Concrete control of norms

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During the specific review of norms , a court reviews the constitutionality of a law as part of an ongoing procedure.

General

There is concrete control of norms in almost all states in which there is a constitutional jurisdiction. If there is constitutional jurisdiction in the state, courts can almost always check norms for their constitutionality in court proceedings (unit model) or have them checked by a special court (separation model) (→ unit and separation model ). Exceptions are or were Luxembourg and (until 2008) France, which did not have this option. In some countries there are various restrictions, for example on the review of sub-statutory norms (Netherlands), on laws only of the cantons, not of the federal government (Switzerland), on only obvious constitutional violations (Sweden).

At the level of the European Union there is a similar procedure with the preliminary ruling procedure before the Court of Justice of the European Union (Art. 267 TFEU).

Situation in Germany

In Germany, the Federal Constitutional Court and the state constitutional courts exercise constitutional jurisdiction. The courts of ordinary jurisdiction and the specialized courts submit a legal norm to the constitutional courts in the event of doubts about its constitutionality (the so-called judge submission or submission for short ).

Germany thus follows the separation model , which does not leave the decision on constitutionality and rejection power to the “simple” courts, but to special constitutional courts.

The Basic Law is right at the top of the hierarchy of norms in the Federal Republic of Germany. Subordinate law must according to Art. 1 para. 3, 20 para. 3 of the Basic Law (GG) are therefore in line with the requirements of the higher-ranking Basic Law. According to traditional doctrine, illegal law is null and void. At the same time, all public authorities and thus also the courts are bound by the provisions of the Basic Law when applying the law, Art. 1 Para. 3, 20 Para. 3 GG.

If a court considers a law to be unconstitutional, it would violate the Basic Law if it applied the law. At the same time, however, a constitutional violation can often not be ascertained without further ado, but rather can be determined through interpretation. This interpretation usually offers scope for interpretation and thus harbors uncertainties. Different courts could therefore come to different conclusions with regard to the assessment of the constitutionality of a provision. As a result, there would be legal fragmentation and legal uncertainty.

The separation model is intended to prevent this. If a court is convinced that a norm is unconstitutional, it must be submitted to a special constitutional court. Binding decisions about the constitutionality of a norm are concentrated at the Federal Constitutional Court. The Federal Constitutional Court comprehensively reviews the submitted norm for its constitutionality. In that regard, it is not bound by the opinion of the referring court. The test standard is the entire Basic Law.

The Federal Constitutional Court either declares the law pursuant to Sections 82 (1), 78, 31 (2) of the Federal Constitutional Court Act (BVerfGG) are wholly or partially null and void or establish its compatibility with the Basic Law. Under special conditions, a mere declaration of the incompatibility of the norm with the Basic Law can also be considered.

The requirements for a template for specific standards control are high; the Federal Constitutional Court requires the referring court to give very precise reasons for the reason for the norm

  • on the one hand is relevant to the decision and they
  • on the other hand , is held to be unconstitutional by the court .

Delimitation from abstract norm control
The scope of the examination and the legal effects of the specific norm control procedure are identical to those of the abstract norm control .

The two types of procedure differ, however, with regard to the group of "applicants" or those entitled to submit documents : The abstract control of norms can be carried out by the federal government , a state government or a quarter in accordance with Art. 93 (1) No. 2 F. 1 GG and §76 BVerfGG of the members of the Bundestag at the Federal Constitutional Court. Concrete control of norms, on the other hand, can only be submitted by a court within the meaning of Article 100.1 of the Basic Law .

Situation in Austria

See: Regulatory Control # Austria

Comparison with the US Supreme Court

In contrast to the Federal Constitutional Court , the US Supreme Court has no abstract judicial review and no constitutional complaint (only specific judicial review). It is a constitutional court in the functional, but not in the organizational sense (→ constitutional jurisdiction ).

Both courts only take action if they are called upon. You have no right of initiative.

See also

Individual evidence

  1. ↑ Birgit Enzmann, The democratic constitutional state between legitimation conflict and openness to interpretation , Wiesbaden 2009, p. 34 ff.
  2. ↑ Kai Hamdorf: The admissibility requirements of the judge's submission to the Federal Constitutional Court and the constitutional courts of the federal states , Journal for Public Law in Northern Germany (NordÖR) 2011, 301 (PDF; 288 kB)