The basic principle of theGerman Judicial System is the one of the “Rechtsstaat” (rule of law). Thismeans that any action taken by an executive authority has to be based on law.Furthermore, any decision taken by an authority can be challenged in court.The German legal systemdiffers fundamentally from the Anglo-Saxon common law system, in which courtsrely mainly on precedents from prior cases (case law). In Germany judges basetheir judgments on legal codes. The legal codes delineate abstract legalprinciples and the judges must decide the specific cases on the basis of thesestandards1.Although there are also somelandmark decisions that had a strong impact on the German society (especiallysome decisions of the Federal Constitutional Court), court decisions in Germanyin general haven’t got the same importance than the case law in the Anglo-Saxoncountries1.The Constitution directlyinvests supreme judicial power in the Constitutional Court as well as otherfederal courts and the courts of each Federal State (Länder).
The court systemis inquisitorial, thus judicial officers personally enter proof and testimonyinto evidence, with the plaintiffs and their counsel merely assisting, althoughin some courts evidence can only be tendered by plaintiffs2.The primary legislationconcerning court organization is the Courts Constitution Act. The courts arecharacterized by being specialist, regional, and hierarchically integrated atthe federal level. The “ordinary courts” areresponsible for criminal matters, civil cases, and voluntary jurisdiction.
There are four levels. The local courts(Amtsgerichte) as courts of first instance are competent in civil cases –mainly in cases with a litigation value of up to €5000. They are also competentin matters independent of the value of litigation, such as rental disputes andfamily and maintenance matters. Cases in local courts can be heard by anindividual judge3.The regional courts (Landgerichte) as courts of firstinstance are competent in civil law cases involving all disputes not assignedto the local courts. These are usually disputes with a litigation value of morethan €5000. In principle, cases before the regional courts are also heard by anindividual judge. Difficult matters and cases of fundamental importance are,however, decided in chambers: for example, a tribunal made up of threeprofessional judges.
Regional courts of second instance hear cases in civiltribunals within the regional courts. These are usually composed of threejudges, who hear appeals against the judgements of the local courts. Furthermore,chambers for commercial matters can be established at regional courts. Theseare usually responsible for disputes of first and second instance betweenbusinesspeople/merchants.
These chambers are composed of one professional judgeand two lay judges who are merchants3.The higher regional courts (Oberlandesgerichte) areusually courts of second instance. In civil cases, they hear appeals againstjudgements of the regional courts, and appeals against judgements of the localcourts in family matters. The senates of the higher regional courts consist inprinciple of three professional judges.
Civil cases that present no specialdifficulties and are not of fundamental importance can, however, be transferredto individual judges3.The highest ordinary court is the Federal Court ofJustice (Bundesgerichtshof), which is the court of last resort and deals withappeals on points of law only. The senates of the federal high court arecomposed of five professional judges.
In criminal cases, dependingon their nature, each of the first three courts can have jurisdiction, whereasin civil proceedings it will be either the local court or the regional court.One or two other courts may be appealed to on points of fact or law. The German “specializedcourts” are divided into labor courts, social courts, administrative courts andfinancial courts. Labour courts essentially handle labour lawdisputes arising from contractual relationships between employees and employers(individual labour law). They also handle collective agreement disputes, e.g.
involving trade unions and employers’ associations (collective labour law), orbetween an employer and a works committee. The courts of first instance are thelabour courts (as courts of the Länder). Cases are heard in chambers by onepresiding professional judge and two lay judges (one is summoned from theemployee’s area and the other from the employer’s area). Certain decisions thatare not part of the oral proceedings are taken by the presiding judge withoutinput from the lay judges. “Higher labour courts” (Landesarbeitsgerichte, whichare also courts of the Länder) are responsible for handling appeals andcomplaints against labour court judgments. These courts also comprise oneprofessional judge and two lay judges (one from the employee’s area and theother from the employer’s area).
Decisions at the highest instance are taken bythe Federal Labour Court (Bundesarbeitsgericht) and its tribunals are composedof one presiding judge, two additional professional judges and two lay judges(one from the employee’s area and the other from the employer’s area)4.Three different branches of the court system areresponsible for examining administrative decisions: the general administrativecourts, the social courts and the financial courts. An important characteristicof the general administrative courts and the social and financial courts isthat they apply the principle that it is the court’s duty to satisfy itself ofthe facts (Amtsermittlung). This means that the courts must investigate thefacts of the case on their own initiative (i.e. not only at the request of oneof the parties, and without being bound by the evidence presented). This isbecause the material correctness of the decision of the case affects the publicinterest5.
The social courts, like the administrative courts,have three levels encompassing an appropriate division of tasks. Besides theregional social court (Sozialgericht) as a court of first instance, there is ahigher social court (Landessozialgericht) for each of the Länder, which is anappeal court, and the Federal Social Court (Bundessozialgericht), which acts asthe supreme court of appeal on points of law (‘Revision’). The social courtsare responsible mainly for hearing disputes in matters of social security(pensions, accident and sickness insurance, and insurance for convalescentcare), unemployment insurance and social welfare.
In the social courts,decisions are also taken, in principle, by panels of judges. A social court iscomposed of one professional judge and two lay judges. Higher social courts andthe Federal Social Court comprise three professional judges and two lay judges5.The regional administrative courts are usually courtsof first instance. The higher administrative courts are primarily appealtribunals, which examine the decisions of courts of first instance from a legaland factual point of view. With very few exceptions, the Federal AdministrativeCourt is an appeal court that examines points of law only. The generaladministrative courts are responsible for all disputes between administrationsand private persons concerning the correct application of administrative lawsand regulations.
However (in place of the administrative courts) the ordinarycourts become responsible when the case involves the participation of theadministration in the economy under civil law (acting like a private business)and for all disputes arising from such activities. Furthermore, disputes thatare assigned by law to the ordinary courts, the social courts or to thefinancial jurisdiction are exempted from general administrative jurisdiction. Decisionsof the administrative courts are taken by panels of judges.
The regionaladministrative courts are composed of three professional judges and two layjudges. The higher administrative courts are usually composed of threeprofessional judges. The Federal Administrative Court comprises fiveprofessional judges. However, in regional administrative courts, cases can alsobe referred to an individual judge.
The financial courts consist of financial courts offirst instance and the Federal Finance Court (Bundesfinanzhof), which acts asthe supreme court of appeal on points of law. The jurisdiction of the financialcourts mainly covers disputes on public levies, taxes and customs. Thefinancial courts of first instance are composed of three professional judgesand two lay judges.Separate from the fivebranches of jurisdiction is the Federal Constitutional Court(Bundesverfassungsgericht), which is the country’s supreme court. Itcan rule in constitutional matters and it is known to have contributed to thedevelopment of the Federal Republic of Germany.
The difference between theGerman Federal Constitutional Court and federal courts is that theConstitutional Court can be appealed to in civil or criminal matters only ifconstitutional rights have been breached, otherwise it cannot act as anappellate body in the judged case6. The 16 judges of thesupreme court monitor adherence to and compliance with the Basic Law, theyadjudicate competence disputes between the federation and the Länder. They ruleonly upon petitions and their decisions are final. The supreme court holds amonopoly on interpretation of the constitution with regard to all Germanjurisdictions. All organs of the federation are bound to uphold to the rulingsof the supreme court.
The Federal ConstitutionalCourt was enshrined in the German constitution adopted after World War II andreflects lessons learned from the Nazi era (1933–1945), when the power of thefederal government was unchecked. Although there was some limited precedent forjudicial review in German constitutional history, the far-reaching jurisdictionof the Federal Constitutional Court was influenced primarily by the model ofthe Supreme Court of the United States and the Austrian Constitutional Court.The Federal ConstitutionalCourt has two separate panels (senates) of 8 judges each (originally 12), andeach panel has jurisdiction over distinct areas of constitutional law. Judgesserve a single, non-renewable 12-year term. However, service may not extendpast the retirement age of 68. Half the membership is elected by the Bundesrat(the upper house of the German legislature), the other half by a specialcommittee of the Bundestag (the lower house). To be elected, a judge mustsecure a two-thirds majority of votes cast.
This rule has generally preventedany party or coalition from determining the court’s composition.Among the Court’s powers of review, three basicvariants of constitutional review will be emphasized in what follows. The firstconsists of the Court’s review powers vis-a?-vis the organization of the state,that is, federal-state conflicts, conflicts between the federal government andthe La?nder, conflicts between La?nder (Bund-La?nder-Streitigkeit), anddisputes between high federal organs (Organstreit). The second isconstitutional review in the narrow sense (Normenkontrolle) Here the Courtexamines the constitutionality of the law.
Within this rubric one has occasionto distinguish between abstract review and concrete review. Where abstractreview (abstrakte Normenkontrolle) is concerned, the federal government, thegovernment of a Land, and an aggregate of no fewer than one-third of themembers of the Bundestag are all empowered to turn to the FederalConstitutional Court for a decision on the constitutionality of a law, quiteapart from any concrete case. Contrariwise, in concrete review (konkreteNormenkontrolle), where a court of ordinary jurisdiction (any court other thanthe Federal Constitutional Court), deciding a case, is convinced that theapplicable federal law or Land law is unconstitutional, it must refer theconstitutional question to the Federal Constitutional Court. In short, unlikethe situation in jurisdictions with decentralized constitutional review, mostprominently in the United States, no court of ordinary jurisdiction has powerto declare an applicable law invalid in a concrete case. In other words, thepractice in the Federal Republic of Germany is, today, a prominent example ofcentralized constitutional review. Finally, the third basic variant is theconstitutional complaint. Any person can claim that an action of the state, afederal law or a Land law, a decision of any court of ordinary jurisdiction or,finally, an administrative action violates one or another of his or her basicrights, as granted in the German Basic Law7.
When it is said that the Federal Constitutional Courtis “without a historical model”, this, if taken literally, is surely wrong.Part and parcel of the creation of constitutional review in the FederalRepublic of Germany was its fully developed system of judicial control, and fordifferent parts of this system there existed different models at differenttimes and in different places. First of all, the question arises as to theextent to which models can be found in Germany itself. On the one hand, verymodest beginnings of constitutional review can be found in the Court of theImperial Chamber (Reichskammergericht) in the Holy Roman Empire. On the other,after the fall of the empire in the German Confederation (Deutscher Bund) after1815, and in the North German Confederation (Norddeutscher Bund) after 1867, aswell as in the German Empire after 1871, no comparable institutions wereestablished. To be sure, the Frankfurt Constitution of 1848–49 could boast of ascheme of constitutional review including constitutional complaints, disputesbetween high federal organs and extended review powers for settlingfederal-state conflicts, but the constitution never went into effect. In theWeimar Republic, as noted above, only federal-state conflicts and a limitedpower of constitutional review in the narrow sense by the High Federal Court(Reichsgericht) were recognized.
In Germany’s past one finds, then, numerouselements reflected in the system of constitutional review of the FederalRepublic of Germany, such that it is not inappropriate to speak of a continuingGerman tradition. Still, a complete system of review powers awaited the FederalConstitutional Court, and in this respect, it represents a fundamentally newdevelopment, going well beyond all that had pointed toward it in the tradition8.1 The GermanJudicial System, European Consumer Centre Germany -https://www.evz.de/fileadmin/user_upload/eu-verbraucher/PDF_Englisch/Brochures/Legal_sytem_Germany.pdf2 GermanJudicial System -http://saint-claire.org/wp-content/uploads/2016/01/German-Judicial-System.pdf3 Ordinary courts, EuropeanJustice -https://e-justice.europa.eu/printContentPdf.do?plang=en&idTaxonomy=18&idCountry=de&member=1&action=printContentPdfMS&initExpCourtRes=14 Specialised courts, European Justice -https://e-justice.europa.eu/printContentPdf.do?plang=en&idTaxonomy=19&idCountry=de&member=1&action=printContentPdfMS&initExpCourtRes=15 Specialisedcourts, EuropeanJustice -https://e-justice.europa.eu/printContentPdf.do?plang=en&idTaxonomy=19&idCountry=de&member=1&action=printContentPdfMS&initExpCourtRes=16 A Guide to German Courts -https://www.lawyersgermany.com/a-guide-to-german-courts7 The Beginnings ofGermany’s Federal Constitutional Court, Martin Borowski -http://www.direitocontemporaneo.com/wp-content/uploads/2014/02/The-Beginnings-of-Germany-s-Federal-Constitutional-Court.pdf8 The Beginnings ofGermany’s Federal Constitutional Court, Martin Borowski -http://www.direitocontemporaneo.com/wp-content/uploads/2014/02/The-Beginnings-of-Germany-s-Federal-Constitutional-Court.pdf