Schumann's formula

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The Schumann's formula serves as the Heck'sche formula the delimitation of the audit mandate of the Federal Constitutional Court from that of the specialized courts in the context of the merits of constitutional complaints against judicial decisions. This delimitation of competencies is necessary because the specialized jurisdiction has to observe both simple law and constitutional law, but the standard of examination available to the Federal Constitutional Court is limited to constitutional law (no “super-revision”). The Schumann formula owes its name to its founder, Ekkehard Schumann , who developed it in his 1963 dissertation “Constitutional and human rights complaints against judicial decisions”.

Schumann's formula

Ekkehard Schumann described his method of delimitation, which was received by jurisprudence and science as Schumann's formula, as follows:
“An (alleged) misinterpretation of simple statutory law is irrelevant for the Federal Constitutional Court if the ordinary legislature, when regulating the matter in question, leads to the same legal consequences as the (allegedly) incorrect interpretation could have come "
According to this formula, the constitutional complaint against a judicial decision is justified," if the contested judge's judgment adopts a legal consequence that the ordinary legislature should not enact as a norm. "

The dogmatics of Schumann's formula

Ekkehard Schumann's procedural approach

Ekkehard Schumann approaches the conflict of competencies between constitutional jurisdiction and specialized jurisdiction solely from the point of view of the constitutional complaint review standard .

He is therefore primarily not concerned with the question ( relevant to private law ) of whether and to what extent constitutional laws affect material law at all, because this question is precisely that of material law. Even if civil judgments are the subject matter of the constitutional complaint procedure, the third-party effect of the fundamental rights does not play a role in the application of Schumann's formula, but must be answered beforehand - separately from Ekkehard Schumann's formula.

The derivation of the formula by Ekkehard Schumann

The starting point: the distinction between different types of constitutional complaint

Ekkehard Schumann initially approaches his formula from the subject of his investigation, the constitutional complaint . He is first considering a consideration from the aspect of exhaustion of legal recourse. Since the complainant must in principle exhaust the legal process before filing a constitutional complaint, his complaint is regularly directed against a judicial decision; Schumann simply calls this type of constitutional complaint a judgment constitutional complaint. The underlying legal act is also part of the proceedings, but only indirectly. If the complainant has not exhausted the legal process, he or she immediately turns against a legal sentence or against an individual official act. Schumann calls this type of constitutional complaint a direct legal constitutional constitutional complaint or a direct administrative act constitutional complaint . Ekkehard Schumann then rejects this consideration based on the admissibility requirements of the constitutional complaint , since it does not penetrate to the justification; Rather, the focus here is on what, according to the complainant's assertion, the violation of fundamental rights lies. This can either be a direct legal sentence or the interpretation of a legal sentence: If the complainant complains that his basic rights have been violated by a legal sentence , Schumann speaks of a direct legal sentence constitutional complaint . Schumann describes a constitutional complaint as a concealed legal complaint with which the complainant objects against an individual file. There, too, the constitutional complaint was directed against the underlying legal act, but only indirectly, i.e. concealed. The complainant's complaint that he was adversely affected by the interpretation of a legal sentence (whose constitutionality is not questioned) is neither directly nor covertly directed against a legal sentence. Ekkehard Schumann calls it interpretative constitutional complaint.

The interpretative constitutional complaint as the neuralgic point of the relationship between constitutional and specialized jurisdiction

Since the interpretation of simple law is originally incumbent on the specialized courts, i.e. is not a typical task of the Federal Constitutional Court, the core area of ​​constitutional jurisdiction is left out of the constitutional complaint on interpretation; therefore the cognition of the Federal Constitutional Court should be restricted.

The distinction between restrictable and non-restrictable basic rights as well as unconstitutional and constitutional terms

Schumann differentiates between restrictable and non-restrictive basic rights. The latter shape (“coined” ( Peter Lerche )) the Basic Law itself, the corresponding basic rights thus contain constitutionally shaped ( constitutionally determined) terms. If the user of the law disregards such a term when interpreting the simple law (which only clarifies the constitutional term), an interpretive constitutional complaint that rejects the constitution would be successful because the interpretation directly contradicts the Basic Law.
In the case of constitutionally indeterminate terms, the simple right (“shaping basic rights” (Lerche)) determines the scope of the basic right more closely. According to Schumann , an interpretive constitutional complaint that criticizes an unconstitutional interpretation of such terms is not necessarily successful. For the (supposed) misinterpretation could on the one hand contradict simple law, but correspond to the constitutionally indeterminate concept and thus to the Basic Law; on the other hand, it can contradict both simple law and the constitutionally indefinite term, and thus the Basic Law. Only in the latter case does Schumann consider the constitutional complaint to be successful. When interpreting simple law based on unconstitutional terms, the judge thus has leeway until the threshold of unconstitutionality is crossed. According to Schumann, this leeway corresponds to that which ordinary legislators are entitled to when passing laws that specify the fundamental right containing an undefined concept. The Federal Constitutional Court, which has to decide on such an interpretation, is therefore confronted with the same set of questions as with the review of norms .

Schumann's formula alone resolves the conflict of competencies for the interpretative constitutional complaint, which complains about a misinterpretation of constitutionally indefinite terms

Ekkehard Schumann only wants his formula to be used for the area of ​​a criticized misinterpretation of a constitutionally indefinite term .

An (alleged) misinterpretation of simple statutory law is irrelevant for the Federal Constitutional Court, i.e. it does not lead to the success of an interpretative constitutional complaint if the ordinary legislature could have come to the same legal consequence as the judge with his (alleged) incorrect interpretation when regulating the matter in question without violating fundamental rights.

The practical meaning of Schumann's formula

In practically most cases, the Federal Constitutional Court decides on the basis of the criteria of Ekkehard Schumann's formula . The former President of the Federal Constitutional Court, Andreas Vosskuhle , also states that Schumann's formula “clearly dominates practice”.

Symposium for the 50th anniversary

On the occasion of the 50th anniversary of the publication of Ekkehard Schumann's dissertation, the Law Faculty of the University of Regensburg organized a scientific symposium in conjunction with the Legal Study Society of Regensburg on June 14, 2013, which focused in particular on the ongoing effects of Schumann's formula in constitutional practice . The main lecture on the topic "The meaning of Schumann's formula for legal systems with complaints about the constitution of a judgment was given by the Göttingen constitutional lawyer Christian Starck .

Ekkehard Schumann , who gave the formula its name, said at this symposium on the question of why he called his concept a formula: "It should be something memorable, manageable and not just a big principle and it has stayed that way."

The former Federal Constitutional Court judge Udo Steiner confirmed at this event that the Schumann formula had served as a guideline for numerous decisions of the Federal Constitutional Court without the court having directly quoted Schumann: "One can speak of a friendly adoption of the formula".

literature

  • Ekkehard Schumann: Constitutional and human rights complaints against judicial decisions , Berlin: Duncker & Humblot, 1963 [= publications on public law, Volume 11]
  • Herbert Roth (ed.): "Symposium '50 Years of Schumann's Formula" , Baden-Baden: Nomos, 2014, ISBN 978-3-8487-0810-9 [= Writings of the Legal Study Society Regensburg, Vol. 36]
  • Ulrich Steinwedel: "Specific constitutional law" and "simple law". The scope of the BVerfG's examination of constitutional complaints against court decisions . Diss. Jur. Göttingen 1976. Baden-Baden: Nomos Verlagsgesellschaft, ISBN 3-7890-0226-7 [= studies and materials on constitutional jurisdiction, vol. 6] [here v. a. P. 64ff]

Web links

Individual evidence

  1. ↑ See BVerfGE 1, 4 (5); 1, 5 (6); 1.97 (103); 7, 198 (207); 11, 343 (349); 12, 113 (124); 18, 85 (92); 31, 364 (368); 42, 143 (148).
  2. ↑ Ekkehard Schumann: Constitutional and human rights complaints against judicial decisions, Berlin 1963.
  3. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 206.
  4. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 207.
  5. ↑ Cf. Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 215 f.
  6. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 118.
  7. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 119.
  8. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 119.
  9. ↑ Cf. Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 119.
  10. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 120.
  11. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 120.
  12. ↑ See Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 194.
  13. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 200.
  14. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 200 f.
  15. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 204.
  16. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 204.
  17. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 205.
  18. ↑ Cf. Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 206.
  19. ↑ Cf. Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 204 ff.
  20. ↑ Ekkehard Schumann: Constitutional and human rights complaint against judicial decisions, Berlin 1963, p. 206.
  21. ↑ See for example BVerfGE 59, 231 (256 f.); 63, 45 (67); 69, 315 (372); 81, 29 (31 f.); 82, 6 (15 f.); 99, 129 (139).
  22. ↑ Andreas Voßkuhle, in: von Mangoldt / Klein Starck (ed.): Commentary on the Basic Law, Volume 3, 6th Edition, Munich 2010, Art. 93 No. 61 (with footnote 319).
  23. ↑ Conference honors the founder of Schumann's formula