandize the chancellors authority
at the expense of the Parliament by providing the chancellor with an opportunity to
secure support for his or her policies by threatening parliamentary dissolution. They
argued that Article 68 was meant to measure the basis of the governments power
exclusively in the Bundestag, where a slim majority is sufficient to govern effectively.
Th is had been repeatedly proven in Schrders case, the complainants explained, by
his governments ability to pass controversial legislation through the Bundestag. The
complainants further contended that the opposition in the Bundestag, and even the
supposed opposition within the governing coalition, should be welcomed for its demo-
cratic effect of sharpening policy and broadening the consent needed for the enact-
ment of policy. Finally, they argued that the new Bundestag elections, should the
chancellor be returned with a stronger mandate, would do nothing to alter the politi-
cal deadlock between his government and the Bundesrat.

4.1 Parliamentary Dissolution II Case (2005)


114 BVerfGE 121
[Article 68 allows the president to dissolve the Bundestag if the Parliament fails
to support the chancellor in a vote of confidence. Th is is exactly what happened
in the vote held on 1 July 2005. Yet, considering the potential for a manipulated
no-confidence vote, the Court in the Parliamentary Dissolution I Case (1983)
had added a material condition to the formal terms of Article 68. A situation
of instability also must exist. On the one hand, with a 71 majority the Court
here upheld Chancellor Schrders false no-confidence vote and the presidents
subsequent dissolution order. On the other hand, the majoritys characterization
Separ ation of Powers 157
of the law governing the question could only muster the support of five justices.
Justice Lbbe-Wolff wrote separately to depart from the majoritys reasoning.
Justice Jentsch, the lone dissenter from the Courts holding, also wrote
separately.]

Judgment of the Second Senate. . . .
C. . . . The complaints are unfounded. The decree of the federal president from 21 July
2005, which dissolved the 15th German Bundestag and set an election for 18 Septem-
ber 2005, did not violate the Basic Law. The decree did not harm or threaten the com-
plainants status as members of the Bundestag, a status protected by Article 38 (1) [2]
and Article 39 (1) [1] of the Basic Law. . . . .
II. The motion for a vote of confidence directed toward dissolution of the Bunde-
stag is constitutional only when it complies, not only with the formal requirements,
but also with the purpose of Article 68 of the Basic Law.
In Articles 63, 67, and 68, the Basic Law strives for a government that is able to
act. . . .
1. The constitution is aimed at ensuring that there is a government that is anchored
in Parliament. The chancellor is elected by the Bundestag. In order to exercise effec-
tively his or her mandate, the chancellor requires the continuous support of a major-
ity in the Bundestag. Relying upon a free mandate, however, each member of parlia-
ment is entitled, and has a responsibility, to oversee the government and, within the
framework of the competences of the Bundestag, to participate in shaping policy. The
task of monitoring the majority falls especially, though by no means exclusively, to
the opposition in the Bundestag. . . . First and foremost, in parliamentary debate, the
opposition publicly monitors and criticizes the governments actions and formulates
alternatives. The majority from which the chancellor was elected typically will sup-
port its government and its chancellor in these open policy debates. Neverthe-
less, the parliamentary majority regularly will express criticism of the governments
political course within the parliamentary faction or the party. Thus, the parliamen-
tary decision-making process has two distinct components. First, it consists of the
relationship between the government and a parliamentary majority. Second, it ben-
efits from the parliamentary minoritys opposition to the government. To a consider-
able degree that process is shaped and organized by the parliamentary parties in the
Bundestag. . . . Th is does not preclude public criticism from members of parliament
who belong to the governments majority. It also does not preclude the possibility
that members of parliament belonging to the governments majority will act contrary
to the will of the government. After all, members of parliament are subject only to
their conscience. Still, the chancellor is especially reliant on collaborationbased
on trustwith the majoritys leader or leaders so that he or she is assured that the
majority in the Parliament is supportive. The leadership of the parliamentary parties
will seek to ensure that, out of the parliamentarians freedom to be bound only by
158 chapter four
their conscience, an effective consensus emerges. That consensus should be compat-
ible with the federal governments program.
In principle, the chancellor and his or her government require a dependable par-
liamentary majority. In this context dependable means that the chancellor is enti-
tled to expect sufficient parliamentary support, in principle, for his or her political
program. Whether the chancellor has that dependable support can be gauged from
the outside only to a limited degree. Parliamentary and political working conditions
might conceal from the public the real nature of the chancellors relationship with
parliamentary groups. Doubts about whether the chancellor and his or her govern-
ment still have a dependable parliamentary majority need not be fully and unambig-
uously resolved in order for concerns to exist.
2. If the chancellor is no longer able to secure the votes of the majority of the mem-
bers of parliament, then this position is classified by the Basic Law as a political crisis
that triggers special provisions of the Basic Law that assign responsibility for resolv-
ing the crisis to other constitutional organs. For example, with the approval of the
president, it would be possible to appoint a minority chancellor, and a government
can be deemed sufficiently capable of action to permit indispensable measures and
laws to be adopted without the involvement of the Bundestag. . . .
3. The dissolution of the Bundestag is an interference with the freedom of a par-
liamentarians mandate that extends, by virtue of the constitution, for four years.
Dissolution under Article 68 of the Basic Law is limited by the purpose of that pro-
vision. It is sufficient that the chancellor legitimately believes that the federal gov-
ernments ability to act in concert with a dependable parliamentary majority is
impaired.
[The Court considered the historical roots of the Basic Laws preference for par-
liamentary stability, including the framers consciousness of the political and
human rights trauma that resulted from the repeated dissolution of the Reichstag
late in the Weimar era. The Basic Laws framers, the Court summarized, reached
the conclusion that parliamentary elections held in rapid succession in times
of economic and political crisis favor radical forces and may undermine general
confidence in the adherence to rules of the process of forming the political will in
a constitutional state. To avoid the risks associated with parliamentary upheaval,
the Court explained, the Basic Law provides that a situation of instability be-
tween the chancellor and the Bundestag can be ended only by the resignation of
the chancellor or by a vote of confidence directed toward dissolution.]
Accordingly, viewed in the light of the meaning of Article 68 of the Basic Law, it is
appropriate for a chancellor to ask for a vote of confidence directed toward dissolu-
tion of the parliament if he or she faces policy setbacks and no longer enjoys the sup-
port of a majority in the Bundestag. The chancellors ability to act also is lost if he or
she is forced to avoid setbacks in the Bundestag by moving away from substantial ele-
ments of a desired political program and is, instead, required to pursue different poli-
cies. The chancellor must act under the control and with the cooperation of the
Separ ation of Powers 159
Bundestag and, to that extent, try to reach compromises on a daily basis. But the
constitution does not view the government as an executive committee of parliament.
A prerequisite for effective checks and balances is that the federal government also
has a clear sphere of responsibility. The federal government is meant to be an inde-
pendent policy-making constitutional organ that can be answerable to the Bundestag
and through the Bundestag, to the citizensonly if it has adequate independent
scope for political action. . . .
4. The Federal Constitutional Court reviews the appropriate application of Article
68 of the Basic Law only to the limited extent anticipated by the constitution.
[The Court noted that its role in reviewing an Article 68 dissolution process
is least controversial and most circumscribed when the governments loss of
a dependable parliamentary majority is obvious, that is, when a majority of the
Bundestag behaves in an openly and persistently obstructive manner and
clearly declares that it has no confidence in the chancellor, but equally avowedly
cannot agree on the election of a new chancellor by the procedure in Article 67
of the Basic Law. In these circumstances the situation of political instability
required for the exercise of Article 68, in the sense of the governments loss of a
dependable parliamentary majority, is incontestable.]
. . . Constitutional difficulties in the Courts review of an Article 68 dissolution
process arise when the chancellor concludesbefore actually suffering policy set-
backs in the Bundestagthat there is no assurance that his or her policies will be
supported by a parliamentary majority. It is even more difficult to evaluate the chan-
cellors conclusion if the paralyzing political effects of such a situation will only be-
come apparent in the future.
Such a concealed minority situation arises when, on the one hand, an organized
parliamentary majoritythe nominal majority required to elect a chancellordeclares
its support for the chancellor and publically offers its political support, while, on the
other hand, support for the chancellors political agenda is not effective enough to
ensure the enactment of the central components of those policies.
By their very nature, the erosion and the tacit withdrawal of parliamentary confi-
dence are not capable of being presented and ascertained in court proceedings. Po-
litical disputes that have not been (legitimately) resolved in the open political pro-
cess do not have to be disclosed to other constitutional organs, such as the Court.
The chancellors estimation that he or she no longer is sufficiently able to implement
his or her policies in the future is an evaluation that, in practical terms alone, cannot
be reviewed unequivocally and completely by the Federal Constitutional Court.
Such questions are not amenable to the usual procedural methods of obtaining infor-
mation, at least not without damaging the political machinery. . . .
[Confronted with this political limitation on its review of an exercise of Article
68, the Court adverted to the Basic Laws assignment of constitutional oversight
in this context to three successive constitutional organsthe chancellor, the
160 chapter four
Bundestag, and the federal presidenteach possessing the power to prevent
the dissolution according to their own free political assessment. Th is, the Court
concluded, helps to ensure the accuracy of claims that the federal government
has lost its power to act in Parliament.]
The chain of responsibility begins with the chancellor because, without his or her
motion, there is no means of dissolving the Bundestag. The constitution allocates to
the chancellor the sole competence to propose such a motion under Article 68 of the
Basic Law. The Basic Law recognizes the elevated status of the office of federal chan-
cellor within the system of parliamentary government in the Federal Republic of
Germany.
The Bundestag then decides whether, by refusing a vote of confidence, it will open
the way to dissolution. There is no conceivable situation in which a chancellor could
legally force Parliament, against its will, to participate in its own dissolution. Even
if the governing coalition had only a narrow majority, the chancellor still could
not rely on the opposition to help bring about Parliaments dissolution. Indeed,
thechancellor could not instruct cabinet ministers, who also are members of the
Bundestag, to vote in a par tic u lar way on the confidence motion. The parliamen-
tarians right to represent constituents without being bound by instructions takes
precedence. . . .
Finally, as the third constitutional organ, the president orders the dissolution ac-
cording to a political assessment. In the present case, prior to announcing his deci-
sion, the president had carried out his responsibility to undertake an independent
legal assessment of the requirements of Article 68 of the Basic Law. Even if, in so
doing, the president is confi ned to nothing more than a review for manifest abuse by
the chancellor or the Bundestag, the presidents word as a neutral authority still car-
ries weight if the matter eventually is brought to the Court for judicial review. The
Basic Law specifically inserts the president as an independent constitutional organ in
this procedure. The president is competent to conduct a legal review and is qualified
to set a political precedent by deciding to order or reject dissolution. The president
has a number of means for conducting this legal review, including personal and con-
fidential conversations that enable him or her to form a picture of whether the gov-
ernments ability to act in a manner that accords with the purpose of Article 68 of the
Basic Law is endangered or already has been lost.
The demanding mechanism of separation of powers applicable to dissolution
under Article 68 of the Basic Law can be meaningfully deployed only if the Federal
Constitutional Court respects the political assessment of the constitutional organs
that acted on the matter before it became seized of the case. . . .
. . . Due to the three-stage [political] decision-making process, the Federal Con-
stitutional Courts scope for review under Article 68 of the Basic Law is less extensive
than in the spheres of legislation and statute enforcement. The Basic Law primarily
relies on the system of mutual political control and political equilibrium between the
supreme constitutional organs concerned, as established in Article 68 of the Basic
Separ ation of Powers 161
Law. Only where standards for political conduct are laid down in constitutional law
can the Federal Constitutional Court confront their infringement.
[The Court credited a number of factors establishing the existence of a situation
of instability in Chancellor Schrders case. Relying on Schrders speech to
the Bundestag in support of the confidence vote, the Court cited his explana-
tion that his Agenda 2010 reform package had created conflicts between
Schrders Social Democrats and his governments coalition partner, the Green
Party. The Court noted that there were also calls for Schrders resignation
from within his own party. The Court also brushed aside two of the complain-
ants arguments. First, the Court dismissed the fact that leading Social Demo-
crats had commented on the partys continuing confidence in Schrder, con-
cluding that these remarks referred to Schrders character and not his policies.
Second, the Court found Schrders recent legislative successes to be unim-
portant because none of the legislation cited implicated the contentious Agenda
2010 policies.
Justice Lbbe-Wolff concurred in the result (upholding the presidents dis-
solution order). But she wrote separately to argue that the presidential and
judicial review of Article 68 no-confidence votes was both improper and inef-
fectual, resulting in a mere facade of control. Echoing the concerns of the
American political question doctrine, she urged that parliamentary confidence
in the chancellor is, by defi nition, a question only the Parliament can resolve.
Justice Jentsch also wrote separately, but he dissented from the Courts hold-
ing and reasoning in the case. First, he asserted a formalist critique, arguing
that Chancellor Schrder had not actually lost his majority in the Parliament.
He then raised concerns about the consequences for governing stability if such
false no-confidence votes were accepted because they might establish a de facto
right to parliamentary dissolution despite the Basic Laws clear disapproval of
such measures.]

Impact of the Dissolution Cases. The Parliamentary Dissolution cases were extremely
controversial. As former federal president Karl Carstens acknowledgedit was
Carstens who dissolved the Parliament following Helmut Kohls false no-confidence
votemost German constitutional scholars questioned the constitutionality of the
dissolution order.15 Th is view had not changed by the time the Federal Constitu-
tional Court considered Chancellor Schrders no-confidence maneuver in 2005.
Among the German constitutional law luminaries surveyed by the Frankfurter Allge-
meine Zeitung in the weeks prior to Schrders no-confidence vote (including a num-
ber of former justices of the Constitutional Court) the overwhelming sentiment was
against the constitutionality of the procedure.16 Yet, as others have pointed out,
these cases are of unusual political delicacy. A decision against the Kohl dissolution
order, one commentator wrote, might have tarnished the credibility of the highest
162 chapter four
governmental organs, including that of the president, and thus damage[d] public
confidence in the entire constitutional system.17
The Parliamentary Dissolution cases took the form of declaratory judgments, pro-
viding the defi nitive understanding of the relevant constitutional law. The Courts
decisions have no direct effect on the challenged policies because, in Organstreit
proceedings, the Court is authorized only to interpret the Basic Law (Article 93 (1)).
The organs concerned are expected to revisit the matter and pursue a resolution in
line with the Courts ruling. Th is signals that the framers were conscious of the po-
litical sensitivity of such disputes and, accordingly, allocated limited authority to the
Constitutional Court to intervene. On these terms, a decision against the validity of
the dissolution orders in the Parliamentary Dissolution cases would not have caused
the cancellation of the planned elections.

Executive Privilege and the Flick Case. Major constitutional clashes between the
Federal Republics highest organs occur infrequently; the Parliamentary Dissolution
cases are exceptional. Some commentators have seen separation of powers more
directly implicated in the Courts exercise of judicial review. The Courts invalida-
tion of major social policies, together with the instructions and warnings it fre-
quently hurls at the legislature, have led to charges that the Court has overstepped
its proper bounds by encroaching on the powers of Parliament.18 Justice Wolfgang
Hoff mann-Riem of the Federal Constitutional Court, however, has defended judi-
cial review on separation of powers grounds, arguing that [t]here had to be a third
power to keep the fi rst two branches [legislature and executive] in line.19 He went
on to note the history of judicial review in Germany, including references to the
failed Frankfurt Constitution of 1849 and, more prominently, its invocation by the
Imperial Court of Justice (Reichsgericht) in the 1920s.20 Th is history, of course,
would culminate in the establishment of the Constitutional Court under the Basic
Law, a tribunal with particularly wide-ranging jurisdiction to review acts of the
Parliament.21 Perhaps not surprisingly Gerhard Casper also took an approving view
of the Courts expansive role in his keynote address at the formal state celebration
on the Federal Constitutional Courts fi ft ieth anniversary.22 Still, sweeping exercise
of judicial review does not present classic separation of powers issues in the mold of
Youngstown Sheet & Tube Co. v. Sawyer (1952), or even Immigration and Naturaliza-
tion Service v. Chadha (1983).23
One issue that has produced a significant comparable case in Germany is the
claim of executive privilege. In United States v. Nixon (1974)24 the Supreme Court
ruled that a federal court could direct the president to produce certain recordings
and documents over his objection that such executive communications enjoyed an
implied unqualified privilege of immunity. Similarly, in the Flick Case (1984),25 the
Federal Constitutional Court ruled that the Federal Finance and Economics Ministry
must deliver certain corporate records to a parliamentary committee investigating
an exemption of dm 1.5 million in capital gains earned by the Flick Corporation from
its sale of Daimler-Benz stock. The committee was looking into charges that influen-
Separ ation of Powers 163
tial persons in Flicks managerial hierarchy had transferred large sums of money to
high civil servants and politicians in exchange for the tax exemption. The ministry
refused to produce certain documents on the grounds that they contained trade and
tax secrets, the confidentiality of which was required by the tax code. The Green and
Social Democratic committee members petitioned the Court to order the full disclo-
sure of the missing records.
In investigating the activities of the federal government, the Court declared that a
parliamentary committees right to take evidence under the terms of Article 44 (1) of
the Basic Law includes the right to demand documentary evidence. Even as the
Second Senate acknowledged the existence of a core sphere of executive autonomy
in which a range of initiatives, consultations, and activities is immune to parliamen-
tary oversight, it held that, in the circumstances of this case, the Ministry of Finance
and Economics had violated Article 44 by failing to comply with the committees
request. Where the government is accountable to Parliament, said the Court, doc-
umentary disclosure is an integral part of parliamentary control. The Court empha-
sized that Parliaments right to documentary evidence of the kind sought here is an
essential aspect of the principle of separated powers. Nevertheless, the Court unani-
mously noted that, if circumstances require, the legitimate concerns of the executive
for confidentiality can be satisfied by the committees examination of the relevant
records in closed session.
The Court again endorsed the authority of the Parliament over the federal govern-
ment, in the context of parliamentary investigations, in the Minority Rights in Investi-
gative Committees Case (2002; no. 5.1).26 The Second Senate held that the minority in
a parliamentary committee has a right to request the review of a point or points of
evidence if they believe that these matters will prove to be critical to the committees
fi ndings. While the case ostensibly pitted a parliamentary minority against a parlia-
mentary majority, and thus avoided explicit separation of powers issues, the Courts
decision nonetheless prevented the executive from hiding behind its majority in the
Bundestag in order to avoid parliamentary oversight.27 Th is represents a concession
to the view, mentioned earlier and developed more fully in Chapter 5, that the oppo-
sition in Parliament rather than the opposition of Parliament now serves as the most
effective check on the executive.
A more direct example of the Courts willingness to uphold Parliaments preroga-
tives over the federal government was at stake in the Surveillance of Members of
Parliament Case (2009).28 The Constitutional Courts Second Senate reiterated Par-
liaments right to seek and obtain information from the government, a right rooted as
much in the democratic principles discussed in Chapter 5 (especially Article 38 (1)
and Article 20 (2) of the Basic Law), as in notions of separation of powers. The Court
ruled that the government had not raised adequate security concerns to justify its
refusal to answer questions addressed to it by members of the Parliament.

Legislative-Executive Relations and the Budget. The budgetary provisions of the


Basic Law embody numerous checks and balances within and between various
164 chapter four
constitutional organs. The federal government must submit all tax and appropriation
bills simultaneously to the Bundesrat and the Bundestag (Article 110 (3)), where leg-
islative delay, pending further negotiation, is always possible. Expenditures in excess
of budgetary appropriations require the consent of the federal minister of fi nance,
who in turn may grant his or her consent only in case of an unforeseen and compel-
ling necessity (Article 112). By the same token, any law that exceeds the budgetary
limit proposed by the executive requires the federal governments consent (Article
113 (1)); the federal government may even require the Bundestag to postpone its vote
on such bills (Article 113 (1)). Should Parliament fail to approve a new budget, the
federal government may, according to Article 111, continue to make the payments
necessary to meet its contractual responsibilities, execute the laws, and maintain in-
stitutions established by law.
In the Budget Control Case (1977)29 the Constitutional Court clarified the mean-
ing of some of these provisions. After affi rming the paramount and exclusive
authority of the legislature to establish budgetary policy, the Second Senate em-
phasized the duty of all constitutional organs to cooperate in the timely enactment
of a budget bill. In passages that recall the principle of comity in the federal-state
context, the Court announced that constitutional organs are obliged to consider
each others interests in the exercise of their constitutional responsibilities. In the
exercise of his or her authority under Article 112, the federal minister of fi nance
must, if time permits, communicate and consult with the legislature for the pur-
pose of securing its consent to an expenditure in excess of that which has been au-
thorized. An unforeseen and compelling necessity within the meaning of this
Article exists only if additional expenditures have become so urgent that the
draft ing and introduction of a supplementary budget or budget amendment or a
postponement until the next fi scal year can no longer be viewed as a reasonable al-
ternative after a judicious assessment of the situation.30 The duty to communicate
in these special situations also extends to the relationship between the federal fi-
nance minister and the federal government. According to the Court, the govern-
ment infringes on the authority of the Parliament if, in the exercise of its special
powers under Article 111, it has not received adequate information on the basis of
which a decision regarding the ability of the legislature to meet the crisis might
have been made.

judicial versus legislative authority

The German legal system, unlike the Anglo-American, does not regard judicial de-
cisions as sources of law. Separation of powers as understood by Montesquieu and
followed in the Continental legal tradition implies a regime of positive law in which
legislatures are the supreme lawmakers. The following propositions fairly well sum-
marize the German and, for the most part, Continental theory of lawmaking and
judicial authority: the focus of all lawmaking authority within the state is the
Separ ation of Powers 165
sovereign legislature; law is a closed system of logically arranged and internally co-
herent rules; all legal disputes must be resolved by reference to such rules; courts of
law, independent of the legislature, are the proper agencies for interpreting law;
courts should interpret laws literally and in strict accordance with the legislatures
will; their function, therefore, is to administer the law as written. Th is model of the
judicial role obviously exaggerates the difference between the function of courts in
civil-law and common-law systems. Nevertheless, the model broadly identifies a
frame of mind that helps to explain traditional German attitudes toward the devel-
opment of the law and the judicial roleand the separation to be maintained be-
tween those powers. The Princess Soraya Case provided the Court with an opportu-
nity to reflect anew on the role of courts in a constitutional democracy in which
elected legislatures make the law.

4.2 Princess Soraya Case (1973)


34 BVerfGE 269
[Th is constitutional complaint arose out of a civil damage suit for defamation
brought by the ex-wife of the Shah of Iran against the daily newspaper Die Welt
and a freelance journalist. The complainants had published a fictitious inter-
view with Princess Soraya in which intimate details of her private life were re-
vealed. The German Civil Code (Brgerliches Gesetzbuch), however, contains
no specific provision for a civil damage award for an invasion of privacy. Such
an intrusion instead constitutes a criminal offense. Tort recovery, however, is
possible under 823 of the Civil Code if the plaintiff can show injury to life,
body, health, freedom, property, or some other right. The Bundesgerichtshof
(Federal Court of Justice) eventually interpreted some other right to include
the right to personality. But 253 of the Civil Code bars monetary relief for
nonpecuniary injuries. Recovery for such injuries is possible only in cases pro-
vided by written law. No law allowed recovery for the injury sustained by the
plaintiff. The Federal Court of Justice nevertheless authorized recovery in the
light of changing social conditions and the fundamental values of the Basic
Law, one of these values being the right to protect ones personality. The affi r-
mation of a money damage award was contested by the complainants in part on
the ground that the courts had exceeded their proper authority under the con-
stitution. The Constitutional Court disagreed.]

Judgment of the Second Senate. . . .
C. IV. 1. The judge is traditionally bound by the law. Th is is an inherent element of the
principle of separation of powers and, thus, of the constitutional state principle. Article
20 of our Basic Law, however, has somewhat changed the traditional formulation by
providing that the judge is bound by law and justice. The generally prevailing view
166 chapter four
implies the rejection of a narrow reliance upon formally enacted laws. The formula-
tion chosen in Article 20 keeps us aware of the fact that although law and justice are
generally coextensive, they may not always be so. Justice is not identical with the ag-
gregate of the written laws. Under certain circumstances justice can exist beyond the
positive norms enacted by the statejustice, which has its source in the constitu-
tional legal order as a meaningful, all-embracing system, functions as a corrective
of the written norms. The courts have the task of identifying justice and making it a
legal reality in binding cases. The constitution does not restrict the judge to applying
the language of legislative mandates to a par ticu lar case. Th is concept of the judicial
function presupposes that no gaps in the written legal order exista condition that
may be desirable in the interest of legal certainty but is unattainable in practice. The
judges task is not confi ned to ascertaining and implementing legislative decisions.
The judge may have to make a value judgment (an act which necessarily has voli-
tional elements); that is, bring to light and implement in his or her decisions those
value concepts that are inherent in the constitutional legal order, but are not, or not
adequately, expressed in the language of the written laws. In performing this task,
the judge must guard against arbitrariness; his or her decision must be based upon
rational arguments. The judge must make it clear that the written law fails to perform
its function of providing a just solution for the legal problem at hand. Where the writ-
ten law fails, the judges decision fi lls the existing gap by using common sense and
general concepts of justice established by the community.
In principle, no one has questioned the judges power and duty to hand down
creative decisions since the adoption of our present constitution. The highest courts
have claimed this power from the beginning, and the Federal Constitutional Court
has always recognized it. The legislature has expressly bestowed upon the highest fed-
eral courts sitting en banc [i.e., when all the senates of the federal high court in ques-
tion convene to decide a case together] the task of further development of the law.
In some areas of the law, such as labor law, this task has become particularly important
because legislation has not kept up with the rapid pace of social development.
The only remaining question is what limits to impose upon such creative judicial
decision making. We must keep in mind that the judge is bound by written law, a
principle that we cannot abandon if the constitutional state principle is to be main-
tained. We cannot reduce these limits to a formula equally applicable to all areas of
the law and to all legal relationships.
2. For purposes of the present decision we confine the formulation of the issue to the
area of private law. In this area the judge is confronted with a great codification, the
Civil Code, which has been in force for over seventy years. Th is fact has dual signifi-
cance. First, the judges freedom to creatively develop the law necessarily grows with
the aging of codifications, with the increased distance in time between the enactment
of the legislative mandate and the judges decision in an individual case. The interpreta-
tion of a written norm cannot always, or for an unlimited period, remain tied to the
meaning the norm had at the time of its enactment. One must explore what reasonable
function the norm initially served. The norm always remains in the context of the social
Separ ation of Powers 167
conditions and sociopolitical views it affects. As these conditions and views change, the
thrust of the norm can, and under certain circumstances must, be adjusted to such
change. This is especially true when, between the time of enacting and implementing a
law, conditions of life and popular views on legal matters have changed as radically as
they have in the present century. The judge cannot, by simply pointing to the unchanged
language of the written law, avoid the conflict that has arisen between the norm as writ-
ten and a change in societys substantive notions of justice. If the judge is not to be der-
elict in his or her duty to pronounce justice, legal norms must be implemented more
freely. Second, as experience dictates, legislative reforms encounter particularly great
difficulties and obstacles when they are intended to revise great bodies of legislation
that shape the system and character of the entire legal order as does the codification of
private law contained in the Civil Code.
3. The decisions presently being challenged concern an issue (i.e., the question
of recoverability of money damages for injury to an intangible interest) that was
already controversial when the preparatory work on the draft of the Civil Code was
in progress. Criticism of the solution chosen by the legislature was immediate and
has never ceased, although it did not, at that time, involve constitutional argu-
ments. Critics referred to legal developments in other countries of the Western
world that have taken a more liberal approach toward the possibility of recovering
money damages for injuries to intangible interests. [The Court here cited several
comparative studies.] Consequently, critics could point out that nowhere in the
West did an unlawful act so frequently remain without civil sanctions as in
Germanyand for the sole reason that the act had only caused nonphysical
damages. Opponents characterized the rule as a legislative failure because it lim-
ited the recovery of money damages for injury to intangible interests to a few enu-
merated special casescases, moreover, selected with a certain lack of underlying
concept. Criticism became even sharper after the courts, under the influence of
the constitutions power to shape private law, took the step of recognizing the
general right of personality. The gap that existed in the available remedies for a vio-
lation of that right thus became apparent. Th is problem, the importance of which
the framers could not anticipate when draft ing the Civil Code, now urgently de-
manded a solution responsive to a changed consciousness of legal rights and values
that a new constitution influenced. One could not deduce this solution from the
enumerative provision of 253.
The courts faced the question of whether to close this gap by the methods at their
disposal or wait for legislative intervention. When the courts chose the fi rst alterna-
tive, they found support from the writings of influential legal scholars. For this rea-
son legal scholars widely approved the relevant decisions of the Federal Court of
Justice and of other courts from the very beginning. Th is fact illustrates that these
decisions were consistent with generally recognized concepts of justice and were not
regarded as intolerable restrictions upon freedom of opinion or freedom of the
press. . . . To the extent that these decisions were criticized, the opponents directed
their criticism less against the result the Federal Court of Justice reached than against
168 chapter four
the methodological and doctrinal considerations with which the courts justified the
new approach. Insofar as this involves a question of methodology in private law, it is
not within the Federal Constitutional Courts province to determine the validity of
the critics objections. But one should not overlook the fact that the majority of
scholars specializing in private law apparently regard the reasoning of the courts as
dogmatically unobjectionable. . . .
The other alternative, to wait for legislative regulation, cannot be regarded as con-
stitutionally mandated under the circumstances. It is true that the federal govern-
ment twice has tried to bring about a legislative solution to the problem of protecting
an individuals personality right in the area of private law. But the bills drafted in 1959
and 1967 died early in the legislative process even though there was no indication of
any legislative intention to perpetuate the status quo. One cannot blame the judge if,
compelled to decide every case submitted and convinced that he or she cannot rely
upon the uncertain future intervention of the legislature, he or she does not adhere to
the literal meaning of the existing written law in a case where adherence would
largely sacrifice justice.
The method by which the Federal Court of Justice reached the decisions in ques-
tion is constitutionally unobjectionable for a further reason: Th is method deviated
from the written law only to the extent absolutely necessary to resolve the legal
problem presented by the instant case. The Federal Court of Justice has not regarded
253 in its entirety as no longer binding. Nor has it treated that provision as uncon-
stitutional. . . . The court has left the enumerative principle expressed in 253 intact,
and has merely added one situation to the legislatures own enumeration of situa-
tions in which money damages can be recovered for injury to intangible interests.
The Federal Court of Justice found this addition to be compellingly justified by the
evolution of social conditions as well as by a new law of higher rank: Articles 1 and 2
of the Basic Law. Thus, the Federal Court of Justice and other courts following its
holdings have neither abandoned the system of the legal order nor have they exhib-
ited an intention to go their own way in making policy. They have merely taken a
further step in developing and concretizing basic ideas inherent in the legal order
molded by the constitution, and they have done so by means that remain within this
system. Therefore, the legal rule found by creative judicial decision is a legitimate
part of the legal order, constituting a limitation upon the freedom of the press as a
general statute within the meaning of Article 5 of the Basic Law. The rules pur-
pose is to guarantee effective protection of the individuals personality and dignity.
These are interests at the center of the constitutional ordering of values. Protecting
them in this way strengthens the effect of constitutionally protected fundamental
rights in a par tic u lar area of the law. For these reasons, complainants constitutional
arguments must fail.

In 1997 the Court was again asked to consider whether the ordinary civil courts, in-
cluding the Federal Court of Justice, had exceeded the narrowly construed judicial
Separ ation of Powers 169
role by broadly interpreting the Civil Code to contemplate the characterization of
unwanted children as a form of recoverable damages. In contrast to Princess Soraya,
however, the objection to the Unwanted Child Case was that the ordinary courts
alleged overreaching led to the violation rather than the actualization of the core con-
stitutional values of human dignity and personality.

4.3 Unwanted Child Case (1997)


96 BVerfGE 375
[Unwanted Child joined two tragic suits. The fi rst case involved a failed vasec-
tomy procedure that led to an unplanned pregnancy. The second case involved
the birth of a physically and mentally disabled child, the couples second child
affected by these conditions. In the second of these cases, as part of their family
planning, the parents sought the advice of medical specialists after the birth of
their fi rst disabled child. The defendant doctor advised the couple that an in-
herited disability was extremely unlikely in their future pregnancies and that
the couple should not forgo having more children on those grounds. In both
cases the plaintiffs sought and were awarded, among other damages, the costs
of supporting the children. The defendant doctors raised constitutional com-
plaints against the awards in the Federal Constitutional Court. First, the defen-
dants argued that the Civil Code did not provide for these damage awards and
that the ordinary courts interpretation of the Civil Code to allow damages
constituted a far-reaching form of progressive judicial development of the law
in violation of separation of powers (Article 20 (2) and (3)). Second, the defen-
dants argued that, even if the ordinary courts had acted within their power
in interpreting the Civil Code to permit these damages, to do so would be to
instrumentalize a human being in violation of the constitutional protections of
human dignity and personality (Articles 1 and 2 of the Basic Law). The First
Senate, in a 62 decision, found neither a violation of separation of powers nor
basic rights in the decisions of the ordinary courts.]

Judgment of the First Senate. . . .
2. The interpretation of these provisions by the civil courts does not exceed the limits
of judicial competence arising from Article 20 (2) and (3) of the Basic Law.
a. The interpretation of ordinary statute law, including the choice of the method to
be used in this regard, is a matter for the ordinary courts other than the Federal Con-
stitutional Court and is not to be examined for correctness by the latter. The Court is
required only to ensure that the requirements of the Basic Law are adhered to in this
regard.
Article 20 (2) of the Basic Law gives expression to the principle of separation of
powers. Even though this principle has not been formulated in the Basic Law in the
170 chapter four
sense of a strict separation of the functions and a monopolization of each individual
function by a par ticu lar organ, in any event it precludes the courts from laying claim
to powers that have been clearly conferred upon the legislature by the constitution.
Under Article 20 (3) of the Basic Law the judiciary is bound by law and justice. It
would be incompatible with that provision if the courts were to relinquish the role of
a body applying laws and assume that of a legislative authority, thereby evading their
obligation to be bound by law and justice.
These constitutional principles do not preclude the courts from further develop-
ing the law. In view of the increased pace of change in social conditions and the
legislators limited scope for reaction, and of the open wording of numerous stat-
utes, the adaptation of prevailing law to changed conditions is one of the tasks of the
judicial branch. Th is is especially true given the increasing gap in time between the
adoption of a statutory requirement and judicial decisions in par tic u lar cases. The
Court has declared this specifically with reference to the Civil Code.
The courts may not, however, avoid the statutes meaning and purpose as deter-
mined by the legislature. Their task is confi ned to giving effect to that meaning and
purpose as reliably as possible under changed conditions. If the changed condi-
tions are new types of possibilities for action and influence created by scientific
and technological progress, the legal fi nding will, as a rule, consist of an expansion
of the field of application of an interpretation that is already current. The legisla-
tures prerogative of setting the purpose of a statute will not normally be affected
by this.
As the development of law also affects ordinary law below the constitutional level,
answering the question of whether and to what extent changed conditions necessi-
tate new legal answers is likewise the responsibility of the ordinary courts. In princi-
ple, therefore, the Constitutional Court may not substitute its own assessment for
that of the ordinary courts. From the point of view of Article 20 of the Basic Law,
the Constitutional Courts review is confi ned to evaluating whether, in developing
the law, the ordinary court has respected the fundamental legislative decision and
followed the recognized methods of interpretation.
b. The challenged decisions meet this criterion both in respect of contractual lia-
bility for child maintenance and in respect of compensation for pain and suffering
connected with a pregnancy and birth that arose against the womans will.
With regard to contractual liability, the challenged decisions are based both on
the conventional understanding of pecuniary damage, according to which, in prin-
ciple, maintenance obligations may also be regarded as damage within the meaning
of 249 of the Civil Code, and on the ascertainment of damage according to the off-
setting method. The Federal Court of Justice measures contractual liability against
the purpose of the contractprevention of procreation and birth of a matrimonial
child, including for economic reasonsand restricts the protective scope of the
contract to the spouses. The decisions are based upon the long-developed principles
governing general contractual liability, which have been extended to new cases of
medical professional activity. Whether a further development of the case law relating
Separ ation of Powers 171
to damages in a different direction would have been possible does not need to be
discussed here, since the Court is not required to examine questions of ordinary law
concerning principles of civil law. In any case, it is in keeping with the law of medical
practitioners liability, which has developed over many years, that, in cases of the
present type, the civil law has sought appropriate solutions to reproductive medi-
cines new possibilities of influence and control. It cannot be argued that the Federal
Court of Justice, at the time it was establishing the extent of liability for damages,
considered that restrictions were necessary. The Federal Court of Justice restricted,
by means of judge-made law, the liability of the medical practitioner with regard to
value judgments at the interface between damages-law and family-law issues. Th at
does not call into question the method for ascertaining damages.
Nor are the limits of judge-made application of the law to the facts exceeded inso-
far as the decisions award to the women with unwanted pregnancies compensation
for pain and suffering in respect of the complaints connected with pregnancy and
childbirth. The objection of an impermissible widening of 253 of the Civil Code
fails to take sufficient account of the fact that 847 of the Civil Code expressly
permits pecuniary compensation for nonmaterial damage. Insofar as the Federal
Court of Justice assesses an unwanted pregnancy as an unauthorized material inter-
ference with physical integrity and, therefore, as a personal injury, it acts within the
framework of conventional principles of civil law.

Dynamics of Judicial Lawmaking. The Court emphasized its limited role in the review
of the decisions of the ordinary courts, explaining that it is charged only with ensur-
ing that constitutional standards are observed in the otherwise fully independent
activities of the ordinary courts. The Court then reiterated the more dynamic view of
the judiciarys lawmaking competence that had been announced in Princess Soraya.31
Besides finding no constitutionally objectionable separation of powers issues in the
case, the First Senate also found the ordinary courts consideration of children as a
potential form of recoverable damage to be compatible with the basic rights protected
by the constitution. The doctors right to property (Article 14 (1)) and occupational
freedom (Article 12 (1)) were not implicated by the ordinary courts decisions. The
Court also concluded that the highest fundamental value in the order created by the
Basic Law, namely the protection of human dignity (Article 1 (1)), was not violated.
The Court acknowledged the constitutional responsibility that befalls the ordinary
courts as a result of the horizontal effect doctrine (Drittwirkung), pursuant to which
the constitutions objective order of values (as discussed in Chapter 2) extends to
confl icts involving private parties. The Court then defi ned the scope of its review, lim-
iting it to mistakes in interpretation, which involve a fundamentally incorrect view of
the meaning of a fundamental right, especially concerning the scope of its protection,
and which also are of considerable weight in their material significance.32 The Courts
majority concluded that awarding damages for unwanted children did not rise to this
standard because the Federal Court of Justices jurisprudence focused on the costs of
172 chapter four
supporting an unplanned child and not on the commodification of the existence of
the child itself. Th is characterization of damages, the Court noted, is common to the
law governing a myriad of other private harms.
The First Senate split 53 on whether its characterization of the human dignity of
the unwanted children contradicted the Second Senates abortion jurisprudence.
Had the majority concluded that the First Senates reasoning departed from that of
the Second Senate, then the matter would have to be presented to the Courts plenum
(both senates sitting together as a panel of sixteen justices). Th is part of the First
Senates judgment, and the Second Senates objection to the First Senates conclusion
that there was no need to engage the plenum (the Second Senates objection was fi led
in the form of an annex to Unwanted Child) are discussed in Chapter 1.
Princess Soraya and Unwanted Child involved an attack on the judiciary for tread-
ing on the legislatures near-exclusive competence over lawmaking. Having estab-
lished that the Basic Laws scheme of separation of powers permitted the judiciary to
participate in the progressive development of the law, the Court also needed to deter-
mine whether the legislature is obliged to bring allegedly flawed legislation into har-
mony with the guarantees of the constitution.

4.4 Aircraft Noise Case (1981)


56 BVerfGE 54
[Pursuant to the Aircraft Noise Act of 1971, property owners complained about
noise emanating from the Dsseldorf-Lohausen airport. When these actions
brought them no relief, the property owners fi led constitutional complaints in
the Federal Constitutional Court against the administrative authorities and the
relevant statutes. The Court rejected complaints against the administrative
authorities because the complainants had not yet exhausted all of their adminis-
trative remedies. The Court also rejected the complaints against the statute be-
cause the complainants had failed to fi le their complaints within one year of the
statutes enactment, as required by the Federal Constitutional Court Act. Nev-
ertheless, the Court accepted the complaints to the extent that they alleged an
unconstitutional omission on the part of the legislature. In this part of the case
the complainants argued that, in enacting the noise control statute, the legisla-
ture failed to adequately consider the requirements of Article 2 (2) of the Basic
Law, which guarantees the rights to life and the inviolability of ones person. On
this substantive question, however, the Court did not agree with the
complainants.]

Judgment of the First Senate. . . .
B. II. . . . Until now, we have admitted complaints of this type (i.e., complaints against
the legislatures failure to consider constitutional requirements) only exceptionally
Separ ation of Powers 173
and only when the complainant could invoke an explicit commitment in the Basic
Law that essentially defi nes the content and extent of the legislatures duty. Th is re-
quirement is not fulfi lled here. . . . After the fi ling date for challenging the implemen-
tation of specific legislation has expired, a constitutional complaint arising out of an
omission of the legislature may be considered only under the special aspect elabo-
rated upon in more recent opinions; namely, that the legislature by its inaction
might have violated a constitutional duty to amend a statute originally regarded as
constitutional.
Because of the great importance of noise abatement the Court has put aside these
problems of justiciability so that it may clarify the issue of substantive law in this
case. . . .
C. I. 1. The constitutional standard under consideration is the right of physical in-
tegrity protected by Article 2 (2). Our accepted jurisprudence does not merely pro-
tect the individual rights of citizens against governmental intrusion. Rather, govern-
mental bodies have the duty, based upon the objective legal content of Article 2 (2),
to shield and promote the legal interests therein enumerated. In par ticu lar, they must
protect these interests from unlawful infringement by others. . . .
2. . . . In recent opinions the Court has repeatedly explained that the legislature may
be constitutionally required to amend a statute even though it was regarded as consti-
tutional when originally enacted. In the Kalkar I Case the Court declared: If the legis-
lature has made a decision the basis of which has become questionable due to new,
originally unanticipated developments, then it might be obliged by the constitution to
examine whether or not the original decision is to be upheld under the changed cir-
cumstances. The duty to remedy this defect may be considered primarily in areas relat-
ing to basic rights if the government, by creating licensing requirements and granting
licenses, has accepted responsibility for the possible impairment of basic rights. . . .
It is possible to argue that the legislature has a duty to amend the original noise
control statute because the frequency of fl ights has rapidly increased since the early
1960s [when the law was enacted] and, in the meantime, the transition to jet-powered
aircraft has seriously aggravated the noise situation. In addition, we agree with the
complainants view that, in the light of these developments, the legislature may not
confi ne itself to limiting the acceptable noise level to that which the current techni-
cal state of the art makes unavoidable. . . . In a legal order oriented toward the indi-
vidual, the governing principle must be an assessment of what harm or danger the
individual can be expected to bear after weighing competing interests. . . .
II. 1. Contrary to the opinion of the complainant, the legislature has not violated
any protective duty resulting from Article 2 (2) by failing to amend the statute. . . .
Th is result is based on the fact that the Court, within the framework of a constitu-
tional complaint of the type presented here, may intervene only if the legislature has
manifestly violated its duty.
In the Abortion I Case, and again in the Schleyer Kidnapping Case, the Court
emphasized that governmental bodies (legislative and executive branches) are re-
sponsible for the form and manner in which they fulfi ll the governments duty under
174 chapter four
Article 2 (2). They must decide what measures are necessary and proper for carry ing
out this duty. . . . Th is limit on constitutional review seems necessary because decid-
ing how the state is to implement its affi rmative duty to act and protect the constitu-
tions objective values through active legislative measures is a highly complex issue.
The states duty to act is acknowledged here in order to ensure the citizens enjoy-
ment of the basic rights secured by the constitution. Various solutions are possible
depending on the assessment of the facts, the concrete legislative aims, and the suit-
ability of the imaginable ways and means. A policy decision in this area, which often
demands compromise, is subject to the principles of separation of powers and parlia-
mentary democracy. . . . Normally, the Court may review such a decision only up to a
certain point, unless legal interests of the highest importance are at stake. These
considerations are of even greater weight if the issue concerns not just whether the leg-
islature has violated its affi rmative duty to protect objective values, but whether it did
so by failing to amend an existing law. The Court can find such an omission to be un-
constitutional only if two factors exist. First, it must be evident that an originally valid
statute is now defective because of changing circumstances. Second, notwithstanding
this, the legislature has either done nothing or has taken obviously erroneous measures
to remedy the situation. In the realm of aircraft noise abatement one may not disregard
the fact that no reliable scientific findings are available concerning the limits of reason-
able aircraft noise burdens. Additionally, because international air traffic is so complex,
the legislature must have sufficient flexibility . . . to pass legislation on this matter.
2. Considering this standard of review, we cannot conclude that the legislature has
manifestly neglected its duty to protect citizens against noxious aircraft noise by
its failure to amend existing legislation. The measures taken since the early 1970s to
carry out the statute defy such a conclusion.

Klass Case. In a politically charged case decided three years before Princess Soraya,
the Court also considered the relationship between the legislature and the judiciary.
The Klass Case (1970) involved an amendment to the Basic Law that would permit
wiretaps and other interferences with private letters and telephone conversations
when necessary to protect the free democratic basic order or the existence or secu-
rity of the Federation or of a Land. The amendment (Article 10 (2)) further stipu-
lated that recourse to the courts shall be replaced by a review of the case by agencies
and auxiliary agencies appointed by the legislature. Separation of powers was one
of the grounds on which the amendments validity was questioned.33 The Court an-
swered these criticisms as follows:
Nor does substitution of recourse to the law by some other judicial control as pro-
vided for in Article 10 (2) [2] violate the principle of separation of powers. . . . Th is
principle does not demand a strict separation of powers. In exceptional cases legisla-
tive functions may be exercised by executive and administrative bodies, or executive
and administrative functions may be exercised by legislative bodies. In exceptional
Separ ation of Powers 175
cases the principle of separation of powers also permits legal protection against acts of
the executive to be furnished not by courts but by independent institutions that have
been appointed or established by Parliament and that operate within the framework of
the executive department. The essential point is that the rationale for separation of
powers, namely reciprocal restriction and control of state power, is still fulfi lled.34

delegation of legislative power

The Basic Law establishes the primacy of the legislature in the making of law. Legis-
lative authority may be delegated, but the principle of legality of administration
(Gesetzmigkeit der Verwaltung) puts sharp limits on such delegations. Article
80(1), the Basic Laws main delegation clause, authorizes national and state executive
branch officials to issue regulations (Rechtsverordnungen) having the force of law,
but the content, purpose, and scope of the authority conferred shall be specified in
the law. In addition, the legal basis of any such authorization must appear in the
regulation, and if the law provides that such authority may be further delegated,
such subdelegation shall be effected by statutory instrument. As one commentary
on the Basic Law notes, Article 80 represents a conscious departure from the
Weimar-era practice of conferring virtually unlimited discretion on executive offi-
cials to carry out the will of the lawmaker.35 The Basic Law thus imposes a high stan-
dard of rationality and accountability on the administrative process.36

4.5 Emergency Price Control Case (1958)


8 BVerfGE 274
[Sections 1 and 2 of the Price Control Act authorized the federal director of eco-
nomic administration as well as the directors of the highest state administrative
agencies to set prices, rents, and fees when market conditions in a given area are
deplorable. To implement these price controls 2 empowers the director of the
competent administrative agency to issue administrative orders. Five citizens
fi led objections to orders that forced them to use statutory prices as the basis for
the rents and fees they charged to their customers. Besides challenging the ad-
ministrative orders, these citizens also raised a facial challenge to the constitu-
tionality of 2. They contended that the provision was incompatible with Article
80 of the Basic Law because it failed to adequately define the delegation of author-
ity according to content, subject matter, purpose, and scope. Confronted with an
issue of constitutional magnitude, the courts involved set aside judicial proceed-
ings and submitted the question to the Constitutional Court pursuant to its con-
crete judicial review jurisdiction. In holding 2 of the Price Act constitutional,
the Court reaffirmed the constitutional principles embodied in Article 80.]

176 chapter four
Judgment of the Second Senate. . . .
C. VI. 2. The basic tenets of the constitutional state principle require that an empow-
ering statute adequately limit and defi ne executive authorization to issue burden-
some administrative orders according to content, subject matter, purpose, and
scope . . . so that official action will be comprehensible and to a certain extent pre-
dictable for the citizen.
Th is result follows specifically from the principle that an administrative agency
must function lawfully, which requires . . . a limited and narrowly defi ned executive
authorization for the issuance of burdensome administrative orders. Its purpose is to
make encroachments by the state as predictable as possible. The statute must regu-
late the agencys activity and may not confi ne itself to articulating general principles.
Limiting the encroaching agency through solely procedural principles also will not
suffice. A vague blanket provision that would permit the executive branch to deter-
mine in detail the limits of the individuals freedom confl icts with the principle that
an administrative agency must function according to law.
Further, the principle of separation of powers dictates this result. If a statute does
not adequately define executive powers, then the executive branch will no longer im-
plement the law and act within legislative guidelines but will substitute its own deci-
sions for those of the legislature. Th is violates the principle of the separation of powers.
Finally, the constitutional state principle supports this holding. Th is principle
requires the most comprehensive judicial protection possible from state encroach-
ments upon the legal sphere of the individual, as guaranteed today by Article 19 (4) of
the Basic Law. The judiciarys mandate to ensure a citizens legal protection against
encroachment on his or her rights by the state can be carried out only if the courts
can review the norms implementation by the executive agency. For this reason as
well the statute must adequately defi ne the authorization for encroachment.

Limits of Administrative Lawmaking. Persons harmed by any governmental au-
thority may challenge the legality of the act in question before an administrative
tribunal unless federal legislation has assigned a given sphere of public law to an-
other set of specialized (e.g., social, labor, or fi nance) courts. Administrative courts
also hear disputes between governmental agencies over their respective obligations
under public law. A typical administrative law case involves a complaint against a
licensing agency for canceling, or failing or refusing to grant, an individuals or legal
entitys permit to carry on some trade or activity regulated by public law. If the
agency has exceeded the limits of its discretion or otherwise acted illegally, the
courts may annul such action. Ordinarily such cases do not raise constitutional
questions.
The impact of the Basic Law on administrative law is nevertheless substantial.37
First, courts may nullify administrative regulations and executive decrees if officials
abuse their discretion or their acts violate fundamental law. Second, and particularly
Separ ation of Powers 177
within the sphere of licensing, the Court has tended to extrapolate standards for the
shaping of procedural law from the constitutional rights of individuals.38 For exam-
ple, in the Mlheim-Krlich Case (1979) the Court found the peaceful use of nuclear
energy constitutional in the face of an objection that nuclear power threatens consti-
tutional rights to life and bodily inviolability (Article 2 (2)).39 The Court, however,
cautioned that certain kinds of formalities, such as public participation in nuclear
power licensing procedures, may be necessary to protect basic rights and liberties.
Finally, Article 100 (1) of the Basic Law requires courts to submit their doubts about
the validity of a statutory delegation to the Court for resolution. The Kalkar I Case
arose when the Administrative Court of Appeals of North RhineWestphalia re-
ferred the Atomic Energy Act to the Court for a decision on the validity of its provi-
sions delegating authority to administrative officials. Much of the opinion, which is
featured below, deals with whether the statute adequately specified the technical and
scientific standards to be used in licensing nuclear power plants.

4.6 Kalkar I Case (1978)


49 BVerfGE 89
[Section 7 (1) of the Atomic Energy Act provides that any person who con-
structs or operates an installation for the production or fission of nuclear fuel
requires a license. Authorities may grant such a license under 7 (2) only if the
licensee takes every necessary precaution in the light of existing scientific
knowledge and technology to prevent damage resulting from the construction
and operation of the installation. On 18 December 1972 licensing authorities
granted a fi rst partial construction permit for the SNR-300 fast-breeder nuclear
power station in Kalkar.
The owner of a farm within a mile of the station sued to have the reactors li-
cense revoked because the plant failed to follow certain administrative proce-
dures under 7 (2). A local administrative court denied his claim and rejected
the argument that these procedural omissionsresulting in the permit to
build the plantcompromised his rights to life and personality. In view of the
awesome implications for public safety and the rights of citizens involved in the
production and recycling of plutonium, the North RhineWestphalia Adminis-
trative Court felt that Parliament had a duty to establish more concrete criteria
for the construction of fast-breeder reactors than those provided in the Atomic
Energy Act. The court of appeals referred this question to the Federal Con-
stitutional Court pursuant to its concrete judicial review jurisdiction. The
Constitutional Court found no constitutional infi rmity.]

Judgment of the Second Senate. . . .
B. II. Section 7 (1) and (2) of the Atomic Energy Act are compatible with the
BasicLaw.
178 chapter four
I. a. The Basic Law does not confer on Parliament total priority in fundamental
decision making. By insisting upon separation of powers it imposes limits on Parlia-
ments authority. The Basic Law relegates far-reaching decisions, particularly those
of a political nature, to other supreme constitutional organs. Examples include the
chancellors power to determine general policy guidelines (Article 65 (1)) and the
presidents authority to dissolve the Bundestag (Article 68) and declare a state of leg-
islative emergency (Article 81). . . . The Bundestag may check the exercise of such
powers by electing a new chancellor and bringing down the federal government. . . .
A monistic theory of power, incorrectly deduced from the principle of democracy,
which would confer on the Parliament a monopoly over decision making must not
undermine the concrete distribution and balance of political power guaranteed by
the Basic Law. Other institutions and organs of political authority do not lack demo-
cratic legitimacy merely because parliamentary delegates are the only officials elected
by direct popu lar vote. Legislative, executive, and judicial organs derive their institu-
tional and functional democratic legitimacy from Article 20 (2) of the Basic Law. . . .
Nevertheless, we are able to deduce from the principle of parliamentary democracy
that Parliament and its decisions do have priority vis--vis other branches of govern-
ment. We hold this to be a principle of interpretation transcending all concrete allo-
cations of authority. . . .
b. The case at bar deals with legislation, an area where the Basic Law specifically
allocates authority to the Bundestag. It follows from the principle of legality that
executive acts that significantly affect the freedom and equality of citizens must be
based on law.
2. Section 7 (1) and (2) of the Atomic Energy Act do not violate this principle. . . .
a. Separation of powers is not specifically mentioned in the constitution. Its va-
lidity, however, follows from the terms of Article 20 (3). The interpretation of this
principle has undergone change in recent years, especially in the light of its demo-
cratic component. Today our established jurisprudence makes clear that the legisla-
ture is obligated . . . to make all crucial decisions in fundamental normative areas,
especially in those cases where basic rights become subject to governmental regula-
tion. . . . To determine those areas in which governmental acts require a basis in law,
one must consider the subject matter and intensity of the planned or enacted
regulation, particularly taking into account the fundamental rights granted by the
Basic Law.
One must also use similar criteria to judge whether the legislature has established
the essential legal standards for the matter to be regulated as the constitutional re-
quirement of a specific enactment mandates and has not left this for the administra-
tion to determine. The constitutional requirement of a specific enactment (Gesetz-
esvorbehalt) means that only the legislature may enact statutory restraints upon
fundamental rights contained in the constitution where the language of the constitu-
tion expressly provides for such restraints.
b. The normative decision whether to permit the peaceful uses of nuclear energy
in the Federal Republic of Germany is a fundamental and essential decision in the
Separ ation of Powers 179
sense that a specific enactment is constitutionally required. Th is is so because of
[the decisions] far-reaching effects on citizens, in par tic u lar on their sphere of
freedom and equality, as well as on their general living conditions; and because of
the kind and intensity of regulation necessarily connected with it. Only the legisla-
ture has the authority to make such a decision. The same applies to regulations
fi xing the licensing of nuclear installations within the meaning of 7 (1) of the
Atomic Energy Act. . . .
The legislature has decided to promote the peaceful use of nuclear energy by
means of a formally enacted lawthe Atomic Energy Act. This decision includes fast-
breeder reactors. . . .
Contrary to the opinion of the courts that earlier ruled in this case, the legislature
was not bound to include in the Act a provision declaring that it was ready to accept
the risks possibly resulting from such a reactor. The legislature bears the political re-
sponsibility for the consequences of its decision. . . .
. . . In direct relation to whether this norm is unconstitutional because it is too vague
and thus fails to meet the substantive constitutional requirement of specific enactment
is the question whether 7 of the Atomic Energy Act contains essentials precise enough
to permit the licensing of the fast breeder. We must answer in the affi rmative. Section 7
(1) and (2) regulate all essential and fundamental questions of the licensing procedure
and fi x with sufficient precision the requirements for the construction, operation, and
modification of nuclear installations, including fast-breeder reactors.
c. . . . If the basis on which the legislature relied when enacting policy is called into
question by new, unanticipated developments, then the constitution may oblige the
legislature to reexamine whether the original policy is to be upheld in the light of
changed circumstances. . . .
It is constitutionally unobjectionable that the legislature has not yet examined
the fast-breeder technology and its possible consequencesfor instance, the issue
of atomic waste disposal. As the federal government has always emphasized, the
reactor to be built in Kalkar is only a prototype. The construction and operation of
this reactor do not mean a decision to use it on a large industrial scale. The reactors
purpose is rather to help to prepare for the decision, which the legislature will
make in the 1990s at the earliest. We cannot now foresee whether the court that
earlier ruled in this case is correct in assuming that the industrial use of the fast
breeder may lead to dangerous conditions and consequences. Suitable means may
be available in the future to counter the dangers to individual freedoms that the
ordinary court fears. Taking evidence on these questions would serve little pur-
pose since these issues are mainly related to possible political developments of the
most general nature.
Only the future will show whether this decision to implement breeder technology
will be useful or harmful. In this necessarily uncertain situation the legislature and the
government primarily have the political responsibility for making what they consider
pragmatic decisions within the confi nes of their respective authority. Under these
circumstances it is not the function of the courts to substitute their judgment for
180 chapter four
that of the political branches when assessing the situation because legal criteria for
such decisions do not exist.
Where reasonable doubts are possiblewhether or not the dangers feared by the
court that earlier ruled on the case will materializeall organs of the state, and
thus the legislature as well, have the constitutional duty to make every effort to rec-
ognize possible dangers in time and to counter them by constitutional means. If, in
the future, some probability of these dangers existsin the judgment of the . . . re-
sponsible political organsthe legislature would again have a duty to act. . . .
3. Section 7 (1) and (2) of the Atomic Energy Act do not violate the constitutional
requirement that laws be drafted with sufficient precision. . . .
b. . . . The provisions of the statute in question make use of undefi ned legal terms
such as reliability and necessary knowledge (unbestimmte Rechtsbegriffe)terms
that are not precisely defi ned. The analysis centers on whether such terms should be
void on account of their vagueness. The use of these terms is constitutionally permis-
sible. The degree of precision required depends on the nature of the matter to be
regulated and the intensity of the regulation. . . . In any case, such terminology has
been traditionally subject to interpretation by the legislature, executive, and
judiciary. . . .
Section 7 (2) [3] is also sufficiently precise. Th is provision relates to the field of
technical safety. Any legislative regulation of this field . . . must confront the par ticu-
lar difficulties that reside in the nature of the matter to be regulated.
When fi xing norms that keep abreast of scientific and technological developments
the legislature has a number of options available for making these developments le-
gally binding. These norms have one common feature: by using undefi ned legal
terms the legislature shift s the difficulties involved in giving these terms specific,
binding content and adjusting them to scientific and technological developments to
the administrative andshould litigation arisethe judiciary. Thus, administrative
authorities and courts have to make up the regulatory deficit incurred by the
legislature.
The law may, for example, refer to generally recognized technical rules. In this
case, agencies and courts may limit themselves to ascertaining the majority opinion
among practicing technicians when deciding whether or not the technical work ma-
terials may be brought into the stream of commerce. Th is criterion has the disadvan-
tage of lagging behind developing technology.
One way to avoid this drawback is to refer instead to the state of the art, which
does not require general recognition and practical confi rmation but makes it more
difficult for courts and agencies to establish and assess relevant facts.
Section 7 (2) [3] of the Atomic Energy Act goes a step further by referring to ex-
isting scientific knowledge, which requires the legislature to make even stronger ef-
forts to keep regulations abreast of scientific and technological developments.
It is within the legislatures discretion to use either undefi ned legal terms or pre-
cise terminology. Good reasons support the use of undefi ned legal terms in 7 (2)
[3]. The wording of 7 (2) [3] of the Atomic Energy Act, which is open to future
Separ ation of Powers 181
developments, serves as a dynamic protection of fundamental rights. It furthers the
protective purpose of 1 (2) of the Atomic Energy Act in the best possible way cur-
rently available. To fi x a safety standard by establishing rigid rules, if that is even
possible, would impede rather than promote technical development and adequate
safeguards for fundamental rights. Setting up rigid rules would be regression at the
expense of safety. We must tolerate some uncertainty of the law, at least where the
legislature would otherwise be forced to adopt impractical regulations or to refrain
from any regulation at all. Both alternatives would eventually impair the protection
of fundamental rights. . . .
These considerations apply equally to the so-called residual risk that must
beconsidered in the context of 7 (2) [3]. While this provision does not allow for
residual damage resulting from the construction or operation of a nuclear instal-
lation, it permits licensing even if the probability of future damage cannot be
precluded with absolute certainty. The law leaves it to the executive to deter-
mine . . . the kind and extent of the risk that may or may not be accepted. With
regard to the vagueness doctrine, which has the primary constitutional function
of defi ning when the executive is to act vis--vis the legislature, 7 (2) does not
violate the constitution especially in the light of the subject matter to be
regulated.
It follows from the protective purpose of 1 (2) and (3), as well as 7 (2) and other
provisions of the Atomic Energy Act, that the legislature wants all damage, danger,
and risks specific to the installation and operation of the reactor to be considered and
that the probability of an accident, which may be accepted when licensing an instal-
lation, must be as low as possible. Indeed, this probability must be lower as the type
and consequences of harm become more serious. By referring to existing scientific
knowledge and technology, the law forces the executive agency to observe the prin-
ciple of the best possible protection against dangers and risks. The legislature was not
bound, however, to defi ne with precision the possible kinds and factors of risk. . . .
The assessment of risks resulting from a nuclear installation depends upon a multi-
tude of circumstances, many of which are constantly evolving. . . . In the interest of
flexible protection of life and property the executive must assess and constantly ad-
just safety measuresa task it is better equipped to perform than the legislature. The
unavoidable degree of uncertainty in assessing such risks resides in the nature of
human knowledge.

The Citation Requirement (Zitiergebot). Emergency Price Control and Kalkar I are
primarily concerned with the requirement, set forth in Article 80 (1) [2] of the Basic
Law, that Parliament clearly delineate the content, purpose, and scope of delegated
regulatory competence in the relevant authorization statute. Article 80 (1) [3] im-
poses the citation requirement: Each statutory instrument shall contain a statement
of its legal basis. The Court strictly enforced this provision in the Chicken Regulation
Case featured below.
182 chapter four
A 1971 amendment of the Basic Law expanded the federations concurrent legis-
lative authority to include the protection of animals (Article 74 (20)).40 Pursuant
to that authority the Bundestag enacted the Animal Protection Act (Tierschutzge-
setz) with the purpose of regulating industrial animal husbandry through statutes
or regulations. A 1986 amendment to the Animal Protection Act elevated the legis-
lative schemes concern for animal welfare and mandated that this new perspective
be implemented through regulations. In par tic u lar, industrial animal husbandry
was placed under statutory commands to provide animals with feeding and
freedom-of-movement conditions appropriate to their breed and freedom from
pain and suffering (Animal Protection Act 2). The federal minister for food, agri-
culture, and forests (now the federal minister for food, consumer protection, and
agriculture) was empowered under the law to specify the details of the required
animal protection through regulations (Animal Protection Act 2a). An Animal
Protection Commission was created to advise the minister (Animal Protection
Act 16b).
At the same time, animal protection became a concern of European policy mak-
ers. Under the auspices of the Council of Europe, the European Convention for the
Protection of Animals Kept for Farming Purposes was concluded in 1976. Germany
ratified the Convention in 1978. The Bundestag legislation giving domestic force to
the Convention empowered the federal minister for food, agriculture, and forests to
implement the recommendations of the Conventions Standing Committee through
the promulgation of regulations. In 1986 the Council of the European Economic
Community also issued Directive 86/113, which established minimum standards for
the protection of laying-hens kept in cages (although the European Court of Justice
would invalidate the directive two years later).
Against the backdrop of this domestic and European policy activity, the federal
minister for food, agriculture, and forests eventually succeeded in issuing the 1987
Regulation for Keeping Chickens (Hennenhaltungsverordnung), which defi ned the
conditions in which laying-hens should be kept, especially ensuring minimum stan-
dards for feeding and freedom of movement. The preamble to the Regulation for
Keeping Chickens identifies 2a and 16b of the Animal Protection Act as the regu-
lations legal basis. But, in the long process leading to the promulgation of the regu-
lation, the federal minister for food, agriculture, and forests also had invoked the
Eu ropean Convention and the Council Directive as justifications for the regulatory
regime.

4.7 Chicken Regulation Case (1999)


101 BVerfGE 1

[In an abstract judicial review proceeding before the Federal Constitutional


Court, North RhineWestphalia alleged that the Regulation for Keeping
Chickens was incompatible with the Basic Law chiefly because it had run afoul
of the constitutions terms for the delegation of legislative competence. The
Separ ation of Powers 183
Second Senate agreed and focused, inter alia, on the citation requirement
Zitievgebot of Article 80 (1) [3].]

Judgment of the Second Senate. . . .
D. The Regulation on Keeping Chickensinsofar as it is still amenable to review
under constitutional law following the fi ndings in section C of this decisionis un-
constitutional in its entirety on account of its breach of the citation requirement laid
down in Article 80 (1) [3] of the Basic Law, and must therefore be declared void
pursuant to 78 (1) [1] of the Federal Constitutional Court Act.
I. According to the third sentence of Article 80 (1) of the Basic Law, a regulation
pursuant to federal legislation is to contain a statement of its legal basis. Th is requires
not only the enabling statute as such, but also the individual enabling provision of
that statute, to be specified in the regulation. If the issuer of the regulation intends,
according to his or her clearly expressed will, to make use of several bases of author-
ity, he or she must state these in full in the regulation.
1. Within the system of separation of powers under the Basic Law the citation re-
quirement serves the purpose of rendering the delegation of legislative competence
to the executive in its statutory bases understandable and reviewable. Under the
democratic and constitutional state principles, established by the Basic Law, legisla-
tion by the executive requires special authorization from the legislature. Article 80
(1) of the Basic Law lays down the requirements that these authorizations, and the
regulations issued on the basis of these authorizations, must satisfy.
The citation requirement in Article 80 (1) [3] of the Basic Law is intended not only
to make the statutory basis of authority identifiable and thus traceable. It is also de-
signed to make it possible to establish whether the issuer of the regulation actually
intended to make use of any statutory authorization at all when enacting the provi-
sions. The executive must, by indicating its basis of authority, ascertain the legislative
program assigned to it and remain confi ned to that program. It is, therefore, not only
a matter of whether the executive is actually operating within the limits of its dele-
gated legislative power; rather, the legislative authority invoked must result specifi-
cally from the provisions that the executive itself has cited.
In addition, Article 80 (1) [3] of the Basic Law serves to disclose the scope of au-
thority to the addressee of the regulation. Th is is intended to make it possible for the
addressee to check whether the regulation is in accordance with the enabling statute.
Article 80 (1) [3] of the Basic Law lays down in that respect a requirement as to form
based on the constitutional state principle, which is intended to make it easier to
verify whether, in issuing the regulation, the issuer has remained within the scope of
the authority conferred.
2. In light of the foregoing, a regulation that is based on several enabling provisions
must cite these in full and, where there is overlapping content between several enabling
provisions, they must be indicated together. There is no need to indicate in detail for
each provision of the regulation the discrete authorizations on which it is based.
184 chapter four
3. The citation requirement, above all, requires the individual provision of the stat-
ute, which contains the authority, to be specified. Only in this way can it be ensured
that the addressees of a regulation are able to identify its legal bases and verify their
observance by the issuer of the regulation.
4. A failure to have regard to the citation requirement violates an indispensable
element of democracy based on the constitutional state principle. Such a defect,
therefore, renders the regulation void.
II. 1. The Regulation on Keeping Chickens does not meet these requirements and is
therefore void. In its preamble, the challenged regulation mentions as a basis of authority
only 2a (1) in conjunction with 16b (1) [2] of the Animal Protection Act. Article 2 of
the Law of 25 January 1978 ratifying the European Convention of 10 March 1976 on the
Protection of Animals Kept for Farming Purposes in conjunction with the Recommen-
dation of the Standing Committee of 21 November 1986 for the keeping of laying-hens
of the species Gallus gallus, which, pursuant to Article 9 (3) of the European Convention,
has become effective for Germany and must therefore be implemented at the national
level, is not mentioned, although the Regulation is also based on it. It is true that neither
Article 2 of the ratifying law nor Article 9 of the European Convention stipulates that the
Recommendation must be implemented by a regulation having the force of law. On the
contrary, Article 16 of the Recommendation leaves it up to each contracting party to
implement the Recommendation by whatever method it sees fit. But, in the present case,
the Federal Minister for Food, Agriculture, and Forestry also sought, by means of the
Regulation on Keeping Chickens, to implement the most important elements of the
aforementioned Recommendation. That is undoubtedly clear from the explanatory
memorandum attached to the draft Regulation. If, according to the clearly expressed
will of the issuer of the regulation, the challenged regulation also had that objective,
then, in accordance with the meaning and purpose of Article 80 (1) [3] of the Basic Law,
the relevant basis of authority for this had to be specified in the text of the regulation.
The issuer of a regulation is not free to specify only one of several enabling provisions
on which the regulation is based. The issuer of the regulation does not fully demonstrate
legislative authority unless he or she indicates the other enabling provisions. By not
doing so, the issuer prevents or makes difficult a review as to whether the limits of his or
her power to legislate have been observed. It is not sufficient that the additional enabling
provision was specified in the official explanatory memorandum to the Regulation on
Keeping Chickens. Disclosure in such documents, the purpose of which is not directly
legislative, does not create the publicity required by the constitutional state principle.
2. In contrast, the omission of any reference to 21a of the Animal Protection Act
does not constitute a breach of the citation requirement in Article 80 (1) [3] of the
Basic Law. Section 21a of the Animal Protection Act is not, in itself, an enabling
provision, for the simple reason that it does not specify any addressees (Article 80 (1)
[1] of the Basic Law). Rather, it makes clear only that authorizations conferred else-
where may also serve to implement legal acts of the European Community.

Separ ation of Powers 185
Dynamic Interpretation and Legislative Facts. The Kalkar I Case, discussed ear-
lier, implies a more functionalist approach to delegation and separation of powers
than does Chicken Regulation. The formalism of the latter, however, is more in
keeping with the Courts early delegation jurisprudence.41 Kalkar I represents a
new development in German constitutional law, standing for what might be called
a dynamic interpretation of basic rights. Nuclear technology, the Court sug-
gested, is a fast-developing field with life-threatening implications; the legislature
has a duty, therefore, to keep abreast of such developments so that it may take
whatever mandatory mea sures are necessary to avoid the threat to a basic right.
Kalkar I grants to the legislature a certain amount of prognostic leeway (Progno-
sespielraum) in situations in which it cannot accurately predict the results of a
par tic u lar legal regulation. But the legislature must continue to monitor the situ-
ation to ensure that the regulation does not threaten vested rights under the Basic
Law.
The Courts approach in Kalkar I is one way of reconciling tensions between judi-
cial review and majority rule. While recognizing the political character of legislative
fact fi nding and the primacy of the legislatures competence in given subject areas,
Kalkar I holds out the strong possibility of judicial intervention if, in the Courts in-
dependent judgment, newly accumulated facts should seriously challenge the origi-
nal prognosis. The degree of judicial scrutiny in such cases depends on the particu-
larity with which Parliament examines the factual basis of a regulatory plan of
action.42 If this process is exacting, and if Parliament identifies the facts on the basis
of which it enacts law, taking care to protect constitutional interests, then the Court
will not invalidate the regulatory scheme merely because the legislature did not ac-
curately predict the result of its action. Still, in this situation, in which regulation
threatens constitutional interests, the constitutional state principle requires con-
tinuing parliamentary vigilance.
The seeds of the prognosis doctrine took root in some early equal protection
cases. For example, in the Widowers Pension I Case (1963)43 the Court sustained a
provision of the Social Security Act conferring benefits on a widower only if his wife
had been primarily responsible for the familys support, a limitation that did not
apply to a widow. Years later, however, married women constituted a significant por-
tion of the labor force, just as they had obtained greater equality under law within
the marital relationship. By 1975, when the widowers provision was once again chal-
lenged, the Court instructed the legislature to amend the statute in the light of these
changing social conditions.44
Returning to Kalkar I, we see that this decision, like that in the Mlheim-Krlich
Case (1979),45 is a part of the long-running political controversy in Germany over the
use of nuclear energy (as discussed in Chapter 3). At times, as the Kalkar II (1990;
no. 3.12) and Biblis-A (2002)46 cases show, the battle has taken the form of a federal-
ism dispute. Yet the principles of federalism and separation of powers are intertwined
in German constitutional law,47 as Kalkar I and Mlheim-Krlich demonstrate. These
cases chiefly address the separation of powers concerns posed by the federations
186 chapter four
regulation of the nuclear energy industry. For example, licensing procedures in the
field are complex, requiring a series of permits in the course of a plants construction
and activation.48 Which governmental institutions are best situated to strike the
balance between the required expertise, flexibility, and political accountability in is-
suing these permits? Governmental officials concerned about the slowness as well as
the legitimacy of the nuclear licensing process have advanced proposals ranging
from increased legislative participation in the process (even to the point of specify-
ing the details of site planning), on the one hand, to narrowing the scope of judicial
review over administrative decisions, on the other hand.49 Both proposals raise sepa-
ration of powers questions of their own, particularly the latter, since any limitation of
judicial review over administrative discretion may confl ict with the right of any
person under Article 19 (4) to repair to a court of law when his or her rights have
been violated by public authority.
Kalkar I, though it sustained the delegation in question, nonetheless adheres to
the prevailing German skepticism toward delegation by requiring a high threshold
of specificity with respect to legislative delegations. And yet, as the Court reminds
us in the Judicial Qualification Case featured below, dealing with the delegation of
authority at the state level, the doctrine of separated powers requires some elasticity
in its application when the three branches of government are spliced together in a
system of reciprocal and mutual restraint. What is important, according to the
Court, is that the core of each power be preserved from invasion by a coordinate
branch.

4.8 Judicial Qualification Case (1972)


34 BVerfGE 52
[An applicant for judicial office must pass two state examinations. The state of
Hesse required an examination fee. At the time of the present case, the fee for
the second judicial examination amounted to dm 200, the legal basis for which
was found in 42 (1) [3] of the Judicial Training Regulation of 10 September
1965. The Hessian state government issued the Judicial Training Regulation in
the form of a legal regulation, declaring 93 (2) [1] of the Hessian Judiciary Act
of 19 October 1962 to be the regulations legal basis. With regard to the issuance
of legal regulations, 93 provides that the state government is authorized to
issue legal regulations required for the implementation of this law and to issue
a judicial training regulation. Th is provision shall regulate the establishment of
examination centers, the composition of the board of examiners, examination
procedures, and the duration and division of the preparatory ser vice within
the framework of 5 (6) of the German Judiciary Act (a federal statute) as well
as matters relating to the repeated failure of applicants to pass the second
examination.
The complainant passed the second judicial examination in Hesse in 1966.
He had paid the required examination fee prior to taking the examination.
Separ ation of Powers 187
Later he brought suit before the administrative court in Frankfurt am Main,
claiming that the examination fee had been demanded without a legal basis.
He stated further that 93 (2) [1] of the Hessian Judiciary Act did not autho-
rize 42 (1) of the Judicial Training Regulation. Having lost on these claims
in the administrative courts, the complainant brought a constitutional com-
plaint to the Federal Constitutional Court arguing that uncertainty regarding
the legal basis of the Hessian regulations constituted a violation of Article 28
(1) of the Basic Law. Article 28 (1) guarantees that the state governments con-
form to fundamental federal constitutional principles and values, including
separation of powers. The Constitutional Court found no constitutional
violation.]

Judgment of the Second Senate. . . .
B. II. 2. As was determined by the decision of the Hessian State Constitutional Court
from 4 December 1968, 93 (2) of the Hessian Judiciary Act (HJA) is consistent with
Articles 107 and 118 of the Hessian Constitution. Therefore, 93 (2) [1] of the HJA
does not violate the principle of separation of powers, just as these Hessian constitu-
tional provisions do not violate the principle of the separation of powers that the
states must observe pursuant to Article 28 (1) [1] of the Basic Law. A state legislature
can give this constitutional principle, which binds the states, concrete expression in
its constitution in various ways. Article 80 (1) [2] represents only one of these possi-
bilities; it applies only to the domain of federal legislation. Articles 107 and 118 of the
Hessian Constitution contain a different way of concretizing this mandate, which, at
least as interpreted by the Hessian State Constitutional Court, also satisfies this con-
stitutional principle.
a. The separation of powers is a fundamental constitutional principle for the orga-
nization and function of the state. The Basic Law provides for a distribution of politi-
cal power, the harmonious cooperation of the three branches, and the moderation of
political rule that results from it. The principle of separation of powers is not, how-
ever, realized in pure form in the federal arena. Numerous interconnections and
balances of power exist. It is not an absolute separation of powers that we must glean
from the constitutional design of the Basic Law but, rather, a system of mutual con-
trol, restraint, and moderation.
Even if the separation of powers cannot be understood as meaning a clear-cut
separation of the functions of political power, we must retain the distribution of
weight among the three powers as outlined by the constitution. No branch may
achieve predominance over another power that was not intended by the constitu-
tion. Nor may one branch deprive another of the authority needed to fulfi ll its consti-
tutional tasks. The core functions of the different governmental branches cannot be
altered. Th is precludes one of the powers from relinquishing tasks whichaccording
to the constitutionare typically within its purview.
188 chapter four
The following considerations apply to the relationship between the legislature and
the executive. In a free democratic and constitutional system, Parliament has the con-
stitutional task of enacting laws. Only Parliament possesses the democratic legiti-
macy to make fundamental political decisions. To be sure, the Basic Law approvesas
illustrated by Article 80of delegated legislation to be enacted by the executive.
But the executive can legislate only within limits that are prescribed by the legislature.
Parliament cannot neglect its responsibility as a legislative body by delegating part of
its legislative authority to the executive without beforehand reflecting upon and deter-
mining the limitations of these delegated powers. If the legislature does not satisfy
this requirement, then it will shift unfavorably the balance of powers presupposed by
the Basic Law in the area of legislation. A total delegation of legislative power to the
executive branch violates the principle of the separation of powers.
b. We also derive this conclusion from the constitutional state principle insofar as
it requires that citizens be sufficiently able to evaluate the content of a regulation
based on statutory authority.
To the extent that a statute delegates the authority to issue regulations to the
executive, the legislative intent must provide . . . a guide for the content of the regula-
tion. The statute must give expression to the legislative intent. It must be clear
whether or not the executive confi ned itself to the express limits of the delegating
statute in issuing the regulation. If the content of the regulation goes beyond the leg-
islative intent, then the issuer of the regulation has overstepped the boundaries of its
delegated power. The regulation is then invalid because it has an insufficient legal
basis. It is not within the Courts authority to decide this case, which falls within the
procedural provisions of Article 100 (1). But it is within this Courts authority to
decide if the statutory delegation is compatible with the aforementioned principles.
c. Section 93 (2) [1] of the Hessian Judiciary Act does not transgress the boundaries
established by the principle of separation of powers and the constitutional state princi-
ple for delegating the authority to issue regulations. The legislature did not relinquish
its inalienable duty and responsibility. Section 93 (2) [1] preserves the fundamental
priority of the legislative intent. Th is intent, which should serve as a guiding principle
for the issuance of a regulation, is clearly recognizable. Section 93 (2) [1] of the Hessian
Judiciary Act only grants the issuer of the regulation supplementary authority to set
norms. Th is section does not contain a delegation of authority that is devoid of all con-
tent. The subject of the legal regulation to be issued by the state government is judicial
training. The German Judiciary Act and the Hessian Judiciary Act provide an initial
framework for the issuer of a regulation. The Hessian legislature particularly empha-
sizes examination procedures. Moreover, it is not regulating this subject matter for the
first time. The legal basis for the regulatory authority over judicial training is itself tied
to the existing norms concerning training regulations that were enacted on 27 Novem-
ber 1957. If an authorization refers to an area governed by prior regulations, then the
legislature is clearly stating that the existing principles are to guide the regulating en-
tity in issuing its rules. The legislature does not preclude any change; however, it does
expect the issuer of the regulation not to depart from concepts established by the
Separ ation of Powers 189
earlier regulations for no reason at all. Section 93 (2) [1] of the Hessian Judiciary Act is
therefore not written in such general terms that it would be impossible for the executive
meaningfully to comprehend the legislatures concept for this statute. Charging fees for
special administrative ser vices has long been a part of government activity. The princi-
ples of defraying expenses and proportionality are corrective guides for the issuer of
the regulation. The legislature may assume that the regulating body will observe these
principles. Thus, the fact that 93 (2) [1] of the Hessian Judiciary Act does not expressly
provide exact figures for a fee schedule does not jeopardize the fundamental separation
of powers and legislative independence vis--vis the regulating executive. The fee stated
in the regulation is clearly within the general limitations discussed above.

foreign and military affairs

Just as the U.S. Constitution allocates power over foreign affairs to both president
and Congress, the Basic Law apportions shares of this power to the executive and
the Parliament. The Basic Law, however, incorporates a more complex system of
checks and balances in the field of foreign relations as well as more detailed provi-
sions on foreign and military affairs than does the U.S. Constitution. Two funda-
mental points must be noted about the Basic Laws allocation of power in these
fields. First, Germanys foreign affairs power is concentrated at the federal level.
Article 73 (1) [1] of the Basic Law confers on the federation exclusive legislative
authority over foreign affairs. In addition, Article 87 (1) empowers the federation to
establish foreign and consular offices, just as Article 32 (1) authorizes it to conduct
relations with other states. Article 32 (3), however, qualifies this exclusivity; it per-
mits the Lnder, with the federal governments consent, to conclude treaties with
foreign states in policy areas over which the Lnder have exclusive jurisdiction. As
the Court noted in the Concordat Case (1957; no. 3.8), the federal governments treaty-
making power may be limited to the extent that it invades these reserved powers. The
federation nevertheless has primary responsibility over the broad field of foreign af-
fairs. Second, as the following survey reveals, the Federal Constitutional Court plays
a decisive role in defi ning the nature, scope, and limits of executive and legislative
authority over foreign and military affairs. In these fields, although speaking often
and assuredly, the Court largely employs the language of restraint. The Constitu-
tional Court nevertheless serves as an important referee in keeping the executive and
the Parliament within the boundaries of their rightful powers. What is most striking
from an American perspective, however, is the Courts deep involvement in monitor-
ing military policy, as several cases in this section show.

Distribution of the Foreign Affairs Powers. The foreign relations power falls mainly
into the domain of executive responsibility. Executive authority, however, is divided
between the chancellor and the president. Under Article 59 (1), the president concludes
treaties, receives envoys, and represents the federation in its international relations. But
190 chapter four
these roles are largely ceremonial. Effective power resides in the hands of the chan-
cellor. According to Article 63 of the Basic Law, he or she determines general policy
guidelines, although in Germanys parliamentary system the chancellor shares this
power with the cabinet. Indeed, the procedural rules promulgated under Article 65 of
the Basic Law require the chancellor to submit foreign policy matters of general im-
portance to the cabinet for debate and decision, but any decision taken in this field
falls within the scope of the chancellors general policy guidelines.
Parliament also is deeply involved in the process of making foreign policy. For one
thing, the executive and Parliament are far less distant from one another than in
the United States. Germanys top executive officialsthe chancellor and cabinet
ministersusually also are parliamentarians. Unlike his or her cabinet ministers,
however, the chancellor answers to and can be removed by Parliament, subject of
course to the requirements of Articles 67 and 68.50 In addition, Parliament has exten-
sive supervisory authority over foreign relations. The Basic Law provides for the
establishment of parliamentary committees on foreign affairs and defense (Article
45a of the Basic Law) before which federal ministers may be compelled to appear.
The Basic Law also establishes the parliamentary commissioner for the armed forces
(Article 45b of the Basic Law), who has the responsibility to safeguard basic rights
and . . . to assist the Bundestag in exercising parliamentary control over the Armed
Forces. There also is a standing Bundestag Committee on the Eu ropean Union
(Article 45 of the Basic Law). Under Article 44, fi nally, the Bundestag is obligated to
form committees of inquiry into any policy matterdomestic or foreignat the
request of one-quarter of its members. As this brief summary suggests, the Basic Law
incorporates a degree of executive accountability in foreign policy that is as high as
any likely to be found among the worlds constitutional democracies.

Executive Discretion, Parliamentary Consent, and the Treaty-Making Power. What


is the constitutional process by which Germany becomes committed to international
agreements in the fi rst place? Article 59 (2) of the Basic Law provides: Treaties that
regulate the political relations of the federation or relate to subjects of federal legisla-
tion shall require the consent or participation, in the form of a federal law, of the bod-
ies responsible in such a case for the enactment of federal law. Th ree constitutional
issues have arisen based on this language. First, there have been a number of cases
focused on determining whether a par ticular international agreement constitutes a
treaty that regulates the political relations of Germany and thus requires parliamen-
tary oversight. Second, the Court has also been asked to determine whether executive
actions, taken on the basis of a political treaty and its required legislation, exceed the
scope of the authority created by those instruments. A final issue of considerable im-
portance is the question of the judiciarys supervisory competence in these matters.
The Petersberg Case (1952) and the Commercial Treaty Case were the first to impugn
the executives refusal to seek parliamentary approval of a treaty. Petersberg involved an
executive agreement between the Adenauer government and the high commissioners
of the three Allied Powers. The treaty provided the new West German government
Separ ation of Powers 191
more freedom to manage its own affairs and to explore ways to bring Germany into a
European Economic Community. Social Democratic members of the Bundestag peti-
tioned the Constitutional Court, claiming that the agreement was a treaty within the
meaning of Article 59 (2) and thus invalid without Parliaments approval.
The Petersberg decision was significant, fi rst, because the Court granted a minority
parliamentary party standing to assert its right as a constituent unit of the Bundestag
and, second, because it defi ned a treaty within the meaning of Article 59 (2) as an
agreement concluded with a foreign state or an international agency of equal rank.
The Allied High Commission was regarded as less than that. The Commission did
not represent the three Allied governments as such but rather constituted an inde-
pendent organ of governance on German territory. Moreover, declared the Court,
the Basic Law is the constitution of a sovereign state and points toward Germanys
equal standing in the community of nations. Unlike a treaty as envisioned by Arti-
cle 59 (2), the Court reasoned, the Petersberg Agreement was the product of negotia-
tions between unequal parties because Germany was clearly in a position subordi-
nate to the occupying owers.51
As the text of Article 59 (2) makes clear, Parliament plays a crucial role in the treaty-
making process, but that role is confi ned to two kinds of treaties: those that regulate
Germanys political relations and those relat[ed] to subjects of federal legislation.
Treaties or agreements not falling into one of these two categories may presumably be
concluded at the discretion of the executive. But what constitutes a treaty that regu-
lates the nations political relations or touches on federal legislation, thus requiring
legislative branch approval? These issues arose early on in the following judgment.

4.9 Commercial Treaty Case (1952)


1 BVerfGE 372
[The Paris Trade Agreement of 1950 between Germany and France removed
trade restrictions on goods produced in the two countries, established currency
exchange regulations, imposed quotas on certain products, and laid down con-
ditions for the issuance of import and export licenses. The spd, led by Kurt
Schumacher, objected to the governments failure to seek the consent of the
Bundestag. The main constitutional issue before the Court was whether a com-
mercial treaty, altering the basic trade and fi nancial relations between the Fed-
eral Republic and another state, is a political treaty within the meaning of
Article 59 (2). The Court concluded that it was not.]

Judgment of the Second Senate. . . .
C. I. 1. A treaty does not become a political treaty within the meaning of Article 59 (2)
of the Basic Law merely because it deals quite generally with public affairs, the good
of the community, or affairs of state. If this were so, every treaty would be a political
192 chapter four
treaty, and the limitation contained in Article 59 (2) would be devoid of meaning. In
addition to the conditions just mentioned, a treaty must also directly affect the exis-
tence of the state, its territorial integrity, its independence, and its position or relative
weight within the community of states. Political treaties in this sense are those di-
rected at asserting, securing, or expanding one states position of strength vis--vis
other states. They include treaties relating to alliances and guarantees; agreements
on political cooperation; nonaggression pacts; treaties on peace, neutrality, disarma-
ment, and arbitration; and similar international agreements.
The history of Article 59 (2) permits an interpretation that does justice to con-
stantly changing conditions. In contrast to Article 45 of the Weimar Constitution,
the Basic Law has adopted broader language so as to enlarge the category of treaties,
beyond alliances, that require the approval of Parliament. . . .
Article 59 (2) of the Basic Law requires the participation of the legislative bodies
only for those treaties that regulate the political relations of the federation. Political
relations must substantially and directly affect the existence of the state, its position
and weight within the community of states, or the order of the community of states.
The content or purpose of a treaty within the meaning of Article 59 (2) must be di-
rected at the regulation of the political relations with foreign states. The treaty itself
must regulate or purport to regulate the political relations with foreign states; it is
insufficient when the treaty has merely a secondary, perhaps even unintentional or
unexpected effect on such relations. Even though a treaty may be of political signifi-
cance for the Federal Republicfor example, it may have an important bearing on
the internal political, economic, or social circumstances of the countrythat does
not make it a political treaty within the meaning of Article 59 (2) of the Basic Law.
The traditional teachings of public international law generally did not regard com-
mercial treaties as political treaties. Th is theory, however, does not in its generality cor-
respond to the reality of present-day international relations. In special circumstances a
commercial treaty may have a political character like that of a treaty of alliance; for
example, where the contracting parties, by concluding a commercial treaty, intend to
strengthen their economic position in competition with other states generally. In such
a case, nonpolitical market relations may become power relations. Today the conclu-
sion of a commercial treaty may possibly have more influence on a states position of
strength within the community of states than the conclusion of a treaty of neutrality, a
nonaggression pact, or a treaty of guarantee. In referring to power in this context, we do
not confine ourselves to the position of states in the struggle for political hegemony; we
refer generally to their relative weight within the community of states.
Whether a treaty is political in the above-mentioned sense can be determined
only in the individual case by reference to the special circumstances and the actual
political situation of the Federal Republic and the other contracting parties.
[The Court embarked on a detailed examination of the treatys provisions, fi nd-
ing that they were short-term measures for liberalizing trade and were not de-
signed to fi x West Germanys political position relative to other states. The
Separ ation of Powers 193
Court added that, in any event, the Federal Republic of Germany, still subject
to the occupying powers with regard to certain foreign policy matters, was not
at that time in a position to make political decisions. It stressed more particu-
larly that the treaty did not contain any provision indicating a desire on the part
of the Federal Republic to support European integration or to acknowledge
that the Saarland Territory was no longer part of Germany. The Court thus
denied the political character of the treaty.]
3. In a parliamentary democracy, legislation is basically reserved for Parliament,
with government and administration being assigned to the executive branch. For-
eign and trade policy also belong to the executive branch. According to Article 65
of the Basic Law, the federal chancellor determines, and is responsible for, general
policy guidelines. Within the limits set by these guidelines, each federal minister
conducts the affairs of his or her department autonomously and on his or her own
responsibility. There is a legal presumption in favor of the exclusivity of these ex-
pressly constituted competences of government. The Bundestag may not assume
these functions unless expressly permitted to do so. The legislatures sharing of
this exceptional authority of the executive has been established by Article 59 (2) of
the Basic Law within highly specified limits. . . . Above and beyond the two in-
stances in which Parliament participates in the treaty-making process, Article 59
(2) has not given the Bundestag a right to intervene in the governments zone of re-
sponsibility. Its role remains limited to the general constitutional powers of supervi-
sion. Rather than governing and administering in this field, the Bundestag controls
the government. Should it disapprove of the latters policies, it is empowered to ex-
press its lack of confidence in the chancellor (Article 67 of the Basic Law) and bring
down the government. But it is not able to conduct policy making of its own accord.
[When does a treaty relate to federal legislation, thus requiring parliamentary
approval in the form of a law? In answering this query the Court noted that the
Basic Laws list of enumerated powers conferred on the federation is not control-
ling. For example, the fact that money, coinage, and customs fall within the scope
of federal legislation does not mean that a treaty related to these matters requires
legislative approval. Rather, said the Court, parliamentary participation is neces-
sary when the federation assumes obligations that can be fulfi lled only through
the enactment of a federal law. In such a case parliamentary approval is neces-
sary to give democratic legitimacy to a policy requiring domestic application. In
the instant case, however, the executive was able to implement the commercial
treaty without legislative participation. Moreover, Parliament was disempowered
from acting in this instance because the powers reserved by the occupation au-
thority precluded any internal legislation on the trade and foreign exchange pro-
visions of the treaty. In the conclusion of its opinion the Court underscored the
federal governments primacy in the field of foreign relations.]


194 chapter four
NATO Strategic Concept Case. Nearly half a century after issuing its decision in
Commercial Treaty, the Court was again asked to consider the meaning of Article 59
(2) in the nato Strategic Concept Case (2001).52 The Bundestag representatives of
the Party of Democratic Socialism (pds), the postreunification successor to the
East German Socialist Unity Party (sed), complained that the Schrder govern-
ments assent to natos new Strategic Concept committed Germany to such a radi-
cally altered set of obligations under the nato regime that the document could be
characterized as nothing other than a fundamental amendment of the nato Treaty
ratified by Germany in 1955. Endorsed by the nato Heads of State and Govern-
ment at the April 1999 celebration of the alliances fi ft ieth anniversary, the pds
parliamentarians were particularly concerned with the new Strategic Concepts
abandonment of natos regional defense orientation and its embrace of a proac-
tive, out-of-area role in crisis response situations for nato. Their concerns were
underscored by the fact that natos bombing campaign against Serbia and Monte-
negro on behalf of the persecuted Kosovar Albanian minority was a month old at
the time the new Strategic Concept was announced in Washington, D.C. The
Kosovo campaign was widely viewed as a prototype of the expanded role proposed
for nato by the new Strategic Concept. Notably, natos use of force had been un-
dertaken in the absence of un Security Council approval. In the face of all this, the
pds parliamentarians argued that the significant change to the nato Treaty, like
Germanys commitment to the nato Treaty in the fi rst instance, should have been
submitted to the Bundestag for consent under the terms of Article 59 (2) of the
Basic Law.
The decision in the pds case turned, in part, on the Second Senates character-
ization of the new Strategic Concept as a consensus paper and a further devel-
opment and concretization of the nato Treaty, as opposed to an amendment of
the existing nato Treaty, which would have required parliamentary consent. Ar-
ticle 59 (2) [1] of the Basic Law, the Court explained, is not accessible to an ex-
pansive interpretation. Thus, the Court upheld the Schrder governments en-
dorsement of the Strategic Concept in the absence of parliamentary approval.53 In
doing so the Court appeared to be at ease with an incremental shift , favoring the
executive, in the balance of power between the government and the Bundestag in
matters of foreign affairs.54 Other democracies have been more inclined to favor
the executive on a broad range of issues, especially in the aftermath of the 11 Sep-
tember 2001 terrorist attacks in the United States. 55 Constitutional courts have
generally adhered to the view that the principle of separation of powers does not
require parliamentary oversight of the details of foreign policy making.56 The Fed-
eral Constitutional Court has taken a similar view. As the Court explained in nato
Strategic Concept:
The concretization of the [nato] Treaty, as well as the concretization of the integra-
tion program that was laid down together with the [t]reaty, is the task of the federal
government. With reference to the traditional concept of the state in the sphere of
Separ ation of Powers 195
foreign policy, the Basic Law has granted the government a wide scope for perform-
ing its task in a directly responsible manner. If only for reasons of the adequate dis-
tribution of functions, the role of the Parliament (as legislative body) and of the ju-
diciary in this field are restricted. Certainly, the authority concerning foreign affairs
that is entrusted to the federal government in this respect is not beyond parliamen-
tary control, and it is, like all exercise of public authority, subject to the obligations
set forth in the Basic Law. But an expansive interpretation of Article 59 (2) [1] of the
Basic Law, which includes the participation of the federal government in non formal
further developments of the treaty basis of a system of mutual collective security,
would not only result in legal uncertainty and would call the steering effect of the
Consent Act into question; it would also reduce the federal governments capability
of acting in the field of foreign and security policy in an unjustified manner; more-
over, it would result in a separation of state power that would not do justice to the
functions of the executive and the legislative power.57

Atomic Weapons Deployment Case. In the Atomic Weapons Deployment Case (1984)
the Green Party parliamentary representatives sought to vindicate the rightful
powers of the Bundestag under the treaty-making provision of Article 59 (2). The
Green Party maintained that by agreeing to install nuclear-equipped American in-
termediate missiles on German soil in the absence of statutory authority to do so, the
federal government indirectly infringed the rights of the Bundestag.58 In response,
the Court noted that an executive action, taken in conformity with existing treaty
obligationshere the nato Treatyrequires no new legislation under Article 59
(2). The challenged action would have survived constitutional analysis even if it had
been taken outside the treaty framework because the assent granted here would have
been classified neither as a political treaty nor as a matter of federal legislation
under Article 59 (2) of the Basic Law. The Court sought to clarify its understanding of
Article 59 (2) as it relates to the principle of separated powers:
Article 59 (2) of the Basic Law . . . allows the Bundestag some powers of participa-
tion in the making of foreign policy. . . . Yet Article 59 (2) confi nes this participation
to the two situations already mentioned: political relations or subjects of federal
legislation. . . . Thus, with respect to Article 59 (2), the Bundestag can neither com-
pel the federal government to refrain from, embark upon, or break off treaty negotia-
tions or produce treaty draft s of a par ticu lar content, nor prevent it from doing so;
nor can it force the executive to conclude a treaty that requires parliamentary con-
sent under Article 59 (2) or force the executive to terminate a treaty in international
law. . . . The Basic Law does not confer on the Parliament any power to initiate for-
eign policy or to control its administration. Nor can the provision be taken to mean
that, whenever an act of the federal government in international transactions regu-
lates the political relationships of the Federal Republic of Germany or affects ob-
jects of federal legislation, the form of a treaty requiring legislative assent must be
chosen, as the petitioner thinks.
196 chapter four
Th is strict demarcation of the powers allowed the legislative bodies under Article
59 (2) of the Basic Law is an element in the separation of powers set up by the Basic
Law. . . . But the concentration of political power, which would lie in assigning the
Bundestag central decision-making powers of an executive nature in foreign affairs
beyond those assigned to it in the Basic Law, would run counter to that structure of
apportioning power, responsibility, and control laid down at present by the Basic Law.
Th is is in no way changed by the fact that, at the federal level, only Bundestag members
are directly elected by the people. The specific order of the apportionment and balanc-
ing of state power that the Basic Law wishes to see guaranteed must not be under-
mined by a monism of powers falsely derived from the democracy principle in the
form of an all-embracing reservation on behalf of Parliament. Again, the principle of
parliamentary responsibility for the government necessarily presupposes a core area
of the executives responsibility. The democracy constituted by the Basic Law is a de-
mocracy under the constitutional state principle, and this means, in relation to the mu-
tual relations of the organs of state, above all a democracy with separation of powers.59

Judicial Restraint in Foreign Affairs. As nato Strategic Concept and Atomic Weap-
ons Deployment demonstrate, all questions arising under the Basic Laweven highly
politicized matters of foreign affairsare amenable to judicial resolution if properly
initiated under one of the various procedures authorized for the adjudication of con-
stitutional issues. The Federal Constitutional Court cannot avoid a decision by tak-
ing cover under an American-style political question doctrine.60 If no jurisdictional
issue disqualifies the Court from hearing a case on its merits, then it must decide. In
doing so, however, the Court often defers to the federations political judgment so
long as that judgment remains within the boundaries of legitimate discretion. Occa-
sionally, however, the Court will sustain a foreign policy decision of the political
branches but at the same time lay down rather stringent rules for carry ing it out.
A particularly dramatic example of this last situationwhere judicial activism
and restraint combined in an interesting mixinvolved the Basic Treaty between
East Germany and West Germany. In the early 1970s the West German government,
controlled at the time by the spd in coalition with the fdp, sought to normalize
the relationship between the two German states and between West Germany, the
Soviet Union, and other Eastern Eu ropean nations. The Basic Treaty was the cap-
stone of Chancellor Willy Brandts eastern policy (Ostpolitik). Under the treaty,
West Germany and East Germany agreed to respect each others right to self-
determination, to refrain from the threat or use of force, to improve trade rela-
tions, to cooperate in various cultural and technological fields, and to desist from
any claim to represent the other in the international arena. By any standard the
treaty qualified as the most crucial step taken by the two German states up to that
point in the postwar era.
Parliament had barely consented to the treaty when Bavaria petitioned the Court for
its nullification in an abstract judicial review proceeding. Bavaria argued that the treaty
contravened the Basic Laws precept of reunificationthe constitutional commitment
Separ ation of Powers 197
to pursuing national unity. In response, the Court sustained the constitutionality of
the treaty, declaring that flexibility and discretion were essential in meeting constitu-
tional goals, particularly in the area of foreign policy.61 Yet, to the chagrin of the ruling
coalition, the Court used the case to make wide-ranging pronouncements on the na-
ture of the West German state and the principle of reunification. These facets of the
East-West Basic Treaty Case (1973; no. 6.1) are discussed more extensively in Chapter 6.
The Courts meddling in the East-West Basic Treaty Case left no doubt that its word
would be the last, even in the sensitive area of international diplomacy. In fact, the
Court rebuked the federal government for trying to outmaneuver the First Senate,
before which the case was pending, by attempting to ratify the treaty before the
senate had rendered its decision.
With respect to national unity, the Court declared that the goal of reunification,
stated in the Preamble to the Basic Law, is legally binding on all constitutional or-
gans, each of which is required to keep the claim of reunification alive domestically,
to vigorously push it in foreign relations, and to refrain from any activity that would
undermine the goal of reunification. The East-West Basic Treaty Case is reminiscent
of the U.S. Supreme Court decision in Marbury v. Madison (1803)62 in one respect: It
handed the government a crucial victory but qualified that victory with a lecture on
the constitutional state principle and warnings about exceeding the limits of execu-
tive discretion.
The Rudolf Hess Case (1980) is an equally prominent example of this mix of judi-
cial activism and restraint.63 Hesss son fi led a constitutional complaint in 1980 charg-
ing the federal government with failure to take the steps necessary for securing the
release of his father from the Berlin-Spandau Military Prison where he had been in-
carcerated, alone, since 1967. (Hess had been sentenced to life imprisonment in 1945
by the Nremberg War Crimes Tribunal.) The complaint charged that the federal
governments reluctance to undertake negotiations with the Allied governments for
the purpose of liberating Hess from his isolated imprisonment violated several provi-
sions of the Basic Law (including the right to human dignity) and the European
Convention on Human Rights. The Court accepted the complaint, implying that it
was justiciable, but proceeded to write an opinion in which some scholars have found
the seeds of a political question doctrine.64
Hess underscores the broad discretion enjoyed by governmental organs in dealing
with political matters: The breadth of this discretion in foreign affairs has its basis in
the nature of foreign relations, said the Second Senate. Such events are not gov-
erned solely by the will of the federation, the Court continued, but rather are de-
pendent on many circumstances over which it has little control. In order to facilitate
the realization of the federations political goals within the framework of what is
constitutionally permissible . . . the constitution confers considerable discretion on
foreign affairs agencies in assessing the practicality and feasibility of certain policies
or actions. 65 The First Senate reached a similar conclusion in the Schleyer Kidnap-
ping Case (1977; no. 7.6). Whether the federation should negotiate for the release of a
hostage out of respect for the right to life secured by Article 2 (2) of the Basic Law or
198 chapter four
resort to other actions in dealing with terrorists is a matter wholly within the discre-
tion of the politically responsible organs of government.66 In mapping the boundar-
ies of the deference it would show to the federations political organs, the Arms De-
ployment Case, featured below, employed language similar to that used by the U.S.
Supreme Court in defi ning the political question doctrine.67

4.10 Arms Deployment Case (1983)


66 BVerfGE 39
[In 1983 several people fi led constitutional complaints against the deployment of
nuclear warheads on the West German territory. Th is deployment was to be
undertaken in accordance with a decision of the foreign and defense ministers of
natos member states. On 22 November 1983 the Bundestag passed a resolution
supporting the federal governments decision. The gravamen of the complaint
was that the missiles would endanger the life and health of the complainants in
violation of Article 2 (2) of the Basic Law. The complainants also advanced a sepa-
ration of powers argument. Article 2 (2) provides that the right to life and per-
sonal inviolability may be encroached upon only pursuant to a law. The Parlia-
ments failure to support deployment in the form of a statute, they argued, violated
this provision. The Court ruled that the complaints were inadmissible.]

Judgment of the Second Senate. . . .
A. II. 5. . . . The complainants base their constitutional complaints on the following
arguments: The quality of the new weapons and their deployment on European terri-
tory near the Soviet Union change the political-strategic constellation of chances and
risks in favor of the United States of America. There are several possible Soviet reac-
tions to this, each of which brings with it the risk of a destructive strike by the Soviet
Union against Pershing II and Cruise missile sites. Deploying these weapons, there-
fore, endangers the Federal Republics population. In addition, the Soviet Union has
announced the installation of a computer-controlled responsive-strike system that
may give rise to the use of nuclear weapons in the case of even limited military opera-
tions by the member states of nato. The possibility also cannot be precluded that an
atomic attack may be brought about by a technical failure in this system. Deploying
Pershing II and Cruise missiles is therefore incompatible with the states duty to pro-
tect life pursuant to Article 2 (2) [1] of the Basic Law. The constitutions decision to
provide for national defense does not authorize the impending destruction of the
Federal Republics entire populationor significant portions of it. It is true that the
competent government authorities have the basic responsibility to decide how to ful-
fi ll their duty to protect life, arising under Article 2 (2) [1] of the Basic Law. But they
cannot justify the installation of new weapons as a measure to protect life. The deploy-
ment of new weapons is also an inappropriate defensive measure because it neither
Separ ation of Powers 199
averts a Soviet attack with ss-20 missiles nor permits a fi rst strike aimed at disarma-
ment. The new weapons have no defensive value for the Federal Republic because the
Federal Republic has no control over their use. If the federal government believes it
must modernize its weapons, it can choose the less dangerous alternative of deploy-
ing new weapons at sea.
[Complainants raised several arguments: 1) the Basic Law permits defensive
weapons only; 2) Pershing II and Cruise missiles are not necessary for the
defense of the Federal Republic; 3) the missiles are more dangerous than alter-
native means of defense (e.g., sea-based missiles); 4) American control of the
weapons violates German sovereignty; and 5) deployment violates the Federal
Republics duties under international law.]
C. . . . The constitutional complaints are inadmissible.
1. To the extent that the complainants can be interpreted as assailing the conduct
of non-German public power in connection with the deployment of Pershing II and
Cruise missiles, their constitutional complaint is inadmissible. It is true that the pro-
tected sphere of human rights, including the basic rights and freedoms recognized
in the Basic Law, applies against every form of sovereign power. Nevertheless, under
Article 93 (1) [4a] of the Basic Law and 90 of the Federal Constitutional Court Act,
the remedy of a constitutional complaint can be brought only against actions of the
German state.
2. To the extent that they attack conduct attributable to German sovereign power,
it follows neither from the complainants allegations nor from other circumstances
that German state action caused the asserted threat and therefore would fall within
the realm of protected basic rights claimed to have been injured by an act of the Ger-
man state. . . .
Even accepting the complainants premise that deploying Pershing II and Cruise
missiles increases the danger of a Soviet nuclear attack against targets in the Federal
Republic, and therefore the risk to legal rights protected by Article 2 (2) of the Basic
Law, it is still questionable whether the asserted violation of complainants life and
limb by German sovereign power rises to the level of a real danger under the Basic
Law. In those cases where the Court has issued an opinion on the degree of interven-
tion necessary to endanger basic rights, it was possible to make statements about the
probability that the asserted dangers would actually occur with a degree of certainty.
In those cases the essential sources of risk were susceptible to investigation by scien-
tific methods, even if such methods were naturally conditioned upon and limited by
the state and type of knowledge at the time. In the present case, on the contrary, no
suitable, reliable process exists by which the judge might ascertain the increased de-
gree of danger to complainants life and limb. For, in dealing with the ultimate source
of this danger, we are dealing with the decisions of a foreign sovereign state in the
context of the general world political situation and changing political and military
relations. Under the prevailing circumstances we cannot make judicially verifiable
fi ndings concerning such decisions in advance. Moreover, the possible violation of
200 chapter four
basic rights asserted in this case does not fall within the protective purview of these
rights, since basic rights are aimed at German state action; this, however, is the
action complainants have attacked.
b. . . . Because we lack legally manageable criteria for deciding this case, the
Court cannot determine whether or not the German state action challenged by
complainants has any influence on decisions of the Soviet Union that may or may
not trigger the military measures (a preventive or responsive nuclear strike) com-
plainants fear. The federal organs responsible for the foreign and defense policy of
the Federal Republic must make such evaluations. Within the intended goals of the
Basic Law, especially as they have been expressed in the present context in Article 1
(2) and Article 24 (2), and within the scope of what is permissible under interna-
tional law, the constitutional authority of these organs for foreign and defense pol-
icy includes the authority to defend the Federal Republic effectively. It is within
their political decision-making power and responsibility to decide what measures
promise success. To the extent that unpredictable areas of risk remain, as will often
be the case, the political body constitutionally responsible for the decision must in-
clude these considerations in their deliberations and assume political responsibility.
It is not the function of the Court to substitute its opinions for the opinions and
deliberations of the competent political branch of the federation over and above
standard legal handicaps in this area. Th is applies equally for the question of how
the state should fulfi ll its affi rmative legal duty to protect basic rights in the sphere
of foreign policy and defense matters vis--vis foreign states. In the light of the fact
that the dangerous situation the complainants presume to exist depends signifi-
cantly on the political decision of a foreign sovereign state in the context of the
global political situation, the Court has no legally manageable criteria for judging
whether the German state action being challenged is the decisive factor in the cre-
ation of this situation, or whether it is at least contributory and therefore causal. It is
quite possible that the danger of a Soviet nuclear attack, as the complainants fear,
already existed before the federal government agreed to deploy the missiles, or will
come into being independent of the deployment. Nor do we have legally manage-
able standards to judge whether one may correctly say, based on empirical knowl-
edge, that the creation of the danger of a Soviet nuclear attack represents a change of
existing circumstances legally connected to the conduct that complainants
censure. . . .
D. Th is decision is issued unanimously as to the result, with one vote dissenting as
to the grounds of the judgment.

Military Affairs Power. The framers of the Basic Law insisted on a peace constitu-
tion. The preamble declares that, in promulgating a new constitution, the Germans
were inspired by the determination to promote world peace as an equal partner in
a united Eu rope. 68 Further evidence of the Basic Laws commitment to peace can
be found in Article 1 (2), which provides that the German people . . . acknowledge
Separ ation of Powers 201
inviolable and inalienable human rights as the basis of every community, of peace
and of justice in the world. 69 In addition, Article 9 (2) permits the prohibition of
associations whose aims or activities are directed against . . . the concept of inter-
national understanding, . . .70 Article 26 (1), fi nally, renders unconstitutional and
obligates the German government to criminalize acts tending to and undertaken
with intent to disturb the peaceful relations between nations, especially to prepare
for a war of aggression.71 To be sure, there are competing clauses that might be in-
terpreted as a hint that German rearmament was inevitable.72 But the Constitu-
tional Court did not get the chance to choose between the interpretive possibilities
of the original Basic Law. Chancellor Konrad Adenauers earliest attempt to rearm
West Germany was cut short when France withdrew from plans to create a Eu ropean
Defense Community, thereby rendering moot the case before the Constitutional
Court that raised these fundamental constitutional questions about Germanys
security profi le.73
The peace-oriented provisions of the Basic Law soon were overshadowed by con-
stitutional amendments pushed through by Adenauers supermajority government
in 1954. These amendments, particularly implicating Article 79 (1) of the Basic Law,
paved the way to West Germanys nato membership and remilitarization.74 Yet the
constitutional reform that facilitated Germanys rearmament did just as much to en-
trench Germanys postwar reticence about the use of force. Article 87a of the Basic
Law, for example, provided that the newly formed federal armed forces were empow-
ered to defend Germany and otherwise could be deployed only to the extent ex-
pressly permitted by this Basic Law.75 Thus, even as Germany rearmed and integrated
into the Western security framework, constitutional lawand the Constitutional
Court as the Basic Laws authoritative interpreterwould dictate and define the func-
tion of the armed forces.
Th rough the long years of the Cold War a number of social and political factors
conspired to cement the consensus that the German armed forces were to be used
exclusively for the purpose of defending nato territory. Surely the ever-present
memories of German atrocities and suffering in World War II hardened the Basic
Laws peace orientation, largely realized by this defense consensus. In any case, the
zero-sum implications of armed confrontation along the hot German front of the
Cold War made it a logical imperative that for over forty years, the [leadership of
the Federal Republic of Germany] interpreted the Basic Law to mean that German
military forces could only be used for defensive purposes on North Atlantic Treaty
Organization (nato) territory.76 Considering the Cold War stalemate in Europe,
this was as good as saying the German armed forces might never be deployed.

AWACS I Case. Few areas of constitutional law and public policy saw such dramatic
change after German reunification. Beginning with the awacs I Case (1994), in which
the Court considered the meaning of Articles 87a (2), 59 (2), and 24 (2) of the Basic
Law, Germany embarked on a decade-long process of radically reconceptualizing
the constitutional limits on the use of its armed forces. Th is reconceptualization was
202 chapter four
the product of several forces. First, it was an attempt to facilitate the greater geopo-
litical role Germany desired for itself, and would be expected to carry following re-
unification. Second, it was urged along by the strategic vacuum that briefly opened
up at the end of the Cold War, fleetingly creating the illusion that armed force might
be used in the new world order only for the purpose of promoting and maintaining
peace under the auspices of the United Nations. Th ird, when the center-left parties
(spd and Green) came to power near the end of the 1990s, the reconceptualization of
the use of the armed forces was aided by their surprising abandonment of the ob-
structionist pacifism they had long advocated while in opposition. In short, through-
out the 1990s Germany was seeking a more normal role for itself in the postCold
War world. As Georg Nolte explained: [T]he deeper issue was the self-conception of
a newly reunified Germanythat is, which lessons the country would draw from its
Nazi past and what future role it should play within Europe and in the world.77
At the end of the 1980s, against the backdrop of international pressures to involve
German military units in efforts to establish peace in the Persian Gulf, German po-
litical leaders still were virtually unanimous in maintaining that the Basic Law ruled
out any use of the armed forces except for the purpose of defense and within the
framework of the alliances covered by nato and weu (Western European Union)
treaties.78 Foreign Minister Hans-Dieter Genscher (who served successive cdu/
csu-led governments from 1974 to 1992), for example, held insistently to the view
that the Basic Law barred the use of German troops outside the nato-weu area,
even for peacekeeping purposes.
In 1990, however, supported by cogent scholarly commentary and in the face of
unified Germanys increased international influence, the consensus among political
leaders against the nondefensive use of military force began to break down. A major
confl ict erupted in the early 1990s when Chancellor Helmut Kohls government
decided to deploy military forces in connection with the international communitys
response to the spiraling violence and political disintegration in Yugoslavia. The
confl ict developed into one of the most important chapters in postwar German con-
stitutional politics, featuring legal warfare between the executive and Parliament
reminiscent of clashes in the United States between the president and Congress over
the extent of their respective authority in military affairs.79 The major difference be-
tween the German and American experiences, however, has been the willingness of
the Constitutional Court to intervene in such confl icts. An example of this judicial
role in the field of military affairs, awacs I, involved Organstreit challenges brought
by minority party blocs in the Parliament against the federal governments decision
to order the participation of German military units in the following military opera-
tions: natos monitoring of compliance with the un embargo against Serbia and
Montenegro; enforcement of a un resolution establishing a no-fly zone over Bosnia
and Herzegovina; and the un humanitarian mission in Somalia.80 The Organstreit
challenges asserted that each of these deployments constituted a violation of the
Basic Law. The full text of the relevant Basic Law articles illuminates our consider-
ation of the resulting Constitutional Court judgment:
Separ ation of Powers 203
Article 87a (2): Apart from defense, the Armed Forces may be employed only to
the extent expressly permitted by this Basic Law.
Article 59 (2): Treaties that regulate the political relations of the federation . . .
shall require the consent or participation, in the form of a federal law, of the bodies
responsible in such a case for the enactment of federal law.
Article 24 (2): With a view to maintaining peace, the federation may enter into a
system of mutual collective security; in doing so it shall consent to such limitations
upon its sovereign powers as will bring about and secure a peaceful and lasting
peace in Europe and among the nations of the world.
The centerpiece of the constitutional challenge to these deployments was Article
87a (2) of the Basic Law. Numerous arguments, many of them originating in the legal
academy, parsed every word of Article 87a (2), focusing heavily on the historical and
literal meaning behind the words employed and defense. Those parties and groups
challenging the validity of these military deployments read this language literally,
claiming that there could be no use of the armed forces inside or outside Germany
without explicit constitutional authorization. The federal government and its de-
fenders, for their part, argued that Article 87a (2) of the Basic Law was intended to
apply to the use of the armed forces inside, not outside, Germany.81
The formal constitutional battle began when fdp members of parliament asked
the Court to issue a preliminary injunction against the participation of German
awacs (Airborne Warning and Control System) aircraft over Bosnia-Herzegovina
as part of the nato operation. Th is was a highly unusual political move because the
fdp was a junior partner in the coalition government that ordered the deployment
the very coalition against which the constitutional challenge was leveled. In a 53
vote the Second Senate denied the injunction pending a full review of the constitu-
tional issues presented.82 A few weeks later, the senate unanimously rejected a sepa-
rate application, fi led by the spd, seeking a preliminary injunction against the opera-
tion in Somalia.83 These two cases, along with the action against Germanys
participation in the un embargo against Serbia and Montenegro, were consolidated
for a decision on the merits in awacs I.
In upholding the executives actions in all three instances, the Court gave sur-
prisingly little consideration to Article 87a (2), the provision of the Basic Law on
which legal scholars and other commentators had focused most of their attention.
Instead, the Court concentrated on Article 24 (2) and the meaning of the phrase a
system of mutual collective security. It ruled that both the un and nato treaties
constituted systems of mutual collective security within the meaning of Article 24
(2) of the Basic Law, and that the Bundestags approval of these treaties under Arti-
cle 59 (2) was accompanied by the implied constitutional authority to fulfi ll the
terms of these agreements, including, if necessary, the deployment of German mili-
tary forces.84
In a complex and divided opinion exceeding one hundred pages, the Second Sen-
ate handed down several rulings. First, the senate sustained the validity of the un
204 chapter four
Somalia action, although three justices dissented from the majoritys view that the
Bundestags original assent to the un Charter included an agreement to place
German troops under an international command.
Second, although the senate ruled unanimously that the deployment of German
military units within the framework of nato and the weu (Western European
Union) pursuant to un resolutions was compatible with Article 24 of the Basic Law,
the justices divided 44 over whether these treaties covered military actions beyond
the purview of nato and the weu. An even split on the Court allowed the chal-
lenged governmental action to stand. The dissenting justices (Limbach, Bcken-
frde, Kruis, and Sommer) argued that the nato awacs operation fell outside the
original purpose of nato. To validate the operation, therefore, the government
would need to amend the treaty accordingly and secure renewed parliamentary ap-
proval under Article 59 (2) of the Basic Law; anything less than this, said the dissent-
ers, would violate the rights of Parliament. The prevailing justices (Kirchhof, Grass-
hof, Klein, and Winter) insisted on a more dynamic approach to Article 59 (2) of
the Basic Law that would permit treaties to be adapted and applied to changing
circumstances without going through the laborious process of being formally
amended.85 With its decision in the nato Strategic Concept Case (2001) just a
few years later, the Court appeared to unanimously embrace this flexible view of
Article 59 (2).86
Th ird, the Court significantly qualified the victory it handed the federal govern-
ment by articulating constitutional principles that greatly limit the executives au-
thority to commit Germany to the use of force. Decades after the Adenauer govern-
ment proposed such an interpretation, the Court held in awacs I that Article 24 (2)
of the Basic Law impliedly authorized the federal government to fulfi ll its obligations
under treaties like the un Charter and the North Atlantic Treaty Organization (nato),
including the deployment of armed forces.87 More significantly, the Court held that
any deployment of the German armed forces for nondefensive armed operations
requires prior parliamentary approval.88 The Court could not point to a clear textual
basis for this significant constitutional limitation on executive authority regarding
the use of force.89 Instead, it derived the rule from constitutional history, pointing to
the Weimar-era requirement for a parliamentary declaration of war or peace.90
The Court also referred to the Basic Laws assignment of the militarys budget to the
Parliament.91 The Court further explained that the rule existed as an echo of Parlia-
ments constitutional prerogative over treaty making in the fi rst instance, a preroga-
tive required when obligations under a treaty call for dramatic measures like troop
deployments.92 The Court concluded by underscoring that the rule reinforced the
ever-fragile balance between almost plenary executive authority in foreign affairs
and the principle of checks and balances inherent in the Basic Laws scheme of sepa-
ration of powers.93
With its holding in awacs I the Court vindicated Parliaments right to decide on
the deployment of the military for armed operations. This right explains why German
policy makers commonly refer to the German armed forces, as Chancellor Angela
Separ ation of Powers 205
Merkel did in a speech at the 2006 Munich Security Conference, as a parliamentary
army (Parlamentsarmee).94

An Expanding Role for the German Armed Forces? In the decade following its
decision in awacs I the Court seemed less willing to enforce strict constitutional
limitations on the executives authority over military affairs.95 As noted earlier, the
Court turned aside constitutional challenges to the federal governments accession
to natos new, out-of-territory, and nondefensive strategic concept.96 The military
implications for Germanys participation in the new strategic concept were obvious.
At the time the new strategic concept was announced in 1999, nato was prosecuting
its bombing campaign against Serbia, an action that was neither defensive nor con-
cerned with nato territory. In spite of the fi rm assertion of parliamentary priority it
had announced in awacs I, and without regard to the very evident military implica-
tions, the Court was untroubled by the fact that the federal government had commit-
ted Germany to natos new strategic concept without consulting the Parliament.
The Courts decision in the nato Strategic Concept Case was foreshadowed by its
earlier decision in the Kosovo Case, which presented the Court with a challenge to
Germanys fi rst active role in a peacemaking operation [during ongoing hostili-
ties] since the Second World War.97 The un Security Council did not approve
natos 1999 bombing campaign against Serbia and Montenegro in response to
humanitarian atrocities being committed against Kosovar Albanians. The legality
of the campaign was questioned by international law scholars and peace activists
around the world, and natos member states asserted humanitarian intervention
as an emerging exception to the otherwise exclusive jus ad bellum of the un Char-
ter. In Germany, ironically, it was Foreign Minister Joschka Fischer who took the
lead in justifying the use of the armed forces before the Federal Constitutional
Court.98 Foreign Minister Fischer, the leading representative of the Green Party in
the spd-led Red- Green Coalition, had come to symbolize left ist pacifi sm. To the
dismay of the left , however, Fischer was fi lled with conviction on [the theme of
humanitarian military intervention]. When he got into office he took the funda-
mental Green commitment to antiwar principles, deft ly heaved it overboard, and
gave his official endorsement to Germanys participation in the nato effort
[against Serbia].99 Only the far-left pds remained to assert the Parliaments inter-
ests in a constitutional, separation of powers challenge to Germanys Kosovo
deployment.

4.11 Kosovo Case (1999)


100 BVerfGE 266
[The Bundestag embraced the humanitarian justification for the Kosovo de-
ployment and authorized the participation of German armed forces in the cam-
paign to an escalating degree in four successive resolutions. Representatives of
the pds, the same party that challenged the federal governments adoption of the
206 chapter four
1999 nato Strategic Concept, sought a temporary injunction against Germanys
Kosovo deployment. The pds representatives argued that the requirements of
Article 24 (2) of the Basic Law had not been met because the Court, in awacs I,
presupposed un authorization as a condition for any deployment pursuant to
Germanys obligations under a system of mutual collective security. In the ab-
sence of such un authorization, the pds representatives also argued that the
Kosovo deployment constituted a violation of Articles 25 and 26 of the Basic
Law. The Second Senate summarily dismissed the temporary injunction appli-
cation with a brief but meaningful reference to the constitutional standards that
would be implicated if the case were to be considered on its merits.]

Judgment of the Second Senate. . . .
The Basic Law empowers the federation to establish armed forces for purposes of
defense and to enter into systems of collective self-defense and mutual collective se-
curity. Th is also includes the power to take part with its own armed forces in opera-
tions that are provided for within the framework of such systems and take place ac-
cording to their rules. Still, the deployment of armed forces requires the prior
constitutive consent of the Bundestag. In this case, the Bundestag gave its consent.
On 16 October 1998 the 13th Bundestag acceded to military measures for the pre-
vention of a humanitarian catastrophe in Kosovo. That resolution authorizes nato
air operations, which are to be carried out in phases. In adopting that resolution, the
Bundestag was aware that, in all probability, the operation would be carried out with-
out authorization from the United Nations Security Council. The federal govern-
ment had expressly pointed out that it nevertheless considered a nato military de-
ployment to be justified. The Bundestag resolution of 16 October 1998, therefore,
covers the current nato air strikes.
The more recent resolutions of the 14th Bundestag have neither replaced nor mod-
ified the initial resolution of 16 October. They relate to specific individual questions:
to an air surveillance operation that had been agreed with Yugoslavia, and to the im-
plementation of a Rambouillet Agreement.
The later resolutions refer to the resolution of 16 October 1998 and, thereby, make
it clear that the 14th German Bundestag also stands by the resolution on a military
operation to prevent a humanitarian catastrophe.
Therefore, the rights of the German Bundestag have not been violated. Th is is true
whether Article 25 of the Basic Law (the primacy of customary international law) and
Article 26 of the Basic Law (securing international peace) grant the Bundestag any
rights of its own.

A year after the Kosovo deployment, the government of Chancellor Schrder under-
took a comprehensive overhaul of Germanys defense structure with the stated pur-
Separ ation of Powers 207
poses of improving the armed forces ability to secure and defend German territory
and contribute to operations around the world. Germany tested its new prepared-
ness by contributing significantly to natos ceasefi re monitoring mission in Mace-
donia in the late summer of 2001.
Chancellor Schrder was one of the fi rst world leaders to invoke the imagery of
war in the immediate aftermath of the 11 September 2001 terrorist attacks in the
United States, calling the attacks a declaration of war against the entire civilized
world.100 A month later Chancellor Schrder informed the Bundestag of his desire
to see Germanys defense and security policy change to permit it to more fully con-
tribute to the newly conceived global war on terror in a manner and degree equal to
Germanys postCold War role as an important European and transatlantic part-
ner, but also as a strong democracy and strong economy in the heart of Europe.101
Th is new role, Schrder explained, would have to include participation in military
operations for the defense of freedom and human rights, for the establishment of
stability and security.102 He made specific reference in his speech to Operation En-
during Freedom, led by the United States and endorsed by the un and nato, which
aimed at ousting Afghanistans Taliban government as a consequence of its long-
standing support of Islamic terrorists, particularly Al-Qaeda. In mid-November
2001, Schrder coupled his request for a Bundestag resolution authorizing the de-
ployment of German soldiers to Afghanistan with a vote of confidence in an attempt
to discipline the pacifist elements in the center-left parties constituting his coalition
government. Schrder won a very slender majority in the Bundestag on both matters
and Germany contributed a small number of special operations soldiers during hos-
tilities in Afghanistan, eventually increasing the size of its deployment as part of na-
tos International Security Assistance Force, which has provided security during the
rebuilding and democratization efforts in postTaliban Afghanistan. The Constitu-
tional Court approved the Parliaments general and open-ended authorization of
force deployments in support of natos ongoing Afghanistan operation.103 That de-
ployment continued for years to come, growing ever more controversial as German
casualties in Afghanistan increased and with the discovery in 2009 that the German
military had been involved in an operation that resulted in the deaths of dozens of
civilians.104

The Iraq War and the AWACS II Case. In the awacs II Case the Court put an end
to its permissive review of Germanys military activism. Perhaps not surprisingly, the
case that inspired the Court to fi rmly reassert separation of powers limits on the use
of force arose out of the U.S.-led invasion of Iraq in 2003. That war was extremely
unpopu lar in Germany. Preternaturally attuned to the popu lar mood, in a speech
inaugurating his 2002 reelection campaign Chancellor Schrder categorically ob-
jected to German participation in Americas imminent war. I say, we are ready for
solidarity, Schrder declared, but under my leadership this country is not avail-
able for an adventure. He went on: Pressure on Saddam Hussein, yes. We must
see to it that the international observers are able to do their work in Iraq. But
208 chapter four
playing around with war and military interventionI can only warn against this.
Th at is not to be undertaken with us.105 Some credited Schrders staunch opposi-
tion to a war in Iraq with salvaging his chances for a second term as chancellor,
even if it could not be cleanly reconciled with his earlier enthusiasm for German
military engagement, which had clearly betrayed the pacifi st core of his party. But
Marco Overhaus found a unifying theme in that Germanys military engagement
in the 1990s, just as much as its bristling objection to the American-led war in Iraq,
demonstrated a new self-confidence in Germanys foreign aff airs. As Chancellor
Schrder put it: [T]his Germany, our Germany, is a self-confident country.106
In spite of his strident opposition to President George W. Bushs invasion of
Iraq, Schrder nonetheless planned to send German awacs planes to Turkey,
which requested nato support in anticipation of a fl ailing, aggressive gesture from
Saddam Husseins threatened regime. As part of the nato-approved response to
Turkeys appeal for assistance, the Schrder government authorized the deploy-
ment of German soldiers to Turkey to participate in a nato awacs operation.
Parliament had not approved the deployment. Representatives of the fdp in the
Bundestag sought an order from the Court to temporarily enjoin German partici-
pation in nato action. The fdp argued that Germanys participation in the nato
assistance being provided to Turkey served to indirectly facilitate the invasion of
Iraq and could not be characterized as routine military surveillance fl ights. The
fdp argued that this was especially the case in the circumstances, including the
buildup to the American-led invasion of Iraq that started on 20 March 2003. As a
constitutional matter the fdp argued that deployment to such a precarious and
charged setting presented the considerable risk that German armed forces, al-
though operating exclusively in a defensive capacity in peaceful Turkish airspace,
might be drawn into the Iraqi confl ict. Th is, the fdp reasoned, was tantamount to
a deployment for an armed operation, for which the Court clearly had imposed
the obligation of parliamentary approval in its interpretation of Article 24 (2) in
awacs I.
The Court rejected the fdps motion for a temporary injunction in 2003. In declin-
ing to issue the temporary injunction, the Court explained that it felt itself obliged to
exercise self-restraint when asked to encroach upon the actions of other branches,
especially as regards foreign affairs. The Court explained that this restraint, when
considered in conjunction with the balancing of consequences at stake in a grant or
denial of the injunction,107 counseled against approving the application. The Second
Senate nonetheless underscored the gravity of the Bundestags right of approval in
the deployment of the German armed forces and it consciously left open, for a deci-
sion in the case on its merits, the matter of defi ning the nature and kind of military
engagement that would trigger the requirement of Bundestag approval. Five years
later it answered those questions when it ruled on the merits of the fdps challenge to
the 2003 deployment to Turkey.
Separ ation of Powers 209

4.12 AWACS II Case (2008)


121 BVerfGE 135
[In an Organstreit proceeding, the fdp asked the Court to rule that the federal
government had violated the rights of the Bundestag by failing to obtain Parlia-
ments approval for the awacs deployment over Turkey in 2003. The govern-
ment responded that parliamentary approval was not required under the terms
announced by the Court in awacs I because the deployment did not constitute
an armed operation but merely consisted of routine, defensive aerial surveil-
lance. The German armed forces, the government argued, were not expected to
be involved in the use of military force. Th is, the government said, was the ex-
tent of the Courts ruling in awacs I. In tone and substance, the Court strenu-
ously disagreed with the governments positions. In a decision upholding the
constitutional challenge, the Court further clarified the parameters of the sepa-
ration of powers between the Parliament and the executive (and by virtue of its
invasive review in the matter, of the judiciary, too) in military affairs.]

Judgment of the Second Senate. . . .
C. . . . The application is well-founded. The respondent should have obtained the ap-
proval of the Bundestag for the participation of German soldiers in measures of aerial
surveillance of Turkey from 26 February to 17 April 2003 as part of natos Opera-
tion Display Deterrence, by reason of the requirement of parliamentary approval for
the deployment of armed forces under the provisions of the Basic Law that concern
military affairs.
I. 1. a. The Basic Law has entrusted the decision as to war or peace to the Bunde-
stag as the body representing the people. Th is is provided expressly for the determi-
nation of a state of defense and a state of tension (Articles 115a (1) and 80a (1) of the
Basic Law) and in addition it applies in general to the deployment of armed forces,
including deployments in systems of mutual collective security under the terms of
Article 24 (2) of the Basic Law. From the totality of the provisions of the Basic Law
that concern defense and against the background of German constitutional tradition
since 1918, the Federal Constitutional Court has derived from the Basic Law a general
principle that every deployment of armed forces requires the mandatory approval of
the Bundestag, which, as a general rule, should be given in advance. The provisions of
the Basic Law that relate to the armed forces are designed not to leave the German
armed forces as a potential source of power in the hands of the executive alone, but to
integrate it as a parliamentary army into the constitutional system under democ-
racy and the constitutional state principle.
The requirement of parliamentary approval under the provisions of the Basic Law
that concern defense creates an effective right of participation for the Bundestag in
matters of sovereign decisions relating to foreign aff airs. Without parliamentary
210 chapter four
approval, a deployment of the armed forces is, as a general rule, not permissible
under the Basic Law; only in exceptional cases may the federal governmentin the
case of imminent dangerprovisionally decide on the deployment of armed forces
in order that the defense and alliance capacities of the Federal Republic of Germany
are not called into question by the requirement of parliamentary approval. In such an
exceptional case the federal government immediately must refer the deployment to
Parliament and at the request of the Bundestag recall the forces. Concomitantly, the
Bundestag may not order a deployment of forces without the cooperation and ap-
proval of the federal government. The requirement of parliamentary approval is a
reservation of consent that confers no power to initiate deployments. . . .
b. . . . At all events, the use of the German armed forces for mere relief ser vices and
the rendering of assistance abroad where soldiers are not involved in armed opera-
tions does not require the approval of the Bundestag. . . . These statements made in
the previous decisions of the Court do not exhaustively defi ne the scope of the re-
quirement of parliamentary approval under the relevant provisions of the Basic Law.
The literature on constitutional law discusses the phrase deployment of armed forces
and the question as to when German soldiers, in the meaning of the senates deci-
sions, are involved in armed operations. . . .
[The Court reaffi rmed the central elements of its decision in the nato Strategic
Concept Case (2001). First, it confi rmed the holding that Parliament must
approve, and therefore remains politically accountable for, Germanys treaty-
based commitments (within the terms of Article 59 (2) of the Basic Law). Sec-
ond, the Court emphasized the holding that the federal government has the
authority to shape the development of policy within the framework of Germa-
nys parliamentary-approved, treaty-based commitments. Th is doctrine, the
Court explained, did not resolve the question of the competence to authorize
military deployments.]
c. . . . The freedom of the federal government to structure its alliance policy does
not include the decision as to who, on the domestic level, is to determine whether
soldiers of the German armed forces will take part in a specific deployment that is
ordered by the decision-making entities of an international treaty alliance. By reason
of the political dynamics of an alliance system, it is all the more important that the
increased responsibility for the deployment of armed forces should lie in the hand of
the body that represents the people.
As this senate has already emphasized, the requirement of parliamentary approval
is an essential corrective to the limits of Parliaments assumption of responsibility in
the field of foreign security policy. When military force is exercised, the executives
broad sphere of influence in foreign affairs ends. When armed forces are deployed,
the Bundestag does not have the mere role of a body that only indirectly steers and
monitors the situation, but instead is called upon to make fundamental, essential
decisions; it bears the responsibility for armed foreign deployments of the German
armed forces. To this extent, the German armed forces are a parliamentary army,
Separ ation of Powers 211
despite its command structure, which places the military and operative leadership in
the hands of the executive. The Bundestag can preserve its legally relevant influence
on the deployment of the forces only if it has an effective right of participation in the
decision on the deployment of armed forces before the military operation com-
mences and then becomes essentially a question of military expediency.
The use of armed force means not only a considerable risk for the life and health of
German soldiers, but it also contains a potential for political escalation or, possibly,
involvement: every deployment is capable of developing from a limited individual
action into a larger and longer-lasting military confl ict, up to an extensive war. The
transition from diplomacy to force is accompanied by a corresponding change in the
proportions of the internal assignment of powers. The requirement of parliamentary
approval creates, in this way, a collaboration of parliament and government to decide
on the deployment of armed forces; this does not fundamentally call into question
the executives own area of action and responsibility for foreign affairs allocated to it
under constitutional law. For when it comes to deciding on the concrete particulars
and the extent of individual deployments, the federal government retains sole com-
petence, as it does for the coordination of the integration of forces in and with the
institutions of international organizations. . . .
d. . . . In view of the function and importance of the requirement of parliamentary
approval, its scope may not be defi ned restrictively. Instead, in the case of doubt
about the proper competence to authorize deployment, the requirement of parlia-
mentary approval must be interpreted by the Federal Constitutional Court in favor
of Parliament. In par ticu lar, when the requirement of parliamentary approval ap-
plies, it may not be made substantially dependent on the political and military evalu-
ations and prognoses of the federal government, invoking areas of freedom for the
executive to structure its policy; the executive may be granted a prerogative of as-
sessment only in urgent cases and thus only temporarily.
3. If German soldiers are involved in armed operations, this is a deployment of
armed forces that is permissible under the Basic Law only on the basis of the essential
approval of the Bundestag.
a. The decisive criterion for the requirement of parliamentary approval of the de-
ployment of armed forces under the Basic Law is their involvement in armed opera-
tions; this criterion is understood by the respondent to mean that involvement of
Parliament in the deployment of forces does not become necessary until, and only
becomes necessary if, German soldiers actually use armed force. Such an interpreta-
tion does not follow from the rules announced in the awacs I Case (1994). If the
requirement of parliamentary approval were understood so narrowly, then the Bun-
destag could not adequately exercise its legally relevant influence on the use of the
German armed forces. . . . It is not relevant for the requirement of parliamentary ap-
proval whether armed confl icts in the sense of combat have already taken place, but
whether, in view of the specific context of the deployment and the individual legal
and factual circumstances, the involvement of German soldiers in armed confl icts is
concretely to be expected and German soldiers are therefore already involved in
212 chapter four
armed operations. The Court based its conclusions in awacs I on this distinction
when it spoke of an involvement not in armed confl icts but in armed operations;
the very meaning of the words in the latter case does not imply that the situation must
actually develop into a combat scenario. Instead, the senate held that, to determine
whether there was involvement in armed operations in the individual case, the purpose
of the deployment and the deployment powers must be considered in more detail. . . .
b. The mere possibility that there may be armed confl icts during a deployment is
not sufficient for this. . . . The requirement of parliamentary approval does not, there-
fore, extend to deployments where there are no indications of a specific proximity to
the use of military force. For this reason, it is only the well-founded expectation of
involvement in armed confl icts that subjects a foreign deployment of German sol-
diers to the requirement of parliamentary approval. Th is well-founded expectation
differs in two ways from the mere possibility that there may be armed confl icts:
aa. Firstly, there must be sufficient tangible actual evidence that a deployment, by
reason of its purpose, the concrete political and military circumstances and the deploy-
ment powers, may lead to the use of armed force. For this to be the case, there must be a
concrete military situation of danger which has a sufficient factual proximity to the use
of armed force and thus to the involvement of German forces in an armed conflict. . . .
bb. Secondly, for a well-founded expectation that soldiers in the German armed
forces will be involved in armed conflicts, a particular proximity to the use of armed
force is necessary. For this to apply, the involvement must be expected immediately. . . .
cc. The question as to whether there is involvement of German soldiers in armed
operations is subject to full judicial review; in this connection, the federal govern-
ment is not granted latitude for assessment or prognosis that cannot be verified, or
that can be verified only to a limited extent, by the Federal Constitutional Court.
Such latitude is normally presumed to exist in the area of sovereign decisions relating
to foreign affairs, because only in this way can the fundamental priority in action
of the executive be enforced . . . Thus, the precondition for restraint in the intensity
of the review by the Federal Constitutional Court is missing. Since the Basic Law
gives the Bundestag a primary right of participation in the area of sovereign decisions
relating to foreign affairs, insofar as the requirement of parliamentary approval of
military deployments, there is positively no latitude for the executive to make deci-
sions apart from its competence in urgent matters. . . .
II. By this standard, the involvement of German soldiers in the aerial surveillance
of Turkey by nato from 26 February to 17 April 2003 was a deployment of armed
forces that, under the requirement of parliamentary approval, required the approval
of the German Bundestag. Although no combat operations took place, German
forces, in participating in this deployment, were involved in armed operations.
1. By carry ing out aerial surveillance of Turkey in nato awacs aircraft, German
soldiers took part in a military deployment in which there was tangible actual evi-
dence of imminent involvement in armed operations. . . .

Separ ation of Powers 213
AWACS II and Judicial Review. In awacs II the Court fi rmly reiterated that Parlia-
ment alone has the constitutional authority to decide on deployments involving
armed operations. The decision has several facets that merit closer scrutiny.
First, the Court clearly defi ned the pa rameters of this parliamentary right, not-
ing that the language chosen in awacs I was deliberately broader than the federal
government might have liked. Thus, parliamentary approval is necessary for deploy-
ments involving armed operations and not the narrower circumstances involving
an armed confl ict. At one extreme, the expansive defi nition the Court gave to the
phrase armed operations excluded deployments aimed at providing relief
ser vices or assistance abroad. At the other extreme, the right of parliamentary
approval is not triggered by the mere possibility of combat. The phrase armed
operation, the Court explained, extended the parliamentary prerogative to cir-
cumstances in which no combat was under way, as might be understood if the con-
trolling standard were armed confl ict. Instead, the broader standard armed
operation required parliamentary approval of deployments for which there is a
specific indication that proximity to combat creates the expectation that the Ger-
man military will immediately use armed force. Significantly, the Court found a
parliamentary presumption in the relevant constitutional framework. When in
doubt, the Court explained, Parliament has priority with respect to the deployment
of the German armed forces.
Second, the Court was at pains to cast its decision as a matter of checks and
balances. In tones ringing with German history, the Court said the use of force
should not come to serve the aggrandizement of a par tic u lar branch or organ of
government. The Court sought to neutralize the risk that a military deployment
might escalate a political struggle or become a tool in political brinksmanship.
Under the Basic Law, the Court insisted, military aff airs must be understood as a
collaboration between the Bundestag and the federal government. Thus, the
awacs II decision reaffi rmed the legislatures right to make the essential deci-
sion regarding the use of force. The case also acknowledged that, after a deploy-
ment decision is reached by the Parliament, the command and operational leader-
ship of the military resides with the executive. The Court went out of its way to
reassure the federal government that its decision was not meant to call into ques-
tion the responsibility for foreign aff airs the Basic Law assigns to the federal
government.
Th ird, the Court sought to justify its expansive framing of Parliaments right of ap-
proval in part by sounding a cautious tone as regards the political dynamics of an alli-
ance system. Perhaps as a subtle signal of unease over Americas apparent cynicism
toward international security institutions, the Court warned that Germany should
not be led into armed confl ict by foreign interests that could be framed as collective
security concerns. To avoid this, deployments must be authorized by the federations
popu lar branch.
Finally, the Court clearly signaled its intent to monitor and enforce Parliaments
priority on the question of military deployments. The question as to whether there
214 chapter four
is involvement of German soldiers in armed operations, the Court emphasized, is
subject to full judicial review. The Basic Law clearly gives the Constitutional Court
jurisdiction to hear challenges to the federal governments plans to deploy the armed
forces, chiefly through Organstreit proceedings. And, as the preceding discussion
reveals, the Federal Constitutional Court does not recognize a political question
doctrine,108 the basis on which the Supreme Court largely has avoided reviewing
challenges to executive authority over military affairs. Instead, the Constitutional
Court repeatedly has been called upon to judge the constitutionality of the federal
governments security agenda.
For decades, except in cases of self-defense, the deployment of the armed forces
was constitutionally unacceptable in Germany, a perspective thought by many to be
required under provisions of the Basic Law. Since 1994 and the awacs I Case, how-
ever, this argument has had little purchase in the Federal Constitutional Court,
amounting to a major shift in constitutional interpretation. The awacs II decision
did little to reverse this fundamental shift, although it restored the constitutional
limits on the use of force that seemed to be softening since the end of the Cold War.
Th is reaffi rmation of separation of powers chiefly vindicated the role of Parliament
vis--vis the executive in deployment decisions. By contrast, U.S. presidents have as-
serted that the constitutions war powers reside largely with the executive branch,
not Congress. Direct attempts by Congress to fulfi ll the intent of the framers . . .
and insure that the collective judgment of both the Congress and the President will
apply to the introduction of United States Armed Forces into hostilities have met
with limited success.109 The difference is largely due to the use of the political ques-
tion doctrine, which has enabled the American judiciary to evade war powers
questions.110

conclusion

Former Constitutional Court justice Konrad Hesse, the author of a major text on the
fundamental principles of the German Basic Law, wrote that
the allocation of various powers under the constitution permits formation of a
differentiated political structure geared to uniform cooperation and embodying the
states capacity to act through the formal activities of its [major] organs. Thus, sepa-
ration of powers reveals the details of the political structure, confers specified re-
sponsibilities, and has a rationalizing effect. Similarly, the separation of powers
specifies and coordinates the more active elements of political leadership and deci-
sion making as well as the more static elements of technical and administrative rule
making, and in addition safeguards the constitutional state principle in the political
arena. [Th is combination of structures and relationships] not only incorporates an
optimal measure of self-government but also facilitates adjustment to historical
change and is therefore capable of assuring relative continuity over time. In ratio-
Separ ation of Powers 215
nalizing, stabilizing, and limiting political power, separation of powers constitutes
the basic organ izational principle of the constitution.111
In the light of these remarks and of the materials contained in this chapter we can
begin to perceive an essential difference between separation of powers as understood
in Germany and separation of powers as known in the United States. In American
constitutional theory, as Madison wrote, each department should have a will of its
own,112 pitting ambition against ambition, as the veto power of the president might
suggest. To what purpose separate the executive and the judiciary from the legisla-
tive, wrote Hamilton in the same vein, if both the executive and the judiciary are so
constituted as to be at the absolute devotion of the legislative?113 In this model of
separated powersrooted as it is in Lockean and Hobbesian concepts of society and
human naturethe three departments are independent and coordinate with one
another.
The Basic Laws model of separated powers, on the other hand, draws on distinctly
German theories of the state. Accordingly, state authority (Staatsgewalt) represents
the unified will of the commonwealth as expressed in public policy formulated by
parties, elections, and political representation. Unless laws adopted by Parliament
offend some provision of the constitution, they represent binding decisions requiring
implementation by both the executive and the judiciary. Unlike the inevitable fric-
tion incident to the distribution of governmental power among [the] three depart-
ments found implicit by Justice Louis Brandeis in the American doctrine of separa-
tion of powers, the German doctrine assumes that all the branches will operate
under a condition of harmonious interdependence.
5
Political Representation and Democracy

Democracy, like federalism, separation of powers, and the constitutional state, is a fun-
damental principle of the German polity.1 The Basic Law (Grundgesetz) does not,
however, explicitly define the term democracy, which is the subject of considerable
commentary in German legal literature.2 The Federal Constitutional Court (Bundes-
verfassungsgericht) and most commentators have tended to define German democ-
racy by reference to related institutions and principles in the Basic Law. These include
elections leading to the formation of a representative parliament. For the most part, the
constitution leaves the details of the electoral process to the discretion of the Parlia-
ment, but the complicated electoral system established by law has received consider-
able scrutiny to ensure its conformity with a number of constitutional provisions. Po-
litical parties are given constitutional status in Germanys democratic infrastructure,
with the Federal Constitutional Court paying particular attention to the legitimacy
and efficacy of the political opposition, to the rights of political minorities, and to the
fairness of political financing. Germanys history also led the framers of the Basic Law
to seek to protect their new democracy from the enemies of political liberalism by pro-
viding a number of constitutional mechanisms to ensure democratic longevity and
stability. As this summary of the most fundamental facets of German democracy re-
veals, consideration of German political representation and democracy engages a com-
plex matrix of the following constitutional provisions: regular elections and the secret
ballot (Articles 20 (2), 38 (1), and 39 (1)); indirect representation (Articles 38 (1) and 28 (1));
majority rule (Articles 42 (2), 52 (3), 54 (6), 61 (1), 63 (24), 67 (1), 68 (1), and 121); equality
in voting for legislative representatives and equal access to public office (Articles 3 (1),
38 (1), and 33 (1) and (2)); free speech and press (Article 5 (1)); freedom of assembly and
association (Articles 8 and 9); a multiparty system (Article 21 (1)); and vigilance in
the protection of democratic institutions and principles (Articles 79 (3) and 21 (2)).3
Th is chapter organizes Federal Constitutional Court cases dealing with these
structures and procedures under the headings of parliamentary democracy, elections
and voting, the party state and political spending, and militant democracy.

parliamentary democracy

Article 20 (1) of the Basic Law defi nes the Federal Republic of Germany as a demo-
cratic state. Paragraph 2 of the same article reinforces this provision by declaring
that all state authority emanates from the people. The next sentence, however, em-
phasizes the representative character of the political system.4 The authority emanating
Po liti cal R epr e sen ta tion and Democr acy 217
from the people shall be exercised by . . . means of elections and voting and by spe-
cific legislative, executive, and judicial organs.5 The Basic Law establishes the Parlia-
ment (Bundestag) as the chief representative organ charged with transforming the
political will of the sovereign people into the governments and legislatures. 6 As
Michael Brenner explained:
In a representative democracy, some special body must effectuate the principle of
peoples sovereignty. Th is special body, representing the peoples will in the Federal
Republic of Germany, is the German Bundestag with its parliamentary representa-
tion. It is primarily through the Parliament that the people influence the exercise of
state power, which is their constitutionally guaranteed and ensured right through
the principle of peoples sovereignty. . . .
The Bundestag, as the central and also the only directly democratically legiti-
mated representative body, ensures that state power is actually based on the peoples
recognition and approval. It thus plays the decisive and leading role within the
structure of state powers.7
After reunification, the Bundestag left its West German home in Bonn to take up resi-
dence in the spectacularly redesigned Reichstag building in Berlin. Th is had the ef-
fect of directly acknowledging Germanys troubled history with parliamentary de-
mocracy.8 Nonetheless, one of the Reichstag buildings many poignant artifacts
attests to the unequivocal link between the people and their representative body; the
words To the German People (Dem Deutschen Volke) are prominently inscribed
in the stonework above the main entrance.
Germany is not a parliamentary democracy in the British sense of parliamentary
supremacy. The Basic Law, as interpreted by the Federal Constitutional Court, con-
trols Parliament as well as every other branch of government. The Basic Law, how-
ever, only addresses the functions and character of the Bundestag in general terms,
leaving many of the relevant details to this chambers discretion.9
As noted in Chapter 4, Germany shares with Britain and other parliamentary sys-
tems the close nexus between the federal government and the parliamentary majority,
which elects and can remove the chancellor. In Germany, it is also typical that the
chancellor and his or her government ministers are also members of the Bundestag.
This close nexus uniquely implicates the parliamentary minority in the constitutional
separation of powers and the representation of the German people. The balance of par-
tisan power in the Parliament, with its attendant consequences for governing authority
and accountability, makes competition among political elites within the Bundestag a
particularly important facet of German democracy. As Georg Ress observed, the in-
terest of the majority party in supporting the government will often make it impossible
for it to serve as an effective counterpart. This is reflected in the Basic Law, where the
parliamentary rights to control the executive are often formulated as minority rights.
[For example, it] takes only one fourth of the members of the Bundestag to establish an
investigative committee (Art[icle] 44 [(1)]).10 Volker Rben argues that Article 44 of
the Basic Law is one of the most litigated institutional provisions of the constitution
218 chapter five
because of the political significance and sensationalism of parliamentary investigations
of the government. The obvious interest of the parliamentary majority will . . . be,
Rben explains, to protect its [g]overnment against the opposition.11
The Federal Constitutional Court frequently has been called upon to protect the
interests of opposition and minority parties in the Bundestag, particularly with re-
spect to their participation in and influence over the important work of parliamentary
committees. It has done so with clarity and authority by blocking the parliamentary
majority from adding matters to an investigative committees mandate,12 by limiting
the executives privilege to withhold evidence from investigative committees or mem-
bers or Parliament,13 and by balancing an individuals right to privacy against the im-
portant constitutional interest in an investigative committees effectiveness.14
The Minority Rights in Investigative Committees Case is another in this line of cases.
The Court showed great concern for minorities in parliamentary investigations, di-
rectly linking the minoritys function in that context with the essence of German
democracy. The case arose when, a year after losing the 1998 federal election, Helmut
Kohl found himself embroiled in a party fi nancing scandal that would tarnish his
reputation and force him to resign both his seat in the Bundestag and the honorary
chairmanship of his party, the Christian Democratic Union (cdu). It was a sudden
fall from grace for (to that point) Germanys longest-serving chancellor and the man
many Germans regarded as the father of reunification. A criminal investigation re-
vealed, and Kohl ultimately admitted, that he had accepted secret, undeclared dona-
tions totaling several million Deutsche Marks (dm) for his party between 1993 and
1998. Th is was a violation of Germanys strict party fi nancing laws and perhaps the
constitution.15 Kohl refused to identify the donors, explaining that he had given his
word that he would protect their confidences. In part, the investigation pointed to-
ward political kickbacks associated with the sale of arms to Saudi Arabia and the sale
of a former East German oil company to the French company Elf Aquitaine.
The newly elected center-left majority in the Parliament, including the Social
Democratic Party of Germany (spd) and the Green Party, easily satisfied the one-
fourth qualified minority rule of Article 44 (1) to convene a majority inquiry (En-
qute) committee to investigate the party fi nancing allegations against the former
Kohl government and the cdu. The committees initial mandate was later expanded
to cover any irregularities in party fi nancing. Under this broader mandate the cdu
committee members, although in the minority, pressed to have the committee inves-
tigate allegations of spd corruption. Not surprisingly, the committees spd majority
refused to honor the requests for spd-related evidence, arguing that the minority
was seeking to disrupt, undermine, and delay the committees work.

5.1 Minority Rights in Investigative Committees Case (2002)


105 BVerfGE 197
[The cdu minority turned to the Federal Constitutional Court, alleging viola-
tions of Articles 22 (1), 38 (1), and 44 (1) of the Basic Law. The Court made the
Po liti cal R epr e sen ta tion and Democr acy 219
requested temporary injunction moot by moving quickly to rule on the merits.
But fi rst the Court had to resolve the difficult question of the applications ad-
missibility. In fi nding the application admissible the Court departed from an
earlier decision in which it ruled that its Organstreit jurisdiction did not extend
to intra-parliamentary disputes but applied only to disputes between the organs
of the Federation. Contradicting this position in Minority Rights, the Court
concluded that a parliamentary minority (of at least one-fourth of the parlia-
mentarians) was especially empowered by Article 44 (1) of the Basic Law to
make use of the Bundestags investigative apparatus and that this authority was
accompanied by a right to seek the protection of this authority before the Fed-
eral Constitutional Court. Th is was true, the Court held, even in the present
case where it had been the parliamentary majority that invoked Article 44 (1)
for the creation of the committee. Having stretched to seize the matter, the
Second Senate ruled for the cduthe parliamentary minorityon the sub-
stance of the application.]

Judgment of the Second Senate. . . .
C. The applications are well-founded. . . . The respondent infringed the applicants
rights under Article 44 (1) [1] of the Basic Law insofar as, without sufficient justifica-
tion, it rejected motions by the applicants to hear evidence and did not implement
motions to hear evidence that had already been passed.
I. The committees minority, which is qualified and entitled to have the committee
established pursuant to Article 44 (1) [1] of the Basic Law, has the right to have evi-
dence taken in the committee. The minority establishing the committee has a right
to have its motions to hear evidence considered by the committees majority; this
also applies to the minority that potentially could have called for the establishment
of the investigative committee. The minoritys motions to hear evidence must be
granted unless the right of motion is being exercised inappropriately or improperly.
The committee, that is, the committees majority, must give understandable reasons
for the rejection of a motion to hear evidence raised by the committees minority. In
this respect, the Federal Constitutional Court has jurisdiction to undertake only a
limited review of reasonableness. Resolutions to hear evidence that have been passed
on a motion of the minority also must be implemented by the committee. Neverthe-
less, control over the proceedings lies in the hands of the committees majority in
each case. The majority decides on the order in which evidence is to be heard, having
regard to the rights of the qualified minority, and must ensure, by appropriate rules
of procedure, that the selection remains balanced, even where there is a risk of
discontinuity.
1. Article 44 (1) [1] of the Basic Law confers on the Bundestag the right to establish
investigative committees. Parliament is thereby given the opportunity, without
the involvement of the government or administration, to obtain the information it
220 chapter five
regards as essential for the fulfi llment of its tasks. The main focus of the
investigations invariably is on parliamentary control of the government and the
administration.
The right of investigation under the system of constitutional monarchy primarily
was an instrument of the elected parliament against the monarchist executive. Under
the conditions of the parliamentary system of government, however, the right of in-
vestigation largely has developed into a right of the opposition to have facts clarified
independently of the government and its parliamentary majority. The Basic Law,
therefore, has conferred on the Bundestag the right to establish an investigative com-
mittee and it has made this a duty for the majority if one-quarter of the parliamentar-
ians request it. Article 44 (1) [1] of the Basic Law protects minorities in order to
achieve a balance between parliamentary majority rule (Article 42 (2) of the Basic
Law) and qualified minority rights (Article 44 (1) [1] of the Basic Law).
a. The regulatory content of Article 44 (1) [1] of the Basic Law stretches beyond the
duty of the Bundestag to establish an investigative committee on a motion of one-
quarter of its members. The tension between majority and qualified minority that the
constitution accepts at the time the committee is established continues in the inves-
tigative proceedings. Irrespective of what rights of participation already flow from
ones status as a member of parliament (Article 38 (1) of the Basic Law), the members
of a parliamentary party bloc (Fraktion) also may rely on the minority right en-
shrined in Article 44 of the Basic Law. Within the scope of the terms of reference of
the investigation and subject to the majority principle, the minority seeking to es-
tablish a committee must be able to influence the decision on taking evidence.
While the scope of this right of influence cannot extend further than that of the
majority, it must be regarded in principle as equal in terms of weight. The majority
and the qualified minority must be able to assert their ideas of what constitutes
proper clarification. That interpretation, recognizing the meaning and purpose of
Article 44 (1) [1] of the Basic Law, is not contrary to the intention of the framers of
the constitution. . . .
b. The right of the qualified minority to reasonable consideration of its motions to
hear evidence also exists in the context of a majority inquiry (Enqute). In order to
secure enjoyment of the procedural rights under Article 44 (1) [1] of the Basic Law,
the minority entitled to establish the inquiry does not have to be constituted with an
investigation motion of its own. Were this required by the constitution, the minority
entitled to establish an inquiry would counter practically every majority inquiry with
a minority inquiry of its own, either in parallel to the establishment of the majority
inquiry or later in the event of a confl ict over the taking of evidence. That would give
rise to a concurrence of investigative committees, which would be necessary only for
the purpose of safeguarding rights. But the parallel committees would be politically
undesirable because they would be concerned with overlapping or identical factual
situations. As a consequence of this, evidence would be taken twice over, witnesses
would have to testify before two investigative committees and fi les and other papers
would be subpoenaed by both committees concurrently. Such a two-track approach
Po liti cal R epr e sen ta tion and Democr acy 221
to an investigation of a matter of public concern, considered necessary by the major-
ity and the opposition minority in equal measure, would lead to a fragmentation of
parliamentary business and to the risk of mutual obstruction in the fulfi llment of in-
vestigative tasks.
The minority potentially entitled to establish an investigation, therefore, retains
its procedural rights under Article 44 (1) [1] of the Basic Law even if it initially voted
against the establishment of the investigative committee. There can be many differ-
ent reasons for opposing a politically unwelcome inquiry but later wishing to cooper-
ate with it. Nor can it be denied that there is a risk that the right of investigation, in
the hands of the majority and in agreement with the government supported by it,
could be directed against the parliamentary opposition. In that case the qualified
minority must remain free to oppose the establishment of the investigative commit-
tee andafter the failure of such effortsto take an active, influential role in the
committee in order to secure a balanced clarification from its point of view.
2. Motions to hear evidence of the minority potentially entitled to establish the
investigative committee must be complied with, provided that the right of motion is
not abused. An order to hear evidence creates clarity, which is part of the committees
agenda of clarification; this also applies to the formal rejection of a motion to hear evi-
dence. The rejection by the majority of a motion to hear evidence of the qualified
minority may not be based on the majority principle of Article 42 (2) of the Basic Law
alone. Rejection requires a statement of reasons. The committees majority may re-
ject motions to hear evidence of the qualified minority if it comprehensibly demon-
strates that the minority is inappropriately exercising the rights conferred on it. Th is
may be the case, for example, if the requested taking of evidence lies outside the in-
vestigations terms of reference or is unlawful, or if it is intended merely to delay or is
manifestly improper.
Having regard to parliamentary autonomy and to the par ticu lar nature of the in-
vestigatory procedure as an instrument for the clarification of issues in the context
of political controversies, the Constitutional Court must confi ne itself to examining
whether the statement of reasons given by the majority is comprehensible and whether
the framework of assessment made available to the majority by procedural auton-
omy, in par ticu lar in interpreting the investigations terms of reference, has been uti-
lized in a reasonable manner. Th is may be lacking if the reasons given for rejection do
not reveal the documentary evidence for the inappropriateness of the rejected mo-
tions to hear evidence or if an interpretation of the investigative mandate is not un-
derstandable using legal methods of interpretation.
3. The committee must implement orders to hear evidence once they have been
made, even if they have been requested by a qualified minority. But procedural con-
trol over the order of presentation of evidence and over the suitability of dates fi xed
lies in the hands of the committees majority in each case. It must decide on the imple-
mentation of orders to hear evidence and ensure that the investigations terms of refer-
ence can be fulfi lled. Yet, the majoritys procedural control is restricted by the right of
the qualified minority to reasonable participation. If, in the view of the majority, not all
222 chapter five
motions for evidence can be handled, it must ensure by means of appropriate rules of
procedure, as contained in, for example, 17 (3) of the Parliamentary Investigatory
Committees Act that the minority is reasonably taken into consideration and that its
views are heard.

The Rights of Minority Parties. The Schleswig-Holstein Investigative Committee Case
(1978)16 is one of the most prominent of the many cases in which the Federal Consti-
tutional Court has been asked to vindicate the participatory rights of minority par-
ties, particularly parliamentary parties opposing the dominant coalition.17 In
Schleswig-Holstein Investigative Committee, unlike Minority Rights, the Federal Con-
stitutional Court served in its special capacity as the constitutional court for the state
(Land) Schleswig-Holstein18 and, thus, was charged with interpreting the parliamen-
tary investigative committee provision of the Schleswig-Holstein Constitution
(Article 5). The case involved the opposite of the situation in Minority Rights. Instead
of a parliamentary minority being given the authority to contribute to the direction
and focus of an investigative committee created by the majority, in Schleswig-Holstein
Investigative Committee the Court limited the majoritys authority to manipulate an
investigative committee constituted by a parliamentary minority. The Courts opin-
ion points out that an effective parliamentary opposition is an important aspect of
the principle of separation of powers in a political system in which the same coalition
controls both legislature and executive. For this reason, the Constitutional Court
has vigilantly defended the rights of opposition parties unless such parties are found
to reject the central core of the constitutional order.
Along with the right of a qualified minority to constitute an investigative commit-
tee, the Federal Constitutional Court has considered a number of other issues in-
volving the role of minority parties in the functioning of the Bundestag and German
democracy more broadly. The remarkable rise to prominence of the Green Party
provided more than a few of these cases. The Green Party, which burst onto the West
German political scene in the federal election campaign of 1983,19 tested Parliaments
capacity for tolerating a party that opposed the established parliamentary parties on
almost every significant public policy issue and whose unconventional political style
antagonized most of the established parties. In 1983, several ecological, antinuclear,
feminist, and peace groups organized themselves into a loose alliance known as the
Greens, a grassroots countercultural movement disillusioned with politics as usual
and the corruption of the established parties. They opposed the installation of nu-
clear missiles in Germany, the Federal Republics participation in military alliances,
the multiparty political consensus that had been achieved in many areas of domestic
policyincluding the agreement to push forward with the development of nuclear
energyand even the German system of parliamentary representation.
Running on this platform, the Green Party won more than 5 percent of the votes
in the 1983 federal election, entitling it to twenty-seven seats in the Bundestag. More
established politicians viewed the new delegation with amusement and scoffed at its
Po liti cal R epr e sen ta tion and Democr acy 223
outlandish proposals and behavior. Uncooperative and rancorous in these heady
early days, the Green Party seemed more effective as a burr under the saddle of the
traditional parties than as a unit offering concrete proposals for reordering society.
These parties also distrusted the Green Party, especially in matters of national secu-
rity. As a consequence, the Green Party was denied a seat on a special committee re-
sponsible for the budget of the intelligence ser vices. The Green Party Exclusion Case is
one of several constitutional challenges initiated by the Green Party over the years to
vindicate its institutional or representational rights.20

5.2 Green Party Exclusion Case (1986)


70 BVerfGE 324
[In 1984 and 1985 the Bundestag excluded Green Party representatives from the
list of delegates elected to the special five-member Parliamentary Committee
for the Control of the Secret Ser vice. Th is committee, whose members are
elected by a majority of the whole Parliament and whose membership normally
includes at least one representative of each parliamentary party, has jurisdic-
tion over the budgets of the intelligence agencies. The Green Party challenged
its exclusion in an Organstreit proceeding on several constitutional grounds.
Most importantly, it argued that the Bundestags actions violated Article 38 (1),
which in its view gave the Green Party a right, as representatives of the whole
people, to be represented on all parliamentary committees. It also claimed
that the secrecy of the committees deliberations offended Article 110 (1) of the
Basic Law, which requires all revenues and expenditures to be included in the
budget.]

Judgment of the Second Senate. . . .
[The Second Senate upheld the Bundestags procedures in this case. The Court
affi rmed the basic right of an individual representative under Article 38 (1) of
the Basic Law to information that would allow him or her competently to assess
the [soundness] of the budget. Article 110 (1), however, does not absolutely
require publicity in all circumstances. Parliament is entitled, said the Court,
to adopt a certain mode of deliberation that serves classified interests so long
as it observes the principles of parliamentary democracy. These principles
were observed here inasmuch as Parliament 1) is autonomous in matters per-
taining to its own procedures, 2) provided by law for a special committee to
deal with budgetary proposals related to the secret ser vice, and 3) had over-
whelmingly compelling reasons for proceeding in this manner. In the follow-
ing excerpt, the Court underscored the parliamentary need for committee mem-
bers who personally enjoy the confidence of the majority.]
224 chapter five
C. II. 3. a. The importance of secrecy in meetings concerning the budget of the in-
telligence ser vices requires a high measure of precaution. It is not the Constitutional
Courts function to weigh the particulars of how far such precautions should extend.
The decision to leave this area of concern to a very small parliamentary committee is
constitutionally permissible. In previous budgetary years it was also customary to
confine deliberation over the budget of the secret ser vice to a very small committee, a
subcommittee of the Budgetary Committee. The reasons advanced by the respon-
dents [the federal government and president of the Bundestag] for the small size of the
committee under the terms of 4 (9) of the 1984 Budget Act are plausible. The most
sensitive issues of national security are discussed in this committee. Bundestag repre-
sentative Khbacher, in hearings before this Court, noted that on the basis of the in-
formation received by the committee, one could assemble a coherent picture of the
concrete operations of the secret ser vices in a way that would endanger the lives of
particular individuals. Under these circumstances, to minimize the risk of disclosure,
there are valid reasons for keeping the committee as small as possible.
b. A majority of the Bundestags members chose the members of the committee. . . .
Th is procedure was designed to ensure that only those delegates would be chosen
who personally enjoy the confidence of a parliamentary majority. The purpose of the
procedure is to make sure that the majority is convinced that the persons selected are
both competent and discreet. Th is procedure is unusual and for that reason ap-
proaches the borderline of constitutionality because it is possible that the majority
may not observe the proper criteria in making such decisions, but rather . . . ignore
the rights of the minority and from purely political motives stack a committee with
persons of their own political persuasion.
That has not happened here. The five members of the committee, under the terms
of the budgetary law for 1984, were selected on the recommendations of the cdu/
csu, spd, and fdp. The committee consisted of three representatives from the [co-
alition] parties and two from the opposition. The majority has not, therefore, abused
the right of the minority. . . .
[Justices Mahrenholz and Bckenfrde dissented. The following extract is
from Justice Bckenfrdes opinion.]
I am unable to agree with the Courts decision. The exclusion of the Green Party
from participation in the budgetary deliberations concerning the secret ser vice vio-
lates principles protected by Articles 38 (1) and 20 (1) and (2). . . .
I. 1. As the direct representatives of the German people, all the delegates elected to
the Bundestag have the right to participate in its deliberations. The representatives as
a whole make up the Parliament (Article 38 (1) [1]). Each individual delegate is a rep-
resentative of all the people (Article 38 (1) [2]); jointly they make up the representa-
tion of the people and they are empowered by the people, in their capacity as an ac-
tive citizenry, to represent the people as a whole.
As a consequence, every individual representative is called upon to represent the
people and to participate in the Parliaments negotiations and decisions. Each has a
Po liti cal R epr e sen ta tion and Democr acy 225
specific and equal right to such participation. Only in this way can representatives
responsibly carry out the official function for which they have been elected. Repre-
sentatives are not to be divided into classes depending upon their identification with
a political group or on whether they are affi liated with the majority or the minority
parties.
2. What is basic to parliamentary democracy is the participation of all the repre-
sentatives in negotiations conducted by the peoples representatives; this is the basis
of majority rule among the representatives of the people, ensuring that all legisla-
tive decisions will be truly representative in nature and reflect the totality of the
peoples will. It is precisely this general participation in the formation of the politi-
cal will of Parliamenta process emanating from general intellectual and political
discussion and argumentationthat legitimates the inherent right of a parliamen-
tary majority to decide issues of public policy. One process cannot be separated
from the other.
Th is principle applies especially to those core functions of the Parliament, partic-
ularly the right of members to participate in the process of legislation and to pass
laws dealing with the budget. Even deliberations within the type of committee estab-
lished by 4 (6) of the 1984 and 1985 budget laws are subject to this principle. Parlia-
ment may not surrender its right to deliberate by transferring certain aspects of bud-
getary planning to a small committee operating in secret. . . .
4. The principle of complete participation of allincluding individuals and par-
liamentary partiesis not merely an axiom but is also an inalienable principle of a
representative parliamentary democracy. A parliamentary majority thus cannot do
away with this principle, not even within the framework of its admitted authority
over matters of procedure. . . .
5. . . . To be sure, the Courts majority underscores the importance of the equal
participatory rights of all parliamentary parties. But the majority treats this idea as
a notion or a rule, and not as an inalienable principle essential for the structuring of
the representation of the people. Th is is the reason the Court . . . permits exceptions
to the principle based on the factual considerations set forth in the majority deci-
sion. Admittedly, the Court tries to limit these exceptions so as to be able to restrict
them to narrowly limited exceptions. But . . . these limitations are so general and
open-ended . . . as to permit . . . a parliamentary party to be excluded from partici-
pating in parliamentary deliberation merely on the basis of unsubstantiated
conjecture.
The situation here clearly illustrates the arbitrariness of the Bundestags action.
The Bundestag has never charged the representative or the parliamentary party re-
questing participation in its committee deliberations with failing to maintain se-
crecy in similar cases; nor did the Bundestag declare with certainty that the repre-
sentatives from the Green Party would not maintain secrecy in the deliberations at
hand. According to the oral arguments, neither the representative nor the parlia-
mentary party was specifically asked if they were ready to maintain secrecy con-
cerning the budgetary matters in question and the agreements already made in
226 chapter five
connection with these matters. The majoritys general distrust of the Green Party
and the utterance of one of its members immediately following the 6 March 1983
federal elections that she felt no obligation to maintain confidentiality about infor-
mation to which she had accessan utterance contradicted within the Green
Partyapparently was enough. Without any further explanation and without any
procedural measures, a path was chosen for deliberating on these budgetary plans
that was . . . calculated to exclude the parliamentary party from participating in the
deliberations.
By proclaiming this procedure constitutional, the Court indicates both its recog-
nition of the authority of a given parliamentary majority to dispose of the principle of
universal participation and how little validity it attributes to this principle. Ulti-
mately, the maxims of trust and suspicion suffice to determine when and how one
will depart from it. In my opinion this is not right.

Although it lost the Green Party Exclusion Case, the party could take some comfort in
the strong dissenting opinions of Justices Mahrenholz and Bckenfrde. These opin-
ions laid the basis for other constitutional challenges against practices the Green
Party considered equally discriminatory. In fact, the Green Party won a victory six
months later when the Constitutional Court struck down a major provision of a tax
statute affecting the fi nancial status of political parties.21 Justice Bckenfrde wrote
a separate opinion in the case saying he would have gone further to protect small par-
ties like the Green Party. In his view, legislation that bolsters the oligarchical and
careerist elements of the established parties erodes Parliaments representative
character.22
Today, the Green Party is very much a part of the political establishment. In
the early 1990s the Green Party transformed itself from an anti-party concerned
mainly with ecological issues into a responsible party Fraktion of the left , prag-
matic enough to enter coalitions with the spd in several Land governments and
broad enough to threaten the position of the Free Democratic Party (fdp) as the
major third force in German politics. Th is process of political maturation and ris-
ing influence reached new heights in 1998 when the Green Party won more than 6
percent of the national vote, allowing it to enter into a coalition government with
Gerhard Schrders Social Democrats. Most prominently, the Green Partys par-
liamentary leader Joschka Fischer gained widespread respect as vice chancellor
and foreign minister in the Schrder government. Four years later, the Green
Partys dramatic showing, with nearly 9 percent of the national vote, salvaged the
governments reelection hopes. The Green Partys transition to a mainstream
force in German politics was cemented by its historic victory in Baden-
Wrttembergs state parliamentary elections in March 2011. The Green Party
edged out the spd on the left , enabling them to lead a Green/spd coalition in the
state, which had been governed by the center-right cdu and coalition partners for
nearly six decades.
Po liti cal R epr e sen ta tion and Democr acy 227
In Surveillance of Members of Parliament (2009), another case involving the
rights of the Green Party while in opposition in the Bundestag, the Court contin-
ued its tradition of protecting the interests of parliamentariansespecially those
aligned with minority partiesas a feature of the Basic Laws commitment to de-
mocracy. The suspicion in which the Green Party was held in the years after fi rst
entering Parliament seems to have endured in some quarters, despite the partys
assimilation and success. After the demise of the historic spd/Green federal gov-
ernment, the Green Party assumed the role of parliamentary opposition to Chan-
cellor Angela Merkels newly elected grand coalition (cdu/csu-spd). In 2006
members of the Green Party Fraktion in the Bundestag came to believe that, like
members of an extreme-left opposition party, the German intelligence ser vices had
them under surveillance. Stunned by this possibility, several Green Party parlia-
mentarians presented the government with formal questions (referred to as kleinen
Anfragen) seeking information about the nature of the surveillance, the informa-
tion that was being gathered, and how the intelligence community was using the
information it collected. The government refused to answer the questions, arguing
that to do so would revealand jeopardizethe practices, strategies, methods,
and current intelligence of Germanys security ser vices. The Green Party com-
plained to the Constitutional Court about this snub in an Organstreit proceeding.
The Second Senate held that surveillance of parliamentarians posed unacceptable
risks to their constitutionally guaranteed independence (Article 38 (1) and their
work within the constitutionally reinforced political parties (Article 20 (2)). Th ese
risks, the Court concluded, were exacerbated by the governments refusal to pro-
vide answers to the kleinen Anfragen. In Green Party Exclusion the Court con-
fi rmed that parliamentariansespecially those from minority Fraktionenhave
the right to demand and receive information from the government. The Court re-
iterated that principle in Surveillance of Members of Parliament while recognizing
that Parliaments right to information may be limited for security purposes. But
the Court concluded that the security concerns raised by the government were
not adequate to justify its refusal to provide the information requested by the
Green Party, which would not lead to the revelation of details about the prac-
tices, strategies, methods, and gathered information of Germanys intelligence
community. 23

Independents and Independence in the Bundestag. In the Wppesahl Case (1989)


the Court was asked to rule on the rights of an independent representative in the Bun-
destag.24 The Second Senate recognized the constitutional significance of parties in
the Basic Laws parliamentary and democratic scheme and acknowledged some mea-
sure of constitutional advantage for the Fraktionen in the Bundestag. But the Court
insisted that all parliamentarians enjoy a core set of competences, characterized by
the principles of free and equal parliamentary mandates. These principles ensure that
every Bundestag deputy is a representative of the whole German people, equal to
every other deputy (without regard to party membership), and responsible only to
228 chapter five
his or her conscience (not taking orders from his or her party).25 Article 38 (1) of the
Basic Law provides the bulwark for these principles. In light of the dominant role
played by parties in Germanys democracy, commentators have explained the practical
consequence of these principles in the following terms: [a]s a matter of fact [parlia-
mentarians] mostly adhere to their partys line, but legally they are not obliged to do
so.26 Nonetheless, in Wppesahl the Court ruled that the effective fulfi llment of
these principles requires the parliamentary parties to grant independents access to
the Bundestags legislative processes.
The free and equal mandate enjoyed by German parliamentarians expresses some
of the most fundamental precepts of representative democracy under the Basic Law.
Former Federal Constitutional Court Justice Helmut Steinberger emphasized that
Bundestag deputies are the chief agents of representative legitimacy in the German
system. As such, it is essential that they enjoy complete freedom of discussion and
decision.27

Parliamentary Committees and the Bundestag. As the litigation stirred up over


issues of committee participation suggests, legislative committees are the im-
mensely important work horses of the Bundestag. Orga nized by subject matter,
they are empowered to hold hearings on matters referred to them and to prepare
bills for parliamentary consideration. The Basic Law itself requires several perma-
nent committees, including, inter alia, the Committees on Election Scrutiny (Ar-
ticle 41), Foreign Affairs and Defense (Article 45a), Petitions (Article 45c), Judicial
Selection (Article 95), and the Eu ropean Union (Article 45). The Basic Law also
creates freestanding committees, like the Mediation Committee for joint consid-
eration of bills between the Bundestag and the Federal Council of States (Bundes-
rat; Article 77 (2)).28 The Bundestags Rules of Procedure govern the membership
and the conduct of these committees. Under Rule 12 the parliamentary parties ap-
point committee chairs and members proportionate to the parties strength in the
chambers as a whole. Thus, the parties play a crucial role in determining who gets
appointed to which committees. In the aftermath of Wppesahl, every member of
the Bundestag is entitled to serve on at least one committee, and if he or she is an
independent, the Bundestags president is authorized to make the committee as-
signment. Under Rule 57 (2), however, an independent member of a committee is
not entitled to vote. 29 In the Mediation Committee Seat Assignment Case the Federal
Constitutional Court considered the Bundestag majoritys prerogative to manipu-
late the rules for calculating committee membership. The case highlighted the ten-
sion between the competing principles of democracy present in each of the preced-
ing cases. For example, principles of representation compete with principles of
democratic governance. The former consists of free and equal elections and the
requirement that subunits of Parliament mirror the composition of the Bundestag
as a whole (Spiegelbildlichkeit). The latter consists of majority rule. To the benefit of
the Bundestags minority parties and independent members, the following case
once again prioritized the principle of representation.
Po liti cal R epr e sen ta tion and Democr acy 229

5.3 Mediation Committee Seat Assignment Case (2004)


112 BVerfGE 118
[Following the 2002 national elections the center-left parties narrowly retained
a majority in the Bundestag, allowing spd Chancellor Gerhard Schrders gov-
ernment to remain in office for a second term. Among the newly elected Bun-
destags fi rst acts was the distribution of seats in the parliamentary committees.
Largely due to the thin margin between the majority and opposition parties in
the Bundestag (the spd/Green coalition enjoyed a mere nine-seat advantage),
the traditional methods of calculating the partisan composition of Bundestag
committees often would have assigned an equal number of seats to the majority
and the opposition. For example, the sixteen seats in the powerful Mediation
Committee would have been shared equally by the majority coalition and op-
position parties. In light of this result the Bundestag majority sought to imple-
ment a novel accounting scheme in order to ensure that the composition of
committees would reflect its thin majority in the Bundestags plenum. In the
Mediation Committee this corrective procedure would have added one seat to
the majoritys representation on the committee at the expense of one of the op-
positions seats. In an Organstreit proceeding the opposition objected to this
allocation of the Mediation Committees seats, asserting violations of the par-
liamentary minoritys constitutional rights (Articles 38 (2), 40 (1), 21 (1), 20 (2),
and 77 (2)). The Court gave only marginal priority to the principles of represen-
tation and majority rule on which the government relied in defending its pro-
posed unorthodox allocation of seats.]

Judgment of the Second Senate. . . .
B. The admissible application is successful to the extent indicated. . . .
[The Court began by emphasizing a number of fundamental principles. It reit-
erated the principle that Bundestag committees must conform to the principle
of Spiegelbildlichkeit. The Court explained that this principle derives from
twin representational values grounded in the Basic Law: the freedom and equal-
ity of members of the Bundestag. On the one hand, Article 38 (1) [2] of the Basic
Law makes every member of the Bundestag a representative of the whole peo-
ple and, therefore, equal. On the other hand, the same provision establishes
that deputies are not bound by orders or instructions, but are responsible only
to their conscience. The Court concluded that an individual Bundestag mem-
bers freedom and equality are not compromised by his or her participation in a
Fraktion. Th is rule, the Court explained, is intended to ensure that parliamen-
tary committees replicate on a smaller scale the composition of the plenum in
its concrete, organizational form characterized by the Fraktionen. It makes it
possible for the committees tasks to be fulfi lled in a manner that satisfies the
230 chapter five
requirement of equality. The Court then noted that departures from these fun-
damental principles are permitted only if there are special grounds. The consti-
tutional requirement to ensure a functioning Parliament is one such acceptable
ground.]
I. 1. e. Section 12 and 57 (1) [1] of the Rules of Procedure of the Bundestag thus
at the same time implement a derogation, required by the constitution, from the
majority principle, which, according to Article 42 (2) [1] of the Basic Law, applies
to decisions of the Bundestag, but, according to the second sentence of that provi-
sion, is open to other provisions of the Rules of Procedure of the Bundestag. The
allocation of committee seats according to the proportional strength of the Frak-
tionen requires, since only whole seats can be distributed, the use of counting pro-
cedures that can lead to discrepancies in the allocation result. The Federal Consti-
tutional Court has accepted the parliamentary practice, pursuant to which the
counting procedures for a resolution under 57 (1) of the Rules of Procedure of the
Bundestag also may be selected specifically in the light of whether the chosen pro-
cedure reflects the political majority supporting the federal government in the
Bundestag. Before this case, it was not necessary to consider whether the constitu-
tion justified changes to the conventional counting procedures for establishing
Bundestag committees, perhaps by means of a corrective factor. After all, the
Bundestag has it in its hands to increase or reduce the number of seats in a commit-
tee and thereby avoid stalemates between the governing majority and the opposi-
tion minority.
In the case of the Mediation Committee, this parliamentary practice is closed to
the Bundestag without the cooperation of the Bundesrat. The question therefore
arises more clearly here as to how far the need for a replication of the governments
parliamentary majority is capable of influencing the principle of representation and
proportionality required under Article 38 (1) of the Basic Law. That question cannot
remain unanswered, because it is specifically the allocation of seats on the Mediation
Committee, which is at the center of the present Organstreit proceeding. That is be-
cause, even though the Mediation Committee is not a committee of the Bundestag,
the principle of proportional consideration according to Fraktion strength also
applies.
2. The Mediation Committee is a permanent and joint subsidiary organ of the
Bundestag and the Bundesrat provided for in the constitution. The aim of its work is
to bring a specific legislative procedure to a positive conclusion either by avoiding
the objection of the Bundesrat or by obtaining its consent, initially withheld, to a
Bundestag enactment. Th is is to be achieved by seeking a reconciliation of interests
at a higher political level and from overriding perspectives. In that respect the Medi-
ation Committee is the institutional consequence of the fundamental decision of the
framers of the constitution to involve two decision makers, the Bundestag and the
Bundesrat, in federal legislation. It opens up the legislative process, in a defi ned set of
circumstances, to institutional negotiated solutions.
Po liti cal R epr e sen ta tion and Democr acy 231
[The Court then outlined the unique characteristics that, to the mind of the
majority of the Second Senate, counseled against permitting the Bundestag
majority to recreate its majority in the composition of the Mediation Com-
mittee. The Court explained that the Mediation Committee was meant to
facilitate negotiations between a likeness of the whole Bundestag, including
its representative character as expressed by the proportional strength of par-
ties in the Parliament, and representatives of the Bundesrat (Federal Council
of States). The Court noted that the Mediation Committees independence
and significant role in the legislative process distinguished it from the Bun-
destag committees over which the parliamentary majority exercised greater
discretion.]
It follows from all the foregoing that the Members of the Bundestag on the Media-
tion Committee must represent the relative political strengths in the plenum of the
Bundestag according to the Spiegelbildlichkeit principle. Otherwise the Bundestag
as a whole would be forced into the constraints of consensually predetermined pro-
cedural decisions on which it would not have had an influence satisfying the require-
ment of equality in accordance with Article 38 (1) of the Basic Law, even though this
would not be justified by special objective reasons.
II. The Spiegelbildlichkeit principle, which therefore also applies to the allocation
of the Bundestag seats in the Mediation Committee, does not apply without restric-
tion. It must, in the event of confl ict, be reconciled with the principle of the forma-
tion of a stable parliamentary majority. The status of deputies and Fraktionen, which
conforms to the requirement of equality, permits differentiation where special rea-
sons exist. The requirements of equality, which apply to participation in the process
of parliamentary formation of opinion, are limited by the constitutional requirement
of safeguarding the ability of Parliament to function and by the democratic principle
of majority rule (Article 42 (2) [1] of the Basic Law). Where the Spiegelbildlichkeit
principle and the principle that in substantive decisions the parliamentary majority
supporting the government must also be able to prevail in smaller-scale replications
of the Bundestag come into confl ict, then both principles are to be brought into a
careful balance.
1. The majority principle is one of the sustaining principles of liberal democracy.
It is true that the majority is not furnished with any special rights, either in the
Basic Law or in the Rules of Procedure of the Bundestag, and forms a political,
not a legal, category only constituting itself each time from case to case. But the
majority principle enshrined in Article 42 (2) [1] of the Basic Law is recognized in
constitutional law. According to that provision, resolutions of the Bundestag are to
be passed by a majority of the votes cast; exceptionsunless provided for by the
constitution itselfmay be permitted by the Rules of Procedure with respect to
elections. The principle of proportional representation ceases as a right to equality and
protection of minority rights at the point, so to speak, where decisions are made on
the substance of a matter. Only in this way can the majority of the representatives
232 chapter five
prevail so that the formation of the democratic will can manifest itself as the will of
the majority. The Basic Law not only regulates the principle of majority rule, but
also seeks to guarantee a stable parliamentary majority in keeping with the politi-
cal forces that form the government. After the experiences with the presidential
cabinets of the Weimar Republic, which governed without a regular parliamentary
majority from the time of the Brning government onward, the Basic Law sought
to avoid such crippling discord between Parliament and government as far as pos-
sible. Evidence of that can be seen primarily in the limitation of the Bundestag to a
constructive vote of no confidence (Article 67 (1) of theBasic Law), but also in the
framing of the vote of confidence (Article 68 of the Basic Law).
Smaller-scale replications of the Bundestag must therefore comply, in terms of
personnel, with the Spiegelbildlichkeit principle, although deviations are justified
to a limited extent if that is the only way of enabling the smaller-scale body to reach
substantive decisions that have a realistic prospect of corresponding to the will of a
political [g]overnment majority in the plenum. Th is applies without prejudice to
the question as to whether the majority principle possesses the same influential
force as the principle of representation from which public authority derives its
legitimacy.
2. The function and tasks of the Mediation Committee do not require a manda-
tory orientation of the allocation of seats on the committee to the majority principle
to such an extent that the Spiegelbildlichkeit principle would have to give way in
case of doubt. The establishment of the Mediation Committee is aimed at the nego-
tiation of compromises between the legislative bodies; this succeeds if the political
opinions of key relevance to a given legislative project can be reconciled. In that re-
gard, the normative form of the mediation procedure does not preclude the political
opposition at the federal level from having a majority on the committee in certain
cases. Th is ensues from a comparison of the structure of the Bundesrat and Bun-
destag seats and from the rules on the voting procedure in the committee.
[In limiting the importance of the Bundestags majority in the Mediation Com-
mittee, the Court noted that the Bundesrats contribution to the composition
of the Mediation Committee also did not seek to replicate that bodys majority.
The emphasis of the Mediation Committees work, the Court explained, is on
open and free negotiations. Th is does not require that the committee engage in
conclusory activity of the kind that must respect the principle of the majority
rule. Finally, the Court noted that the Mediation Committees rules support
the conclusion that it need not replicate a governing majority.]
In view of the special position and composition of the Mediation Committee, it
does not follow that a careful balance between the Spiegelbildlichkeit principle and
the majority rule principle is superfluous. Rather, the respondent was obliged to draft
its resolution under 57 (1) of the Rules of Procedure of the Bundestag in such a way
that, even with a replication of the chancellors Bundestag majority (see Article 121
of the Basic Law), the allocation of seats according to the proportional strengths of
Po liti cal R epr e sen ta tion and Democr acy 233
the Fraktionen, required by 12 of the Rules of Procedure of the Bundestag, is pre-
served as far as possible.
[The Court concluded that the majoritys process for allocating party seats on the
Mediation Committee generally satisfied the constitutional requirement of
the principles of representation. Nonetheless, the Court found that, in the details,
the majoritys proposal significantly departed from the Spiegelbildlichkeit prin-
ciple: The present allocation of seats . . . no longer reproduces the actual propor-
tions of political strength in the plenum of the Bundestag to an acceptable
degree.]
. . . The process therefore contradicts the principle that the sovereign expression of
will embodied in the election result must be replicated as precisely as possible in Par-
liament and the bodies derived from it. The solution chosen by the respondent,
namely assigning the strongest Fraktion in the Bundestag an additional seat on the
Mediation Committee is fundamentally incompatible with the internal law of Parlia-
ment embodied in this respect in 12 of the Rules of Procedure of the Bundestag. The
distribution result challenged by the applicant cannot be justified with any of the
usual methods of calculation; the corrective factor is contrary to the wording and
meaning of 12 [(1)] of the Rules of Procedure of the Bundestag. Th is inadequacy of
proportionality expresses itself in the discrepancy between the number of a Bundes-
tag Fraktions seats on the Mediation Committee and its share of the total votes
cast.
[Justices Osterloh and Gerhardt joined a dissenting opinion. Justice Lbbe-Wolff
wrote a separate dissenting opinion. The dissenters shared separation of powers
concerns over the propriety of the Courts instructions to the Bundestag for the
resolution of the allocation issue. Justices Osterloh and Gerhardt objected that
the majority of the Second Senate abridged the scope of the Bundestags autono-
mous discretion in matters of its internal rules and submitted the Bundestag to a
too far-reaching internal control via the Federal Constitutional Court.]

The Official Propaganda Case serves as yet another example of the limits the Federal
Constitutional Court has imposed on the authority of the governing majority. As it
had to a qualified degree in the other cases, the Court also invoked representational
principles in limiting the authority of the parliamentary majority.

5.4 Official Propaganda Case (1977)


44 BVerfGE 125
[During the federal election campaign of 1976, the German Press and Informa-
tion Office and the publications divisions of several federal ministries distrib-
uted millions of leaflets, pamphlets, and brochures disclosing the records of
234 chapter five
and benefits conferred by various governmental agencies. Although some of
these publications were informational (e.g., ser vice publications and the text of
laws and treaties), many promoted the interests of the spd/fdp coalition gov-
ernment. In addition, funds allocated to the publication departments of vari-
ous agencies were used to take out advertisements in prominent magazines and
newspapers, listing the accomplishments of the incumbent government. For
example, between 24 May and 26 July 1976, the news magazine Der Spiegel car-
ried a government-sponsored advertisement, three to five pages in length,
under the caption, All in all, this government has brought you more freedom.
The general secretary and Executive Council of the cdu challenged the valid-
ity of these expenditures in an Organstreit proceeding before the Federal
Constitutional Court. The following extract focuses on the Courts discussion
of parliamentary democracy in its ruling fi nding the public relations measures
taken by the government during the 1976 federal election campaign to be un-
constitutional. The expenditures were invalidated on three principal grounds:
1) they offended the idea of democracy within the meaning of Article 20, 2) they
violated the principle of equality among political parties under Article 21, and
3) they offended the principle of free and equal elections under Article 38.]

Judgment of the Second Senate. . . .
C. I. Our consideration of Article 20 (1) and (2), taken together with Article 2 (2)
guaranteeing liberty rights, leads to these conclusions:
1. In the kind of free democracy designed by the Basic Law for the Federal Repub-
lic of Germany all public authority emanates from the people by means of elections
and voting and is exercised by specific organs of legislation as well as by executive
and judicial authorities (Article 20 (12)). . . .
2. Elections can confer democratic legitimation in the sense of Article 20 (2) only
if they are free. Not only must the actual act of casting the ballot remain free of coer-
cion and undue pressure as stipulated by Article 38 (1) of the Basic Law, but the voters
must be able to form and utter their opinions freely and openly. The democratic basic
order established by the Basic Law lays down the constitutional conditions for a free
and open process of forming the popu lar will. Th is is accomplished especially
through numerous constitutional guarantees of freedom and equality as well as
through institutional and procedural mechanisms such as the fundamentally public
nature of Bundestag and Bundesrat meetings (Articles 42 (1) and 52 (3) of the Basic
Law) or the promulgation of enacted laws (Articles 76, 77, and 82 (2)). . . .
4. The integrity of the fundamental act of democratic legitimationthat is, the
election of parliamentary representativesmust be ensured. Th rough the act of vot-
ing in the sense intended by Article 20 (2) the formation of the popu lar will takes
place, rising from the people to the constitutional organs, and not the other way
around. Admittedly, the conduct of these constitutional organs has a rather strong
Po liti cal R epr e sen ta tion and Democr acy 235
effect on the formation of the will and opinion of the votersconduct that is itself
instrumental to the voters decision. Yet the constitutional organs may not in their
official capacity try to influence the formation of the popu lar will by employing ad-
ditional special measures during elections in order to gain control over these organs.
They are constitutionally barred from identifying themselves, as constitutional
organs, with political parties during election campaigns and from supporting or op-
posing political parties with public funds. They are particularly forbidden from influ-
encing the decision of voters through advertising.
In addition, the constitutional principle that limits the tenure of the Bundestag
and the federal government does not permit the current federal government in its
capacity as a constitutional organ to seek reelection, as it were, and to promote itself
as the future government. Of course, this does not prevent a member of the federal
government from entering the election campaign on behalf of a political party in a
nonofficial capacity.
5. The Basic Law as a democratic governmental structure provides that basic po-
litical decisions be reached by majority rule (citing Articles 42 (2), 63 (24), 67 (1), 52
(3), and 54 (6)).
. . . Only if the majority emerges in the free and open process of forming the popu-
lar will and public opiniona process that requires constant renewal and in which
all citizens of voting age share equallydoes the decision of the majority . . . consti-
tute the will of all. Only then does the decision generate a binding commitment for
all in accordance with the idea of free self-determination for all citizens. The majority
must keep the common good in mind during the decision-making process, particu-
larly the rights and interests of the minority, whose chances of becoming a majority
must neither be taken away nor curtailed. . . .
Basically, all citizens, regardless of their political convictions or affi liations, bear
the burden of fi nancially supporting the state. These fi nancial resources are also en-
trusted to the state for use on behalf of the common good. As a social, constitutional
state the Federal Republic serves this purpose in many different ways, especially by
supporting parts and groups in the population of a pluralistic society and its most
diverse interests. . . . But this commitment to serve diverse groups does not extend to
a politically vital situation, such as a parliamentary election, if the funds and poten-
tial supplied and generated by the general public are used to favor or disfavor one
political party or candidate over others. The Basic Law tolerates extralegal inequali-
ties of citizens and their political groups in the process of forming popu lar political
opinion and the peoples will that culminates in the act of voting. Yet, it bars the state
from taking sides during an election campaign in order to influence the competitive
relations among the political powers. Organs of the state must serve everyone and
remain neutral during an election campaign. . . .
Justice Rottmann, dissenting.
I dissent from the limitations imposed on federal government activities during the
parliamentary election campaign that the majority derives from the principle of de-
mocracy and the constitutional principle of equal opportunity for political parties. . . .
236 chapter five
I. The senate bases its ruling on an ideal of parliamentary democracy that fails to
do justice to the structure of the political party system in the Federal Republic. Fur-
thermore, it does not sufficiently take into consideration constitutional reality since
the founding of the Federal Republic.
Democracy as outlined by the Basic Law is a party democracy. Political parties
enjoy a legally privileged position under Article 21 (1) of the Basic Law. Article 21 (1)
raises them to the level of constitutional institutions and recognizes them as active
political units that our modern democracy needs to unite voters in politically active
and operational groups, thus giving citizens the possibility of influencing political
events. Consequently, political parties constitute a factual monopoly in the creation
of constitutional organs at the federal and state levels. Without them . . . the creative
organs of the Federal Republic cannot function, and political offices in a modern
mass democracy cannot be fi lled.
[Justice Rottmann went on to describe the party state under the Basic Law as
having the following characteristics: 1) Political parties nominate candidates
to Parliament and effectively elect the chancellor. 2) The chancellor and his
or her cabinet are, respectively, the party chair and either top party function-
aries or members of parliament. According to Justice Rottmann, the conse-
quence of these two attributes of the party state is that the federal govern-
ment functions as the executive committee of the ruling coalition of parties.
3) While the government has an obligation to the entire state, Rottmann ar-
gued, it actually seeks to implement its party platform. In so doing, the ma-
jority party or coalition uses its platform as one of several concepts of the
common good that the people have already approved through national elec-
tions. Thus, the will of the people authorizes the ruling coalition to imple-
ment and defend its platform against the contrary efforts of the minority
parties.
The second prong of the dissent focused on the federal governments past
practice of using official resources during election campaigns. Rottmann
traced the history of election campaigns since the founding of the Federal
Republic. He then noted that the chancellor and most cabinet ministers have
campaigned not only as party members but also in their official capacities,
using resources of their office to do so. Hence, the idea that the federal gov-
ernment remains neutral during a campaign is a novel idea. Rottmann viewed
the practice of using government resources to achieve reelection as an essen-
tial and characteristic part of political life as it has developed under the Basic
Law.]
i. . . . The Federal Constitutional Court cannot simply change past practice with-
out prior announcement of guidelines. It cannot make changes by deriving standards
from the Basic Law and calling them constitutional principles that have supposedly
always restricted the actions of the federal government. Constitutional reality con-
tradicts this. In truth, in the almost thirty-year history of the Federal Republic, po-
Po liti cal R epr e sen ta tion and Democr acy 237
litically active persons have not gleaned these constitutional restrictions on the fed-
eral government from the Basic Law. In the fi nal analysis, nobody had any knowledge
of these restrictions, with the result that no federal chancellor, no federal govern-
ment, no Bundestag, no political party could be familiar with these limitations,
which are supposedly required by the constitution.

Parliamentary Ossification. The Federal Republics parliamentary system has been
subject to criticism on and off the bench. Recall Justice Bckenfrdes reference to
the oligarchical tendency that he observed in the established parties,30 a tendency
that a former president of the Federal Constitutional Court believed the Second Sen-
ate had reinforced in the Legislative Pay Case (1975).31 In 1992, Federal President
Richard von Weizscker mounted a slashing attack on Germanys established par-
ties, faulting them for their ossification and lack of creativity.32 Another leading pub-
lic official spoke of the representational deficit affl icting the German Bundestag
and advocated more participatory democracy including institutional reforms such as
the ballot initiative and referenda.33 Indeed, the Green Party owes much of its early
success, particularly among the young, to the grassroots character of its movement as
well as to its support of such reforms and other citizens initiatives (Brgerinitia-
tiven). As interpreted by the Federal Constitutional Court, however, the principle of
representative, or indirect, democracy embodied in Article 20 (2) would seem to ex-
clude any institutional reform at the national level that would interfere with Parlia-
ments exclusive control over legislation.34
The language of Article 20 (2) provides for the exercise of state authority by the
people through elections and other votes and through specific legislative, executive,
and judicial organs. Some constitutional scholars suggest that a liberal interpreta-
tion of the term voting in this provision would permit some forms of direct de-
mocracy.35 They believe that referenda on fundamental political issues and even the
popu lar ratification of constitutional amendments would be good political therapy
for a body politic not altogether satisfied with a sometimes stumbling and indecisive
Parliament.36 The prevailing view, however, is that the adoption of plebiscitary de-
vices at the national level would require an amendment to the Basic Law. The Joint
Committee of the Bundestag and Bundesrat, a standing body of representatives
from both legislative chambers that was added to the Basic Law in an amendment
from 1968, seriously considered changing the constitution to permit some forms of
direct democracy at the federal level.37 But the reform lacked the two-thirds vote
required to amend the Basic Law. German democracy remains a representative, and
primarily parliamentary, system. It is, however, a parliamentary system colored by
two distinct factors. On the one hand, political parties play a significant role. Th is
will be considered in more detail in a subsequent section. On the other hand, the
preceding cases establish that it is not a blunt system for realizing the preferences of
the parliamentary majority. Instead, the Basic Law makes important concessions to
the role of minority parties and independents.
238 chapter five

elections and voting

The major principles governing the German electoral process are set forth in the
Basic Law. As with the principles of parliamentary democracy, Articles 20 and 38
are the core of the constitutions electoral regime. Article 20 (2) provides that the
people [shall exercise all state authority] by means of elections and voting. Article
38 (1) states that parliamentary representatives shall be elected in general, direct,
free, equal, and secret elections, principles that also bind the states under the terms
of Article 28. Article 38 (2) confers the right to vote on all citizens who have attained
the age of eighteen years. Article 39 (1), fi nally, provides for legislative terms of four
years.
The Maastricht Treaty Case (1993; no. 5.5) bridges nearly all the concerns of this
chapter. It is a comprehensive declaration of the meaning of German parliamentary
democracy. As noted in Chapter 6, pursuant to the Maastricht Treaty member states
were able to transfer their sovereign powers to the newly-created European Union
(eu). The assignment of such powers to the eu, however, implicates certain inviolable
principles of democracy secured by the Basic Law. In its Maastricht Treaty decision
the Court held that principles of democracy and free elections do not bar German
membership in a supranational interstate community in which decisions are made at
a level removed from the national German electorate. Nevertheless, the transfer of
such powers must not detract from the right of German citizens to participate in the
national lawmaking process in the most prominent way provided by the Basic Law,
namely, by voting.

5.5 Maastricht Treaty Case (1993)


89 BVerfGE 155
[The constitutional complaint asserted a violation of Article 38 of the Basic
Law, which confers on German citizens an equal right to vote for their parlia-
mentary representatives. Consistent with the core principle of democracy,
citizen-voters participate in the exercise of state authority through their parlia-
mentary deputies (Article 20 (2)). It was argued that, to the extent that this au-
thority has been transferred to a supranational institution beyond the control
of German legislators, citizen-voters have lost their right to participate in the
national legislative process. In short, citizens ability to influence national pol-
icy by way of voting has been circumvented. Additionally, it was argued that
the eu itself suffers from a democratic deficit, for the European Parliament
lacks authentic lawmaking power and Germanys deputies play no significant
role in lawmaking at the European level. The Court rejected the complaint but
set out strict limits for further European integration in order to preserve the
Basic Laws fundamental democratic commitment.]

Po liti cal R epr e sen ta tion and Democr acy 239
Judgment of the Second Senate. . . .
III. B. 1. The fi rst complainant has shown that the Act of Accession may violate his
equal right to vote as guaranteed by Article 38 (1) of the constitution.
a. Article 38 (1) and (2) guarantee to all Germans entitled to vote the subjective
right to participate in electing Bundestag representatives. The power of the state ema-
nates from the people through the voting process. The Bundestag then exercises that
power as a legislative body, choosing the federal chancellor and controlling the gov-
ernment. Article 38 does more than ensure that citizens have the right to elect the
Bundestag and that constitutional principles will be protected in the election process.
It also extends this safeguard to the fundamental democratic content of that right: the
fact that any German citizen who is entitled to vote has the right to participate in the
election of representatives to the Bundestag also means that he or she has the right to
participate in the legitimation of state power and to influence its exercise. . . .
If the Bundestag relinquishes its duties and responsibilities, especially as to legis-
lation or the election and control of others who exercise state power, then this affects
matters within the scope of Article 38 and its democratic content. Article 23 (1) of
the Basic Law enables the federal legislature (under specified conditions) to grant the
European Union the right to independent exercise of sovereign powers, up to the
limits imposed by Article 79 (3) (see Article 23 (1) [3]). The legislature created this
constitutional provision by amendment to the constitution specifically for the pur-
poses of European integration and its progress. In doing so, it also defi ned the sub-
stance of the right guaranteed by Article 38. Where Article 23 applies, Article 38 for-
bids the weakening of the legitimate state power gained through an election; it also
forbids any weakening of the voters influence on the exercise of such power by a
transfer of power so extensive that it breaches the democratic principle declared in-
violable by Article 79 (3) in conjunction with Article 20 (1) and (2).
The complainants right arising from Article 38 . . . , therefore, can be infringed if
the exercise of the responsibilities of the Bundestag is transferred to an institution of
the European Union or European Communities so extensively that the minimum
requirement of Article 20 (1) and (2) (in conjunction with Article 79 (3)) is violated,
and the requirements of legitimation of the sovereign power are not met. . . .
C. To the extent that the constitutional complaint fi led by the fi rst complainant is
admissible, it is unfounded. In this case, when examining the grant of sovereign pow-
ers to the European Union and the communities within it, the Federal Constitu-
tional Court can apply only the criterion of the guarantees within Article 38 of the
Basic Law. Those guarantees are not violated by the Act of Accession. . . . The func-
tions of the European Union and the powers granted to implement these functions are
regulated in a sufficiently foreseeable manner; because the treaty reflects the principle
of limited individual powers, the European Union does not have the power to extend
its own authority, and the claiming of additional functions and powers depends on
supplementing or amending the treaty; thus it is subject to the consent of the na-
tional parliaments. . . .
240 chapter five
I. 1. The right granted to eligible voters by Article 38 of the Basic Law to participate
in the legitimation of state power and to influence its exercise by voting precludes the
possibility, within the scope of Article 23, of the right being weakened through trans-
ferring functions and powers of the Bundestag in such a way as to violate the demo-
cratic principle. . . .
2. Part of the inviolable content of the democratic principle under Article 79 (3) of
the Basic Law is that the exercise of state functions and powers is derived from the
people, and those who exercise state power are fundamentally responsible to the people.
Th is relationship of responsibility is established in varied ways, not just one form.
The decisive factor is that a sufficiently effective proportion or level of legitimation be
achieved.
a. If the Federal Republic of Germany becomes a member of a community of
states entitled to act on its own in sovereign matters, and if that community is given
the right to exercise independent, sovereign powers (both of which are expressly al-
lowed by the constitution, for the purpose of creating a unified Europe), then demo-
cratic legitimation for these purposes cannot be produced in the same way that it is
for a national order, governed uniformly and conclusively by a state constitution. If
sovereign rights are granted to international institutions, then the representative
body elected by the people (the Bundestag) and the voting populace necessarily lose
some influence over the process of forming the political will and making political
decisions. Any entry into an international community results in the members of the
community being bound to adhere to community decisions.
[In the following passages the Court examined the Maastricht Treaty in the
light of the Basic Laws new Article 23. The Court found that the Bundestag has
not been frozen out of the eus process of making policy. It held that since the
eu is an organization of states rather than a federal state, the Bundestag re-
tained sufficient control over its functions and powers to satisfy the constitu-
tional commitment to the principle of democracy. In the end, the Court sug-
gested that the legitimacy of eu policy will depend on maintaining a link
between German voters, the Bundestag, and the European Parliament.]
b. Thus, the democratic principle does not prevent the Federal Republic of Ger-
many from becoming a member of a community of states organized on a suprana-
tional basis. Nevertheless, it is a precondition for membership that the legitimation
derived from the people be preserved within the alliance of states.
1. According to its self-defi nition as a union of the peoples of Europe, the Euro-
pean Union is a federation of states seeking dynamic development. If it is to carry out
sovereign tasks and exercise sovereign powers toward that aim, the national peoples
of the member states must fi rst, through their own national parliaments, provide the
democratic legitimation for such action.
At the same time, as the functions and powers of the European Union grow, it is
increasingly necessary for the people of individual states to be represented within a
European Parliament that supplements the democratic legitimation and influence
Po liti cal R epr e sen ta tion and Democr acy 241
gained through the national parliaments. Th is will form the basis of democratic sup-
port for the policies of the European Union. The establishment of Union citizenship
by the Maastricht Treaty has formed a legal bond between the nationals of the indi-
vidual member states. Th is bond is intended to be lasting and, though it does not
have the strength of common nationality that unites a single state, it provides the le-
gally binding expression of an existing, de facto community. The influence flowing
from the citizens of the Union can eventually provide the democratic legitimation of
European institutions to the extent that the following conditions are met on the part
of the peoples of the European Union.
If democracy is to be more than merely a formal principle of accountability, it de-
pends on the presence of certain pre-legal conditions, such as continuous free debate
between opposing social forces, interests, and ideas. In the course of such debate po-
litical goals are clarified and changed, and public opinion emerges as a precursor to
the forming of the political will. For this to happen, it is essential that the institutions
that exercise sovereign power and implement political objectives engage in a decision-
making process that is clear and comprehensible, and that citizens entitled to vote
can communicate in their own language with the sovereign authority to which they
are subject. . . .
2. Within the federation of states that constitute the European Union, democratic
legitimation necessarily emerges as information about the activities of the European
institutions flows back through the parliaments of the individual member states.
Democratic legitimation within the structure of the Union is also provided through
the election of a European Parliament, chosen by the citizens of the member states,
increasing as the European nations grow closer together. Already, the legitimation
provided by the European Parliament has a supporting effect. Th is effect could be-
come stronger if the European Parliament were elected by electoral rules consistent
in all member states, in accordance with Article 138 (3) of the ec Treaty, and if the
Parliaments influence on the policies and legislation of the European Union were to
increase. The important factor is that the democratic bases of the European Union
continue to grow in step with integration, and that as integration proceeds, a democ-
racy thrives in the member states. . . .
If the peoples of the individual states continue to provide democratic legitimation
through their national parliaments, then the principle of democracy limits the exten-
sion of the European Communitys powers and functions. The origin of state power
in each member state is the people of that state.
It follows, then, that the Bundestag must retain functions and powers of substan-
tial importance. . . .
3. Since . . . enfranchised Germans exercise . . . their right to participate in the
democratic legitimation of institutions and agencies entrusted with power by voting
in elections for the Bundestag, then the Bundestag must make decisions about Ger-
man membership in the European Union, and on its continuation and development.
Accordingly, Article 38 of the Basic Law is breached if an act opens up the German
legal system to the application of the law of the supranational European Communities
242 chapter five
if that act does not establish with sufficient certainty what powers are transferred and
how they will be integrated. If it is not clear to what extent and degree the German
legislature has assented to the transfer of the exercise of sovereign powers, then it will
be possible for the European Community to claim functions and powers that were
not specifically mentioned. That would be a general authorization and therefore a
surrender of powers, something against which Article 38 protects.

Rules Governing Elections. Germanys original electoral laws sought to achieve po-
litical stability and fair representation. To this end, German lawmakers adopted a
mixed system of political representation. They also sought to prevent the rise of splin-
ter parties by requiring a political party to meet, as a condition for entering the legisla-
ture, a 5 percent threshold of electoral success. In addition, before gaining access to
the ballot, new parties had to produce evidence of electoral support, usually by col-
lecting the signatures of a certain percentage of eligible voters. The Federal Constitu-
tional Court, in several early cases, struck down a number of these restrictions.38
The Federal Election Act, fi rst enacted in 1956 and last revised in 2011, superseded
major election statutes passed in 1949 and 1953 and governed the conduct of national
elections. It incorporated the rulings of several constitutional cases while retaining
the major features of the earlier statutes. The most prominent of these features was a
mixed electoral system that provides for the election of half of the current 598 mem-
bers of the Bundestag by a direct vote in single-member constituencies, and half on
the basis of proportional representation from party lists put forward by state party
organizations. Under this system each voter casts two ballots, the fi rst for a particular
constituency candidate and the second for a specific party list. A federal election com-
mittee then distributes the seats among the parties in proportion to the total number
of second (party-list) ballots they win throughout the country. Any party surpassing
the minimum threshold of electoral success (at least 5 percent of all second-ballot
votes or at least three constituency seats) qualifies for parliamentary representation.
Other provisions of the election act specify the conditions for voter eligibility, regu-
late the process of selecting candidates, and establish rules for casting ballots, chal-
lenging election results, and fi lling vacant seats during a parliamentary term.39
The Basic Law does not prescribe any of this. The framers left the details of the
electoral process to Parliaments discretion. Germans often have debated whether to
modify their system in imitation of the BritishAmerican model of single-member,
winner-take-all constituencies.40 In the late 1960s, the grand coalition parties even
toyed with the idea of adopting such a system with an eye to eliminating the minor
parties whose entry into the Bundestag was made possible by proportional represen-
tation.41 The popu lar reaction to any manipulation of the electoral process for parti-
san political purposes was so hostile that the issue was dropped. Indeed, it was
thought that the mixed system of constituency and proportional representation
(sometimes referred to as a mixed member-proportional system) had assumed
quasi-constitutional status.42
Po liti cal R epr e sen ta tion and Democr acy 243
But constitutional suspicions have continued to shadow the mixed member-
proportional system, particularly the question whether it violates the constitutional
mandate for equal suffrage. The question is legitimate because of the way proportional
representation works in Germany. If a party wins 55 percent of the second (list) ballot
votes (and satisfies the minimum electoral success threshold), it receives 55 percent of
the seats in Parliament. The system calls for adding list candidates, in the order of their
appearance on a states second ballot, to those who win constituency seats until the 55
percent figure is reached.43 Critics have complained that this method of counting creates
a variety of potential electoral inequalities, chief among them being the phenomenon
known as overhang mandates. In one scenario, the share of parliamentary seats won by
a party that is excluded from the Bundestag for failing to satisfy the minimum electoral
success threshold is divided among the surviving parties. In essence, these parties re-
ceive a windfall that makes the votes of their supporters worth more than the votes of
the supporters of the excluded party. In another scenario, a party may win more con-
stituency seats than it is entitled to under the parliamentary proportions determined
by the second-ballot votes. In such cases, the Federal Election Act requires the expan-
sion of the total number of Bundestag deputies (above the preordained 598 seats) to ac-
commodate every successful constituency candidate. Again, votes for a party credited
with these overhang mandates appear to be worth more than votes cast for a party that
does not receive these additional seats. In neither scenario is the strength of a partys
representation in the Bundestag reflective of its actual strength at the ballot box.
The Federal Constitutional Court had repeatedly upheld the complicated elec-
toral system that makes these overhang mandates possible.44 But the Court left open
as many questions as it resolved. In 1997 the Second Senate split evenly in the Over-
hang Mandates II Case and thus just barely allowed the challenged provisions of the
Federal Election Act to stand.45

5.6 Overhang Mandates II Case (1997)


95 BVerfGE 335
[Following the 1994 federal election the center-right cdu won twelve more
constituency seats than it was entitled to under the allocation of Bundestag
seats as determined by its proportional success in the second-ballot votes. The
center-left spd similarly won four additional seats. Pursuant to Articles 6 (5)
and 7 (3) of the Federal Election Act, the total number of seats . . . [in the
Bundestag was] increased by sixteen. The cdus twelve overhang mandates
made a secure majority for the governing coalition out of what otherwise had
been a narrow victory. The spd-led government in the Land Lower Saxony
challenged this result in an abstract judicial review proceeding, complaining
that the overhang mandates constituted a violation of the guarantee of equal
suff rage provided by Article 38 (1) [1] of the Basic Law.]

244 chapter five
Judgment of the Second Senate. . . .
I. . . . 3. For the election law, it follows from the principle of equal suff rage (Article 38
(1) of the Basic Law) that each vote must have the same value for counting purposes
and the same legal chance of success. An ex ante approach is applicable in this regard.
Th is requirement of equality is historically opposed to any variable weighting of
votes according to the person of the voter, his or her membership of a class or his or
her fi nancial circumstances; today it protects an equality of opportunities in the
strict and formal sense. . . .
III. The provisions in 6 (5) and 7 (3) [2] of the Federal Election Law, according
to which a party retains the seats won in the constituencies even when they exceed
the number of its Land list mandates, without other parties receiving compensating
mandates, satisfies the requirements of electoral equality under Article 38 (1) [1] of
the Basic Law and preserves the equality of opportunities of the parties.
1. a. The Federal Constitutional Court has held that the election of the Bunde-
stagas a result of the proportional equalization to be carried out at the second
stage of the election and regulated in 6 (4) of the Federal Election Act and without
prejudice to the prior direct election of the constituency candidates according to the
principles of the plurality systembears the fundamental characteristics of an elec-
tion by proportional representation. Overhang mandates differentiatein varying
degrees depending on the number of overhang mandatesthe success value of the
votes as understood under the rules of proportional representation. Such a differen-
tiation, however, may be compatible with electoral equality under Article 38 (1) [1] of
the Basic Law as the necessary consequence of the par ticu lar character of mixed
member-proportional representation, as long as the constituencies are, within the
bounds of possibility, of approximately equal size. Thus, the Federal Constitutional
Court has constitutionally approved of the overhang mandate, even if a majority in
the Bundestag and the election of a federal government were to result exclusively
from overhang mandates.
In conclusion, therefore, that case law must be adhered to. . . .
b. . . . It is true that the Federal Constitutional Court assumes in previous deci-
sions that the differentiation in the proportional representation of the parties result-
ing from the accrual of overhang mandates, in view of the formalization of electoral
equality in the system of personalized proportional representation, is not unlimited
and is only permissible within narrow limits. But there is no evidence to suggest that
the Court thereby intended to exclude all differentiation that goes beyond the un-
avoidable inequalities in the process of allocating seats according to the proportional
strength of the parties. In its previous decisions the Court had no reason whatsoever
to defi ne more precise limits for the permissibility of overhang mandates. At most, it
can be inferred from the decisions that the number of overhang mandates must re-
main within limits that do not nullify the fundamental character of the election of
the Bundestag as an election by proportional representation that is orientated toward
the result of the votes cast for the parties. . . .
Po liti cal R epr e sen ta tion and Democr acy 245
2. Nor, as such, does the combination of proportional representation with ele-
ments of the plurality system infringe the general principle of electoral equality,
pursuant to which all votes are to be given an equal chance of success. The current
Federal Election Act guarantees that every voter has an equal legal opportunity with
his or her fi rst and second votes, and by their combined action, to exert an influence
on the result of the election. Even the possibility of overhang mandates does not lead
to individual voters being presented with a chance, calculable in advance, of securing
by their votes a double success as regards the composition of the Bundestag, which
favors them unequally over other voters.
a. The right to vote offers every voter the same opportunity to exert an influence
on the allocation of seats and thereby on the person of the respective elected repre-
sentative as well as on the proportional strengths of the political parties in Parlia-
ment. Securing overhang mandates is not the object of that electoral decision, nor a
consequence of variable weighting of votes, but only the result of the electoral behav-
ior of all those entitled to vote in the Land in question. Those voters who split their
vote contribute to the emergence of direct mandates (that must be fi lled by the victo-
rious candidates regardless of a respective partys proportional success) just as much
as those who cast their vote uniformly for the winning direct candidate in a constitu-
ency and his or her corresponding party list. . . . .
IV. 1. The fundamental character of the election as proportionally representative
does not allow for unlimited differentiation in the weight votes receive. It is likewise
in keeping with the total number of deputies in the Bundestag, fi xed by statute for the
normal case ( 1 (1) [1] of the Federal Election Act), and with the statutory require-
ment that one-half of the legitimating process for that normal case is to take place in
relation to individual candidates and the other half in relation to parties ( 1 (2) of the
Federal Election Act), that the number of overhang mandates should remain within
limits. If those limits are exceeded, because circumstances arise in which overhang
mandates occur in ever greater number from election to election, the electoral pro-
cess departs from the fundamental decisions embodied in the law. Both a limitation
on the discretion of the legislature, on the one hand, and a mandate to act because of
the change in the actual circumstances, on the other hand, may result from these
demands on the electoral process.
2. The judgment as to whether there is cause for an amendment of election law is
fi rst and foremost a matter for the legislature in accordance with the legislative
mandate conferred on it by Article 38 (3) of the Basic Law. Parliament must deter-
mine to what degree an increase in the number of seats is acceptable in conformity
with the rule laid down in 6 (5) of the Federal Election Act. In reaching its conclu-
sions on this question the Parliament might refer to the numerical value that it uses
to reconcile the principle of proportional representation with other constitutionally
legitimate but confl icting principles. That effort has led the Parliament to give the
success value of votes variable weight. For example, the principle peculiar to the
system of proportional representationnamely, that the political will of the elec-
torate for the choice of certain parties should be reflected as realistically as possible
246 chapter five
in the Bundestagmay be broken by a minimum percentage clause ( 6 (6) [1] of
the Federal Election Act) in order to ensure the capacity of Parliament to act and
make decisions. The 5 percent minimum threshold for success, in that context, pro-
vides the legal framework for a careful balance between party electoral equality and
the capacity of Parliament to function. The threshold, in relation to the normal total
number of parliamentary seats, might serve here as a criterion for limiting any de-
viation from other principles, including that half the Bundestag should be com-
posed of constituency seats and the other half of list seats; and that the seats should
be distributed proportionally according to the result of the (second) votes cast for
the parties.
3. a. According to the 5 percent minimum threshold for success, there can be no
objection on constitutional grounds that the Parliament, in recognition of the present
trend, has not seen any reason to depart from the current election system. The current
system, in the fi rst instance, fi lls the seats awarded to a party on the basis of its success
on the second ballot with direct mandates and increases the number of seats to which
a party is entitled if it won more direct mandates than the total number of seats
awarded to it on the basis of the second-ballot votes. The present increase in the num-
ber of seats is constitutionally acceptable;. . . . Nor is it foreseeable that the number of
parliamentary seats will further increase substantially in future elections in accor-
dance with 6 (5) of the Federal Election Act. The factors that favor the formation of
overhang mandates, but may also counteract it, are many and diverse in nature. They
include an above-average share of unenfranchised persons in the constituency, a low
turnout, a high number of invalid second votes, a greater number of successful parties,
as well asa factor which the legislature can influencethe unequal division into
constituencies in conjunction with the distribution of the latter among the Lnder,
voting according to Land lists, and the allocation of two votes that are to be cast inde-
pendently of one another (one for a constituency candidate and one for a list).
b. Provisions of electoral law by which constitutionally permitted aims are pur-
sued are not constitutionally objectionable simply because they also favor the forma-
tion of overhang mandates. Thus, the distribution of the seats in the Bundestag ac-
cording to Land lists is rendered legitimate from the outset by the constituent-state
structure of the Federal Republic. The fact that vote-splitting is allowed by statute is
justified by the notion of representation rooted in the principle of democracy. As for
the varying size of constituencies, which is contrary to equal suff rage, and their un-
equal distribution among the Lnder, which also favors the formation of overhang
mandates, the Bundestag has recognized a need for revision and has provided that, as
part of the reduction in the number of deputies already decided upon for the coming
Bundestag elections, the constituency boundaries will be redrawn. Th at revision
deadline is constitutionally acceptable on the basis of unambiguously declared legis-
lative intent.

[The four opposing justices sought to distinguish the present circumstances


from the Courts earlier decisions upholding the overhang mandates. Specifi-
Po liti cal R epr e sen ta tion and Democr acy 247
cally, the opposing justices argued that changes in the electorate following re-
unification greatly increased the likelihood of overhang mandates. For this
reason, the Courts previous consideration of the issue had been marked by the
relative rarity of overhang mandates. The increasing frequency and number of
overhang mandates, however, meant the issue could no longer be ignored.
The four opposing justices concluded that Germanys election system, de-
spite the personalized constituency facet, was primarily a purely proportional
system. While they considered approaches that might nonetheless permit the
personalization of a purely proportional system, the opposing four justices
maintained that Bundestag seats must be distributed exclusively in accordance
with the proportional strength of the parties in the second-ballot votes. Only in
this way, the four opposing justices explained, can the guarantee of equal suf-
frage be satisfied. The constitutional solution in a purely proportional system,
the four opposing justices reasoned, would be to reduce a partys total number
of constituency mandates to conform with the partys allotment of seats based
on its proportional strength.]

Michael Brenner has explained that [t]he principle of equality of elections . . . means
not only that each vote has the same value but more importantly that each vote also
has the same effect in determining the outcome of the election.46 With their deci-
sion in Overhang Mandates II, the four prevailing justices concluded that the Courts
review of the election system should be restrained by the legislatures discretion over
the matter. In light of this deference, the four prevailing justices could not see fit to
discredit the Bundestags decision to emphasize the constituency votes in the over-
hang mandates context. Unlike the four opposing justices who found a constitu-
tional priority for the proportional element of Germanys elections, the four prevail-
ing justices were of the opinion that proportional and majority voting extended
democratic legitimation to the representatives and, thus, the Parliament, each in its
own, totally distinctive manner, without being able to say that one or the other vot-
ing system was more advantageous from the viewpoint of representative
democracy. 47
Overhang Mandates II is a fragile and equivocal constitutional endorsement of
Germanys mixed member-proportional system, a system that permits a differen-
tiation in the value or weight of votes as a result of the possibility of overhang
mandates. The overhang mandates phenomenon is not merely a theoretical con-
cern. In each of the last five federal elections overhang mandates have contributed
to the outcome of the parliamentary vote and to the eventual establishment of
governing coalitions. The governing coalition that emerged from the 2009 federal
election (including the center-right cdu and csu parties, and the liberal fdp party)
benefited from twenty-four overhang mandates, which boosted their slender par-
liamentary majority. Th is was the largest number of overhang mandates in the
Federal Republics history. The total number of Bundestag mandates was expanded
248 chapter five
from its statutorily anticipated 598 seats to 622 seats to accommodate the twenty-
four overhang mandates. In this constellation 312 seats were necessary for a parlia-
mentary majority and, counting the twenty-four overhang mandates, the coalition
held 332 seats.48

The Flawed 2005 Federal Election. The Courts acceptance of the electoral inequali-
ties that can result from overhang mandates has its limits. In Overhang Mandates II
the prevailing four justices remarked that the fundamental character of the election
as proportionally representative does not allow for unlimited differentiation in the
weight votes receive. One limitation on electoral inequal ity was announced by the
Second Senate in cases arising out of the 2005 federal election. In the State Lists Case
(2008) the Court ruled that portions of the Federal Election Act were unconstitu-
tional.49 The Court objected to the phenomenon known as inverse electoral effect,
which refers to the possibility that a party could lose seats if it received more second-
ballot votes or, conversely, could gain seats if it received fewer second-ballot votes.
Th is illogical result was made possible by the confounding machinations of the elec-
tion systems accounting for the parties proportional strength, the allocation of each
partys seats to the respective Lnder, and the priority given to direct constituency
mandates in the assignment of seats (sometimes leading to overhang mandates). Of
the many examples of the phenomenon that were presented to the Court in these
election review proceedings, perhaps just one will suffice to illustrate an inverse elec-
toral effect. The complainants noted that, in the 2005 federal election, the cdu would
have lost a seat in its overall tally of parliamentary mandates if it had received just
3,387 more second-ballot votes in the state of Saxony. The election in Saxony was es-
pecially relevant to the complaints because a runoff election in one district, held after
the results of the general federal election were clear, saw the parties calculating and
then strategically campaigning on the basis of the inverse electoral effect. In that
specific scenario the cdu urged its voters to abandon the party in their second bal-
lots because a strong proportional per for mance would cause it to lose one overhang
mandate.
The counterintuitive and incongruent possibilities associated with inverse elec-
toral effect led the Court to fi nd that the responsible provisions of the Federal Election
Act violated the constitutional principles of equality and directness of elections. The
Court explained that the guarantee of equality of chances for electoral success,
which it had derived from Article 38 (1) of the Basic Law in earlier decisions, is vio-
lated if the intended positive effect of ones vote is turned on its head and winds up
having an inverse effect. The Court emphasized that here, as in Overhang Mandates
II, it was exercising the judicial restraint necessitated by the discretion Parliament
enjoys as a result of the Basic Laws assignment of the details of election matters to
the Bundestag. But the Court simply could not agree that the provisions of the Fed-
eral Election Act that raised the specter of inverse electoral effect were justified by an
imperative reason. Nevertheless, in a remarkable sign of the deference the Court
feels it owes to the Bundestag in election matters, and out of concern for the practical
Po liti cal R epr e sen ta tion and Democr acy 249
and partisan risks inherent in negotiating and enacting a new election regime, the
Court exercised its authority to declare the relevant provisions incompatible with the
Basic Law but not void. The Court ordered new provisions, consistent with its consti-
tutional fi ndings in the case, no later than 30 June 2011. Th is had the controversial
effect of allowing the 2009 federal election to go ahead on the basis of an unconstitu-
tional election scheme.
The Second Senate noted another constitutional infi rmity in the 2005 federal elec-
tion in the Voting Computers Case (2009).50 The Second Senate ruled that the use of
voting computers in the 2005 election had violated the principle of the public nature
of elections that is based on Article 38 (1) in conjunction with Article 20 (1) and (2).
Th is principle, said the Court, requires that all essential steps of an election are sub-
ject to the possibility of public scrutiny. With a tone of skepticism that could have
been inspired by the butterfly ballots and hanging chads that plagued the Florida re-
count in the disputed 2000 U.S. presidential election, the Court concluded that com-
puter voting, shrouded as it is in dark technological arts, placed the electoral act at
the mercy of possible programming errors or fraudulent soft ware manipulation.
The Court found that voters must be able to determine that their votes have been cast
and recorded in an unadulterated manner without the benefit of special knowledge
about computer technology. Th is would be achievable, the Court suggested, if elec-
tronic votes were recorded and preserved in a parallel, manual system that is main-
tained and made available for the voters inspection. With the same modesty it dis-
played in the State Lists Case, however, the Court did not invalidate the results of the
2005 election on the basis of this constitutional violation. The Court concluded that
the impact of computer voting in the 2005 election was marginal, especially when
balanced against the constitutional interest in the continuing existence of a stable,
functioning democracy.

Districting. The prevailing justices in Overhang Mandates II rejected the view that the
second-ballot proportional vote was the singular constitutional mechanism for allocat-
ing seats in the Bundestag. Validating the Parliaments discretion to give the first-ballot
constituency votes an equal role in shaping the Bundestag (and with overhang man-
dates, perhaps a disproportionate role), the four prevailing justices recognized that the
principle of equal suff rage requires that the constituency districts be of equal size. They
found that, at the time of the 1994 election, the districts did not fulfi ll this mandate. The
prevailing justices were willing to accept the districts as they existed at that time be-
cause a debate over broader election reform already under way in the Bundestag prom-
ised redistricting in the coming years. Effective for the elections that were held in 2002,
the Thirteenth Law to Amend the Federal Election Act (1996) reduced the total num-
ber of Bundestag seats from 656 to 598. This had the result of reducing the number of
districts subject to the first-ballot constituency votes from 328 to 299. The redistricting
necessitated by this reform also sought to resolve the concern of the four prevailing
justices in Overhang Mandates II regarding the equality of the districts. The law now
requires 1) that the number of constituencies in each state will correspond to the states
250 chapter five
share of the total population and 2) that the population of a constituency may not devi-
ate from the average population of the constituencies by more than 15 percent.
The question of districting was at the center of the Electoral District II Case, in which
the Court articulated many basic principles regarding equal suff rage upon which the
four prevailing justices in Overhang Mandates II relied. The Court held that Germa-
nys electoral districts must be relatively equal in population. In this respect, the one-
person, one-vote principle is as embedded in the Constitutional Courts jurisprudence
as it is in that of the U.S. Supreme Court. But, as the 15 percent margin of deviation
permitted by the districting reform pursued in the late 1990s suggests, the Constitu-
tional Court has not insisted on strict mathematical equality among districts. In the
Electoral District I Case (1961) the Court announced that significant differences in
population among districts returning single deputies by simple majority vote would
constitute a violation of the principle of equal suff rage.51 The significance of the nexus
between the constitutional acceptability of the constituency facet of German elec-
tions and districting was thoroughly considered in Electoral District II.

5.7 Electoral District II Case (1963)


16 BVerfGE 130

[Relying on the Courts election review jurisdiction, the petitioner challenged


the validity of the 1961 federal election. He alleged that Schleswig-Holstein had
been divided into too many election districts relative to its population, and the
result had been three additional direct seats for the cdu. He claimed that no
Land was entitled to more representatives than warranted by its population.
The case offered the Constitutional Court an opportunity to consider the elec-
toral system in general and the principles under the Basic Law on which it must
be grounded. It set down new parameters for districting but refused to uphold
the complaint in the present case.]

Judgment of the Second Senate. . . .
B. I. 3. c. The principle of equal suff rage means that everyone should be able to exer-
cise his or her right to vote in as formally an equal way as possible. . . . In a pure ma-
jority voting system consisting of electoral districts of equal size, the weight of each
individual vote is equal when all ballots have the same value; electoral equality in a
system of proportional representation requires a similar weighting of votes. . . .
For this reason districts with approximately equal population figures must be cre-
ated when it is technically possible so that no state ends up with more districts than
its . . . share of the total population in the federal territory warrants. If all districts are
of approximately the same size, then their appropriate distribution among the states
will be guaranteed, thus keeping the number of excessive mandates at a constitution-
ally permissible minimum.
Po liti cal R epr e sen ta tion and Democr acy 251
. . . Yet, every district must be a balanced and coherent entity under the terms of
the Federal Election Act. Historically rooted administrative boundaries ought also
to coincide as much as possible with district boundaries. Demographic figures, of
course, do not remain constant. . . . Consequently, the constitutional requirement
that district boundaries be adjusted to demographic change in the interest of equal-
ity cannot be met completely. Federal legislation has taken these inherent difficulties
into account; for example, 3 (3) of the FEA limits the extremes of permissible devia-
tion from the average population of the constituencies to 33.3 percent. . . .
4. The fact that during the last parliamentary election the districts no longer com-
pletely satisfied the required equality of the right to vote does not mean that the divi-
sion of districts was unconstitutional at that time.
a. According to the 4 September 1962 report of the Election District Commission,
thirty-seven districts as of 1 January 1963 exceeded the limits set forth in 3 (3) of the
Federal Election Act. . . . At the same time Schleswig-Holstein had three districts too
many while Lower Saxony and Bavaria had a surplus of four; North Rhine
Westphalia, Rhineland-Palatinate, and Baden-Wrttemberg, on the other hand,
were short seven, one, and three seats, respectively. Because these inequalities spilled
over to influence the differential weight of votes in Schleswig-Holstein, the current
apportionment statute may not constitutionally be applied to the next federal parlia-
mentary election. The existing legislative districting has become unconstitutional
because it . . . no longer corresponds to up-to-date demographic figures and because
we can no longer expect an automatic readjustment of the current discrepancies. The
federal legislature is therefore obliged, during the current legislative period, to reor-
ganize the districts by reducing to a permissible level the deviations in their popula-
tion from the national average and by adjusting constituency lines to each states
share in the total population.
b. But the unconstitutionality of the apportionment of districts was not so clearly
evident on 17 September 1961 as to invalidate the apportionment from that date.
The current apportionment dates from 1949. . . . Since 1949 the population figures
of the states have shifted in absolute and relative terms. The greatest differences took
place in states particularly affected by the resettlement of refugees and in those af-
fected by internal migration owing to economic developments. . . .
The difficulty in determining the exact point when original constitution