Constitutional Complaint (Germany)

from Wikipedia, the free encyclopedia

Under the legal concept constitutional complaint is understood in Germany, the complaint of a legal entity , after which it is in its fundamental rights or fundamental rights equal rights through acts of state power looks injured.

General

In many states, a constitutional lawsuit in the form of a lawsuit is an impermissible extension of the professional courts . That is why in Germany there is talk of a constitutional complaint, which represents an extraordinary legal remedy and is not a (further) legal remedy . The remedy is intended to ensure that either the unconstitutionality affecting constitutional law is established or unconstitutional law is abolished. To this end, the Constitutional Court cancels the relevant measure or declares laws unconstitutional and thus null and void .

Independent constitutional jurisdiction, as in Germany, depends on whether a state has a unitary or a separation model. In the standard model there is no independent constitutional jurisdiction; A court of general jurisdiction (for example in the USA , Norway or Switzerland ) decides on the constitutionality of the legal act to be checked . In the separation model, however, a special court ( Germany , Austria , Italy ) decides . The standard model only knows a specific control of norms (USA, Switzerland), the separation model also grants the possibility of reviewing legal acts in a separate constitutional court procedure outside of a specific judicial process (so-called abstract norm control ; Germany, Austria). Mixed forms are also possible.

The real constitutional complaint in Germany has only existed under constitutional law since January 1969, before it was not provided for by law. As early as September 1951, the Federal Constitutional Court (BVerfG) made it clear that the constitutional complaint was not an additional legal remedy for the proceedings before the ordinary courts or administrative courts . "It is a special means of legal protection for the procedural enforcement of fundamental rights or rights equivalent to them".

The case law developed primarily in these proceedings by the Federal Constitutional Court on the fundamental rights from Art. 1 to Art. 19 of the Basic Law (GG) and the rights equivalent to fundamental rights mentioned in Art. 93 (1) No. 4a GG had and still has a decisive influence on legal practice and the further training of the law in almost all areas of life.

history

After the constitutional complaint in the unrealized Paulskirche constitution of 1849 already in §§ 126 lit. g, it was first introduced in Bavaria in 1919 by the Bamberg Constitution . However, this constitutional complaint could only be directed against individual official acts, not, like today's constitutional complaint, also against acts of the legislature. After the Second World War , the legal remedy was incorporated into the new constitution of the Free State of Bavaria from 1946 . In Hesse , a corresponding constitutional remedy was introduced with the likewise revised state constitution of the state of Hesse of 1946 , the fundamental rights action before the State Court .

During the deliberations on the creation of the Basic Law in the Parliamentary Council, the adoption of these models at the federal level was discussed, but initially not implemented. It was only with the Federal Constitutional Court Act (BVerfGG) of March 12, 1951 that legal remedies became simple law, i. H. outside of the Basic Law, introduced ( § 90 ff. BVerfGG).

The constitutional complaint was only inserted into the Basic Law itself and thus withdrawn from a simple amendment to the law by the Nineteenth Act amending the Basic Law of January 29, 1969 (Article 93 (1) No. 4a of the Basic Law). The impetus for this was the introduction of the right of resistance in Article 20, Paragraph 4 of the Basic Law, which was intended as a counterweight to the changes in the framework of the emergency constitution . Violations of the same should also open the constitutional complaint. On the occasion of this addition, the legal remedy, previously only regulated by simple law, should be anchored in the constitution itself.

Legal issues

Assessment and decision-making standards

The constitutional complaint serves to protect the fundamental rights from Articles 1 to 19 of the Basic Law as well as certain rights equivalent to fundamental rights, e.g. B. the right to vote from Art. 38 GG. Only violations of these rights can be objected to with a constitutional complaint, other legal violations, for example against simple legal provisions, cannot.

Accordingly, the Federal Constitutional Court does not examine the comprehensive legality of an alleged legal violation, but only whether specific constitutional law has been violated.

General

According to Art. 93, Paragraph 1, No. 4a of the Basic Law, anyone who claims to have been violated in one of their fundamental rights or certain rights equivalent to fundamental rights by the public authority, i.e. by the legislature , the government and authorities or the courts , can lodge a constitutional complaint with the Raise the Federal Constitutional Court. The possibility to initiate the control of the development of state power by the highest German court is not only in the hands of state bodies, but also with the citizens affected by their basic rights. The parallel provision for the constitutional complaint can be found in Section 90 (1 ) BVerfGG .

The constitutional complaint is limited to the protection of fundamental rights or certain rights equivalent to fundamental rights and does not protect against other legal violations. In principle, all legally relevant measures by the legislative , executive and judicial authorities can be reprimanded . As a rule, constitutional complaints are filed against court decisions of the last instance, rarely also directly against laws. Directly against government and agency actions, e.g. B. Administrative acts , a constitutional complaint is usually out of the question because the complainant must first have taken legal action and must have exhausted it.

The constitutional complaint comprehensively secures the fundamental rights against any act of state violence, but is only available to those who are themselves, currently and directly affected by a violation of the law. It is an extraordinary legal remedy and does not appear as an alternative to the judicial system of legal protection, but is subsidiary to it : it can only permissibly be raised if all ordinary legal remedies have previously been exhausted without success. A complainant must therefore - as a rule - first sue in court against an encroachment on fundamental rights and can only file a constitutional complaint after the legal process has been exhausted , i.e. after all possible legal remedies have been lodged.

The constitutional complaint has no suspensive effect , legal force and enforcement of an attacked decision remain in place, unless the Federal Constitutional Court issues an interim order upon application . However, the filing of a constitutional complaint can occasionally trigger a de facto suspensive effect and mean that an attacked decision is temporarily not enforced. There is no legal obligation to do so, as long as the corresponding has not been regulated by an interim order.

details

The Federal Constitutional Court has put a leaflet on the Internet that provides detailed information on the legal basis and requirements of the constitutional complaint, in particular the requirements for form and content as well as the further admissibility requirements (appeal period, exhaustion of legal recourse), possibilities of representation, the acceptance procedure and the court costs.

species

A distinction must be made between the legal constitutional complaint, which results from acts of the legislature (unconstitutional legislation) and the judgment constitutional complaint, which results from court judgments. The latter are only checked for violations of so-called “specific constitutional law”. Acts of the executive branch concern, for example, unconstitutional administrative acts, which as such cannot be the subject of a complaint to the BVerfG, but for which all legal remedies must be exhausted up to the last instance. They then belong to the appeal on the constitutional judgment.

Complainant

All fundamental rights holders come into question as complaining legal subjects , i.e. natural persons and legal persons , insofar as the fundamental rights are by their nature applicable to the legal person, such as freedom of occupation or freedom of property . Only decisions of the BVerfG are not constitutional complaints in order to avoid an infinite recourse . The constitutional complaint can only be submitted to the BVerfG in writing (or by fax ) after all legal recourse has been exhausted . So it is not enough for a complainant to be angry about some kind of injustice : his own fundamental rights must be violated and he must be himself, presently and directly violated. The complainant must be the bearer of the fundamental right or right equivalent to fundamental rights.

There are no special features for German citizens, with the exception of the basic right to asylum , they can in principle invoke all basic rights and rights equivalent to basic rights. Non-EU foreigners are entitled to complain, provided that they can invoke a basic right that foreigners also have. If it is a matter of “basic German rights” (e.g. Article 12, Paragraph 1 and 2 of the Basic Law), non-EU foreigners are protected by the general freedom of action of Article 2, Paragraph 1 of the Basic Law as a basic right of protection in personal terms. According to Article 18 TFEU , which prohibits discrimination on the basis of nationality , since the Treaty of Lisbon that came into force on December 1, 2009, non-EU nationals can also invoke the articles widely known as "German fundamental rights".

Domestic legal persons under private law are entitled to appeal insofar as a fundamental right by its nature is applicable to them in accordance with Article 19 (3) of the Basic Law. In particular, legal persons with full legal capacity under private law such as the legal association , the stock corporation (AG), the limited partnership for shares (KGaA), the limited liability company (GmbH), partially legal legal persons such as the open trading company (OHG), come into consideration Limited partnership (KG), civil society (GbR) or, if applicable, the so-called non - legal association as well as other associations of persons , provided they have a fixed structure, are set up for a certain period of time and the fundamental right is essentially applicable to them.

Legal persons under public law are always incapable of fundamental rights and can therefore - with the exception of fundamental procedural rights - raise no constitutional complaint, unless, as an exception, they are directly assigned to the area of ​​life protected by a specific fundamental right as independent, independent or in any case distanced institutions This area of ​​life serves the citizens to realize their individual basic rights, such as B. Public broadcasters , universities and faculties .

Political parties and members of parliament are only capable of fundamental rights and have the right to appeal if, regardless of their constitutional status, they object to rights like everyone else, for example in the defense against measures contrary to equality by sovereigns (broadcasting times during election campaigns) or in property disputes, but not if they defend their constitutional status assert against constitutional organs ( organ dispute proceedings ).

The complaint must be justified in detail. The complainant must name the violated fundamental right and the offending act: the complaint must specify the subject matter of the dispute and state which act of public authority has caused the complainant to feel violated in which fundamental right or right equivalent to fundamental rights. In particular, the complainant should send copies of the decisions challenged by him. It must not be left to the Federal Constitutional Court to investigate the matter ex officio in all directions, so to speak "into the blue". Complaints that do not meet these strict requirements are not even accepted by the court for decision.

The procedure is basically free of court fees ; In exceptional cases, an abuse fee can be imposed. The Federal Constitutional Court only grants legal aid and assigns a lawyer in very rare exceptional cases .

Dismay

The complainant must be himself, currently and directly concerned . With these criteria, the Federal Constitutional Court has created a flexible set of instruments and a multi-layered filter to fend off unnecessary complaints from a legal protection point of view, to distinguish the constitutional complaint from the popular one and to enforce the principle of subsidiarity.

  • Self- concern presupposes that the complainant asserts the violation of his own rights , not the rights of third parties or merely objective constitutional law. Standards that are already unsuitable for interfering with fundamental rights in terms of structure and content are ruled out from the outset as subject matter. The complainant's own fundamental rights must be affected; only the right holder himself can lodge a constitutional complaint. Self-concern is always given when the complainant is the addressee of the challenged regulation, but can also exist if he is legally inevitably affected as a third party (shop closing law also affects consumers).
Self-concerned is always ruled out if a complainant only claims a purely objective illegality of state action without invoking or being able to invoke his fundamental rights. A constitutional complaint that merely complains about the incorrect application of objective constitutional law is therefore inadmissible for this reason alone, such as a constitutional complaint against the dissolution of the Bundestag, even if the dissolution should be objectively unconstitutional: the complainant could not name a fundamental right in which he himself was concerned would.
  • The complainant must be presently , i.e. already or still affected; simply being affected virtually is not sufficient.
The current concern generally presupposes a law that has come into force, since a norm only has legal effect from this point in time. The Federal Constitutional Court considers a current complaint to ensure effective protection of fundamental rights to be given even before it comes into force, if the future legal effects are already clearly foreseeable and certain for the complainant. Exceptionally, a constitutional complaint is therefore also permissible without current concern if a norm already forces the person concerned to make decisions that cannot be corrected later or prevents them from making dispositions which he can no longer make up after the later law enforcement or if an attacked norm only has substantive legal effects in the future, but the norm addressees of the norm have already been determined and it is clear how the complainants will be affected, e.g. B. Broadcasting fees. Despite the fact that it has been dealt with in the meantime, the Federal Constitutional Court affirms the presence of the authority to lodge a complaint even if there is a risk of repetition or if the measure that has become obsolete continues to significantly impair the complainant, in the case of previous deprivation of liberty, if otherwise the clarification of a constitutional question of fundamental importance remains undone and the alleged violation of fundamental rights is particularly serious or the person concerned is particularly serious After the regular course of business, a decision by the Federal Constitutional Court could hardly be obtained.
  • The impairment must affect the complainant directly . The requirement of being directly affected is fulfilled if the challenged norm intervenes directly in positions protected by constitutional rights, without the need to implement the “legal order” by law, ordinance , statutes or, in particular, by an executive act.
It may not presuppose or require a special enforcement act, whether legally necessary or in accordance with actual administrative practice. If, on the other hand, an independent executive act is necessary to implement a law, this must first be awaited and attacked with permissible legal remedies.
Exceptionally, a law can also be attacked with a constitutional complaint before an implementation act is passed if it leads to dispositions that can no longer be revised at a later date or if the person concerned cannot defend himself against an act of execution because he does not find out about the interference or can only gain knowledge of it after a long time . (Last-instance) criminal and administrative offense regulations can always be attacked directly, since the citizen cannot be expected to wait for a penalty to be imposed.
Subject of the complaint

The subject of the complaint is the (alleged) violation of fundamental rights or rights equivalent to fundamental rights under Article 20, Paragraph 4, Article 33, 38, 101, 103 and 104 of the Basic Law by public authorities. A suitable object of attack for a constitutional complaint is therefore any act or omission of legislation, executive power and jurisprudence that potentially violates fundamental rights. Failure to do so can be the subject of a constitutional complaint if there is an obligation to act that is required under constitutional law.

It must be a matter of legal acts of German state authority, regardless of whether it is federal or state authority. Decisions by foreign authorities or courts are not open to challenge, but German measures for enforcement assistance. All municipality (Germany) measures of direct as well as indirect state authority are recorded, i.e. also the actions or omissions of municipalities and municipal associations , corporations , institutions and foundations under public law .

Statutory acts of all three state powers come into consideration : the legislature , the executive and the judiciary . However, the possibility of constitutional complaints against administrative acts alone has hardly any practical significance because of the guarantee of legal recourse (Art. 19 (4) GG) and the requirement of exhaustion of legal recourse (Section 90 (2) BVerfGG). The vast majority of complaints are directed against court decisions (Constitutional complaints ). Administrative regulations are not open to attack , as they do not contain any external norms.

Legal acts of supranational organizations such as the European Union , so-called secondary Community law , can only be attacked if the complainant substantiates that the European legal development, including the case law of the European Court of Justice , has fallen below the required standard of fundamental rights and that the essential protection of fundamental rights is generally no longer guaranteed is or that a legal act breaks out of the limits of authority or violates the constitutional identity of the Federal Republic. It should not be possible to explain this as a result.

The constitutional complaint can unreservedly attack the (German) consent laws to the European treaties as well as domestic acts of implementation of secondary Community law, provided there is national scope for action and they are not determined by European law.

The constitutional complaint does not serve to protect rights per se, but only to protect the fundamental rights contained in the Basic Law and the rights referred to in Article 93.1 No. 4a of the Basic Law from Article 20.4, Article 33, Article. 38 GG and the so-called fundamental procedural rights of Art. 101 GG, Art. 103 GG and Art. 104 GG (e.g. legal judge , right to be heard ). The violation of other rights, such as regulations of international law or simple laws or of objective constitutional norms, cannot be criticized .

Examination of the application

The BVerfG examines the constitutional complaint based on the conditions contained in the BVerfGG:

  • Admissibility:
    • the legal process must be exhausted and the deadline for filing must be observed ( Section 90 BVerfGG, Section 93 BVerfGG);
    • the complainant must be able to appeal, i.e. have fundamental rights ;
    • the complainant must be able to process . Anyone who is of fundamental legal age is capable of proceedings . The decisive factor here is the ability to understand and not the legal ability to act. Anyone who is able to exercise a fundamental right independently must also be able to defend it procedurally. This is regularly the case for all adults , unless there is an exceptional disease or disability that requires the appointment of a supervisor. If a complainant wants to defend himself against the appointment of a supervisor, he is to be regarded as capable of taking legal action, as otherwise his protection of fundamental rights would be shortened unreasonably.
Minors have the legal capacity when fundamental rights of age are, depending on their ability to understand, but not a flat rate by the capacity . Rather, the ability of a complainant to see the fundamental right in question must be examined in each individual case. In the event of conflicts between the child and parents, a complementary curator or a curator ad litem may be appointed to represent the minor in court in constitutional complaints proceedings.
For legal persons, their legal representative , their statutory board of directors or an agent acts . In the case of a group of persons with no legal capacity, the Federal Constitutional Court can appoint one or more agents in accordance with Section 21 BVerfGG.
  • Written form with justification ( Section 23 (1) BVerfGG).
  • The deadline for filing a complaint is one month from the announced court judgment ( Section 93 (1) BVerfGG). As a rule, it must be raised and justified within one month after the impugned legal act, such as a final judgment, has been issued; for complaints against laws, the period is one year (Section 93 BVerfGG). If the deadline is unclear, it can even be collected as a precautionary measure in order to meet the deadline.
  • Authority to lodge a complaint ( Section 90 (1) BVerfGG).
  • The complaint is well founded if a fundamental right of the complainant has been violated. If the complainant is also authorized to complain, his constitutional complaint will be accepted if it has fundamental constitutional significance or if this is indicated in order to enforce the complainant's own constitutional rights.

If one of these conditions is not met, the complaint will not be accepted. Therefore, every non-acceptance decision is preceded by an intensive legal review.

The constitutional complaint procedure is not adversarial , i. H. the complainant has no opponent. The complaint is directed against a legal act, not against a state body. However, the constitutional bodies affected by the complaint have the option of hearing and joining the proceedings (Section 94 BVerfGG). Usually, the Federal Constitutional Court decides by resolution without an oral hearing.

No instances

There are no instances for constitutional complaints , the BVerfG in Karlsruhe is the only instance that accepts or rejects the constitutional complaint directly. The BVerfG decides, among other things, according to § 13 No. 8a BVerfGG on constitutional complaints or according to § 13 No. 11 BVerfGG on the compatibility of a federal law or a state law with the Basic Law or the compatibility of a state law or other state law with a federal law at the request of a court ( Art 100 para. 1 GG). The authority to reject formal, post-constitutional laws is centralized to the constitutional courts via the procedure of the concrete norm review, because Article 100.1 of the Basic Law establishes the concrete norm review .

Principle of subsidiarity

One of the most important admissibility requirements is exhaustion of the legal process . Since it is the task of the general courts to grant the citizen legal protection, an appeal to the Federal Constitutional Court is only possible if all legal protection options have been exhausted beforehand. A complainant must therefore have unsuccessfully submitted all legal remedies and remedies to which he is entitled before the constitutional complaint was lodged. Only in exceptional cases can a complaint be admitted without exhausting the legal process if it is of general importance or if exhaustion of the legal process is unreasonable.

A distinction must be made here:

  • According to Article 19.4 of the Basic Law, legal recourse is always open against official measures , so that the possibility of a direct constitutional complaint is regularly ruled out. If a person concerned wants to defend himself against a state measure, he must first appeal to the (administrative) courts. He could only file a constitutional complaint after the legal proceedings have been finalized.
  • A complainant can only lodge a constitutional complaint against judicial decisions after the legal process has been exhausted , i.e. after the last instance, the so-called constitutional complaint. The general, “normal” courts (called “specialized courts” by the Federal Constitutional Court) are responsible for the determination and assessment of the facts and the interpretation of simple law, but also for safeguarding fundamental rights. It would run counter to the subsidiary function of the constitutional complaint to allow it instead of or alternatively in addition to a possibly otherwise permissible legal remedy.
In principle, such a constitutional complaint can only be made after legal action has been concluded, i.e. against final, final court decisions. In this respect, it is a case of the breach of legal force .
If the complainant fails to take a permissible legal remedy or if an existing legal remedy is unsuccessful for procedural reasons, e.g. B. because of delay, the legal process is usually not exhausted and a constitutional complaint because of a violation of the principle of subsidiarity is inadmissible.
  • No legal recourse is opened against formal laws, so that they can be attacked immediately with a constitutional complaint if the other requirements are met, in particular the immediate and present self-affectedness. Nonetheless, the Federal Constitutional Court, invoking the principle of subsidiarity, also requires the complainant to regularly apply for an (obviously hopeless) enforcement act, even in the case of laws that currently and directly affect him in his fundamental rights, and then to contest its rejection before the specialized courts. These could suspend the proceedings and submit the law to the Federal Constitutional Court for review in accordance with Art. 100 GG. Otherwise, the complainant is entitled to appeal on the constitutional judgment after the legal process has been concluded. Although no legal recourse is opened against a norm, a person concerned should "obtain effective legal protection in a reasonable manner by first referring to the specialized courts" (). The Federal Constitutional Court only makes an exception to this if the constitutional complaint is of general importance or if the referral to the specialized courts in a specific case would lead to unreasonable results.
This jurisprudence is partly criticized because it is contradictory, to unreasonable and incalculable requirements at the expense of the person concerned and as a result almost to the exclusion of the Legal constitutional complaint lead. A legal constitutional complaint can exceptionally attack laws, ordinances or statutes before they are implemented. These can be laws that authorize secret encroachments on fundamental rights. The principle of subsidiarity of the constitutional complaint is adequately taken into account by the admissibility criteria of immediate and present self-concern; there is no reason and no justification to drive the citizen beyond these requirements into a judicial procedure which is inadmissible from the outset.

Need for legal protection

If the other admissibility requirements are met, the need for legal protection is regularly given. The prerequisites for the right to lodge a complaint and exhaustion of legal recourse concretize and consume the aspect of the need for legal protection.

The need for legal protection can be problematic if it has been dealt with in the meantime, for example by lifting the challenged measure. Here by the administrative jurisdiction to apply continuation declaratory action developed standards accordingly: Interference with particularly important fundamental rights, in particularly serious encroachment, in a continuation of the debilitating effects or risk of repetition, the need for legal protection is considered to be persisting.

Justification of the constitutional complaint

In principle, all and not only the fundamental rights and rights equivalent to fundamental rights mentioned by the complainant that come into consideration due to the violation of the law are checked. However, not every violation of the law is significant. The examination standard is exclusively the "violation of specific constitutional law". A violation of simple law is therefore not sufficient; otherwise the Federal Constitutional Court would become a super-revision instance . That would contradict the division of tasks that the Basic Law undertakes between constitutional and specialized jurisdiction.

Acceptance of the constitutional complaint

The constitutional complaint must be accepted by the Federal Constitutional Court. Theoretically, this acceptance decision precedes the actual admissibility and justification test. The acceptance procedure serves to select constitutional complaints and is intended to be a "valve against flooding of the Federal Constitutional Court". It finds its constitutional authorization in Article 94 (2) sentence 2 of the Basic Law.

Due to the large number of constitutional complaints, which currently make up 96 percent of all proceedings of the Federal Constitutional Court, a number of restrictions on the constitutional complaint have been considered. A preliminary review procedure for constitutional complaints was introduced as early as 1956 in order to relieve the Federal Constitutional Court from the flood of proceedings. The procedure was amended several times, in 1985 the previous preliminary examination committees were replaced by chambers with expanded powers. Nonetheless, in 1992 the then President of the Federal Constitutional Court, Roman Herzog , was prompted to make the drastic remark: “If we are not helped, we will drink”. With the amendment to the BVerfGG 1993, the acceptance procedure for constitutional complaints was modified. In contrast to earlier regulations, which described the conditions under which constitutional complaints could be rejected or granted, the reasons for accepting a constitutional complaint are now defined in the new sections 93a to 93d BVerfGG as binding standards for the decision of the Chamber and Senate .

The constitutional complaint is to be accepted for decision according to § 93a Abs. 2 BVerfGG if

  • it is of fundamental constitutional importance (assumption of principle) or
  • it is appropriate to enforce fundamental rights and rights equivalent to fundamental rights (enforcement assumption).

The first reason for acceptance is based on the objective function of the constitutional complaint: it is of fundamental importance when important questions of constitutional law are raised. The second reason for acceptance primarily serves the subjective protection of fundamental rights: the acceptance is indicated if the violation of fundamental rights is particularly serious, especially if the complainant would suffer a particularly serious disadvantage due to the refusal to decide on the matter.

If neither of the two reasons for acceptance is present, acceptance of the constitutional complaint is to be rejected, even if it should be admissible and well-founded. This will mainly be the case in minor cases. "Citizens may have to live with a little unconstitutionality."

Legal consequence

If the Federal Constitutional Court determines that the attacked sovereign act violates fundamental rights or rights equivalent to fundamental rights, it fundamentally revokes it ( nullity ). On the other hand, the court proceeds differently in the event of violations of the general principle of equality . A law that violates Article 3 I GG is usually not repealed by the court, but is declared incompatible with the Basic Law. According to the principle of the separation of powers , it remains for the legislature to enact a constitutional rule instead of the unconstitutional one. For this purpose, the court can set the legislature a deadline until the expiry of which the regulation incompatible with the constitution will continue to apply. As an exception, the court can order a transitional arrangement through judgment.

costs

The procedure before the Federal Constitutional Court is free of charge.

If the court is abused, however, an abuse fee of up to 2,600  euros can be imposed. In the past, the Federal Constitutional Court rarely made use of this option. Since the introduction of the ability to impose abuse fees in 1962, such fees have been imposed 2,719 times (First Senate 930, Second Senate 1,789). The total of all abuse fees is 479,761 euros. As of December 31, 2005, the share of decisions on abuse fees in relation to the total number of constitutional complaints was around 0.26 percent. In recent times, however, the relevant decisions have increased. The court is primarily opposed to the fact that constitutional complaints that are recognizable from the outset are insubstantial and can only grant the protection of fundamental rights to other affected persons with a delay.

Local constitutional complaint

According to Article 93, Paragraph 1, No. 4b of the Basic Law, the Federal Constitutional Court also decides on constitutional complaints by municipalities and associations of municipalities due to a violation of their right to self-administration under Article 28 of the Basic Law through a law or other norms. It is the only constitutional procedure in which municipalities can be involved and assert a violation of their rights: they are not entitled to apply in the abstract norm control procedure, they are not party to the federal-state dispute and in the dispute between organs, and in the individual constitutional complaint procedure they are not entitled to appeal.

The term constitutional complaint is misleading as it is usually associated with the protection of fundamental rights. But that is exactly what this is not about: the standard of assessment is only the guarantee of self-government under Article 28 paragraph 2 of the Basic Law, which has no fundamental rights quality. It is about preserving the institutional guarantee of local self-government, not about fundamental rights-based legal defense. The goal of the decision is an abstract control of norms. Nonetheless, the procedural regulations on individual constitutional complaints, in particular the requirement of the ability to lodge a complaint, largely apply (Section 90 (2) and (3), Sections 91–95 BVerfGG).

The application must be made in writing and justified. Only municipalities and municipal associations are authorized to apply. The application period is one year (Section 93 (3) BVerfGG).

Permissible subject of the complaint are federal and state laws, also statutory ordinances, as well as other norms that have an external effect on municipalities. Judicial decisions or measures by the executive power, such as ministerial decrees, do not come into consideration as the subject of the municipal constitutional complaint. The complaining municipality must explain the possibility of a violation of the right to self-administration and demonstrate a situation on the basis of which the scope of protection of Article 28 paragraph 2 GG could be affected. It must be itself, presently and directly concerned.

Insofar as the state constitutional law grants municipalities the possibility of a local constitutional complaint before the state constitutional court, § 91 sentence 2 BVerfGG excludes access to the Federal Constitutional Court for state law norms. This principle of subsidiarity does not apply to federal standards; they can only ever be challenged before the Federal Constitutional Court.

The municipal constitutional complaint also requires acceptance for a decision. The general regulations of §§ 93a ff. BVerfGG apply here.

Mass complaints

The first constitutional complaint that attracted a lot of public attention and was filed in the direct context of a civil rights movement was the one against the Census Act of March 25, 1982. It ended with the census ruling on December 15, 1983. Since then, the constitutional complaint has established itself as an instrument of civil society.

Data retention

A total of twelve boxes with letters of appeal against data retention are submitted to the Federal Constitutional Court.

In 2007, 34,939 complainants filed a constitutional complaint against data retention . The complaint coordinated by the working group on data retention was the largest constitutional complaint of the Federal Republic of Germany to date. Because of the complainant's declaration of completion - after a decision in parallel proceedings - this complaint was not decided.

ELENA

A mass complaint organized by the data protection association FoeBuD from 22,005 complainants was raised in 2010 against the central employee database ELENA .

With Art. 3 of the law of November 23, 2011 the ELENA procedural law was repealed in essential points.

2011 census

Another organized by FoeBuD mass appeal with over 10,000 signatures against the subscriber by the then grand coalition decided Census Act 2011 was not accepted for decision.

ESM and Fiscal Compact

The Bundestag member Peter Gauweiler , a euro- critical financial scientist led by Professor Emeritus Joachim Starbatty and various other individuals lodged a constitutional complaint against the laws passed by the Bundestag and Bundesrat on June 29, 2012 as measures to deal with the sovereign debt crisis in the euro currency area . The complaints were directed against both the ESM and the European Fiscal Compact . With the aim of provisionally prohibiting the Federal President from drafting the relevant laws and ratifying the international treaties approved with them ( Art. 82, Paragraph 1, Clause 1 of the Basic Law), the complaints were accompanied by an application for an interim order from the DIE LINKE parliamentary group connected in the German Bundestag.

Employees of Mehr Demokratie e. V. loaded the powers of attorney for the constitutional complaint against the ESM and the Fiscal Compact, June 29, 2012

The constitutional complaint, supported by the association Mehr Demokratie , was made by the Leipzig constitutional lawyer Christoph Degenhart and the former Federal Minister of Justice Herta Däubler-Gmelin . This complaint was joined by 11,717 other complainants, which led to one of the largest mass proceedings in German judicial history. Among the signatories of the complaint were members of the Bundestag , the Taxpayers' Association , the Free Voters , the Ecological Democratic Party and the Pirate Party Germany .

Oral proceedings were held on July 10, 2012.

Experts from the Center for European Politics assumed that the application for an interim order would be granted, since the main proceedings would otherwise be superfluous and the Federal Republic of Germany would be bound by international law. The President Andreas Vosskuhle let it be known that the court would carry out a “very careful summary examination”. The court fears that granting the urgent application would not be understood abroad and thus send the wrong signal. Vosskuhle concluded: "We all see the headlines: Euro rescue by Germany stopped."

In its judgment of September 12, 2012, the Federal Constitutional Court rejected the application for a temporary injunction with the stipulation that the ESM may only be ratified if, in particular, sufficient participation by the German Bundestag and the Bundesrat is guaranteed.

On September 13, 2013, Federal President Joachim Gauck then signed the document ratifying the treaty on the euro rescue package (ESM).

After it had been ensured that the German payment obligations in no case exceeded 190 billion euros and that the Bundesrat and Bundestag were fully informed about the actions of the ESM, the Federal Constitutional Court believed that the German Parliament had budget sovereignty. It has therefore also approved the European Stability Mechanism and the Fiscal Compact as constitutional in the main proceedings.

CETA

Against the approval of the CETA Treaty by the Federal Government in the Council of the European Union and the German Bundestag, Marianne Grimmenstein , represented by Andreas Fisahn and Martin Hochhuth , applied for an interim order at the Federal Constitutional Court and advertised it on change.org . 68,015 other complainants had joined this application.

The motions represented by Bernhard Kempen against the approval of the German representative in the Council of the European Union for the signing, conclusion and provisional application of the CETA agreement support Campact , foodwatch and Mehr Demokratie in total over 125,000 citizens.

The applications were rejected due to the otherwise threatened trade policy disadvantages in a judgment of October 13, 2016, but the Second Senate warned that a unilateral right to terminate, the provisional application of the agreement only in areas that clearly fall within the competence of the EU and sufficient democratic backing of the decisions of the CETA committee.

In a decision of December 7, 2016, the Federal Constitutional Court rejected further urgent motions because the Federal Government had complied with the requirements for the signing of the agreement established by the court in October 2016.

Legal consequences

Although the BVerfG controls decisions by other courts, it is not part of the appeal . It does not check whether the specialized courts have correctly applied the specialized law; it only checks whether the court decision made is in accordance with the Basic Law.

Legal Constitutional Complaint

In the event of a successful legal constitutional complaint , the BVerfG declares the law null and void in accordance with Section 95 (3) sentence 1 BVerfGG . As an exception, there is no annulment of a law if overriding reasons dictate that it be limited to the declaration of incompatibility. This is particularly the case if it is to be feared that the annulment of the challenged law would deepen the constitutional violation. Instead, the BVerfG simply declares the law to be incompatible with the higher-ranking law serving as a benchmark ( Section 31 (2) sentence 2 BVerfGG) and declares the norm to continue to be applicable for a transitional period until a new constitutional provision is made.

Constitutional complaint

In the event of a successful constitutional complaint , the BVerfG overturns this judgment - and possibly also the decisions of the lower courts - and refers the matter back to the specialized courts for further review ( Section 95 (2) BVerfGG). It is the highest German court insofar as it can revoke actions at all administrative levels or, in the event of omissions, determine that the court's decisions cannot be challenged by state organs or by others. According to Paragraph 31 (1) of the BVerfGG, the decisions of the BVerfG are binding on the constitutional organs of the Federation and the Länder as well as all courts and authorities.

Significance of the constitutional complaint

According to the doctrine that prevails today , fundamental rights have a double function. On the one hand, in their traditional liberal meaning, they are subjective freedom rights of the citizen against the state; on the other hand, the fundamental rights are at the same time objective value decisions and fundamental norms that apply to all areas of law.

Accordingly, the constitutional complaint also has a double function. The constitutional complaint primarily serves to protect the individual-subjective fundamental rights of the complainant affected by a state measure and ensures the immediate validity of his or her fundamental rights. It pursues the enforcement of highly personal rights , it is the citizen's specific remedy against the state. In addition, due to its general effect across all cases, it is also a specific means of legal protection of objective constitutional law, serves to safeguard, interpret and train it and has a “general educational effect”. This objective-legal function represents an additional dimension of the constitutional complaint: By defending their own fundamental rights, the person concerned also initiates a procedure that also serves to objectively protect the constitution. This objective-legal dimension is a consequence of the subjective-legal dimension, but must not lead to a relativization of the subjective legal protection function of the constitutional complaint. The weighting of the two dimensions in the individual literature is controversial and is not handled uniformly by the Federal Constitutional Court either.

The Federal Constitutional Court derives its power to decide on a constitutional complaint withdrawn by the complainant after the oral hearing, if special conditions are met, from the objective-legal function. The comprehensive review of the constitution as a whole, which the Federal Constitutional Court regularly carries out following the famous Elfes decision , is an expression of the objective and legal significance of the constitutional complaint. The same applies to the possibility of not accepting a permissible and well-founded constitutional complaint for a decision in minor cases.

statistics

The constitutional complaints make up the majority of the work of the Federal Constitutional Court. About 96 percent of all proceedings are constitutional complaints.

From 1951 to the end of 1988 71,447 constitutional complaints were filed, since then the number has more than doubled and by the end of 2009 had risen to a total of 175,900 complaints. Of these, 173,100 complaints were resolved, 4205 were successful (2.4 percent). In 2009, 5911 complaints were decided, 111 constitutional complaints were successful (1.9 percent). Almost 70 percent of the complaints are decided within one year, another 20 percent within two years (all figures including the municipal constitutional complaints).

Currently, around 99.5 percent of constitutional complaints are decided by the chambers of the Federal Constitutional Court, which consist of three constitutional judges (refusal of acceptance or acceptance), only 0.5 percent go to the Senate.

In Germany there is a constitutional complaint at the federal level, i. H. before the BVerfG, and in some countries before the state constitutional court ( State Court , Constitutional Court ). Complaints to the Federal Constitutional Court have gained far greater significance in practice. The constitutional complaint is the most common procedure before the Federal Constitutional Court. It takes up about 96 percent of all pending proceedings there.

The statistics of the BVerfG also record the constitutional complaints.

Entries
constitutional complaints		 2015 2016 2017 2018 2019
total 5,891 5,754 5,982 5,959 5,446
Execution due to non-acceptance 5,770 5,779 5,268 5,740 4,793
Execution by surrender 111 117 100 98 75
Execution by rejection 3 10 8th 15th 3
Handling by taking back 38 42 28 44 26th

Constitutional complaints are mostly dealt with by non-acceptance (88% in 2019), only 1.4% of all complaints are granted.

See also

literature

Web links

Individual evidence

  1. ↑ BVerfGE 33, 247 , 259
  2. ↑ Birgit Enzmann, The democratic constitutional state between legitimation conflict and openness to interpretation , Wiesbaden 2009, p. 34 ff.
  3. ↑ BVerfGE 1, 4 , 5
  4. ↑ Para. 1 of the constitution stipulated: “Every citizen and every legal person who has their seat in Bavaria has the right to complain to the State Court of Justice if they believe that their law has been harmed by the activity of an authority in violation of this constitution be. The complaint is only admissible if remedial action has previously been unsuccessfully sought from the ministry or if the legal process has been exhausted. "
  5. ↑ While the draft law of the SPD parliamentary group (§§ 56 ff.) Still provided for a “procedure for the defense of fundamental rights”, which was primarily intended as a judicial submission procedure, the government draft in § 84 contained the constitutional complaint in the current sense. It should be "the last refuge of citizens who feel that their basic rights have been violated"; "A supreme court, which is appointed to guardian of the constitution, is supposed to protect his inviolable fundamental rights from encroachments by state authority" (reasoning on § 84 of the government draft). Under basic rights one understood only Articles 1 to 17 of the Basic Law. In the course of the deliberations in the Bundestag and the Legal Committee, the rights from Articles 33, 38, 101, 103 and 104 of the Basic Law were placed on an equal footing with the fundamental rights (rights equal to fundamental rights). The concept of the constitutional complaint was not undisputed in the Bundestag, especially as far as it should also be possible against court rulings.
  6. ↑ The wording was agreed with the plenary session of the Federal Constitutional Court and has remained unchanged to this day.
  7. ^ Andreas Voßkuhle , in: Hermann Mangoldt / Friedrich Klein / Christian Starck, Commentary on the Basic Law , 5th edition, 2005, Art. 93 Rn. 164.
  8. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf (ed.): Commentary on the Basic Law .., 12th ed, 2011, Article 93 Rn.198 f.
  9. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 147, 197 ff .; BVerfGE 18, 315 , [325]; BVerfGE 49, 252 , [258]; BVerfGE 93, 381 , [385]; Andreas Voßkuhle, in: Hermann Mangoldt / Friedrich Klein / Christian Starck, Commentary on the Basic Law , 5th edition, 2005, Art. 93 Rn. 168.
  10. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 189 ff. And Art. 94 para. 68 ff.
  11. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 149.
  12. ↑ BVerfGE 18, 85
  13. ↑ Michael Kleine-Cosack, Constitutional Complaints and Human Rights Complaints , 2007, p. 29 ff.
  14. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 163.
  15. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 164.
  16. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 165.
  17. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 157 ff.
  18. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 56; Art. 94 para. 44 ff.
  19. ^ Andreas Voßkuhle, in: Hermann Mangoldt / Friedrich Klein / Christian Starck, Commentary on the Basic Law , 5th edition, 2005, Art. 93 Rn. 178; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 187; Oliver Klein / Christoph Sennekamp, Current admissibility problems of the constitutional complaint , in: NJW 2007, 945 [948 ff.].
  20. ↑ BVerfGE 102, 197 , [206 f.].
  21. ↑ BVerfGE 13, 230 , [232 f.]; Gerd Sturm, in: Michael Sachs (Ed.): Commentary on the Basic Law , 5th edition, 2009, Art. 93 Rn. 92; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 188.
  22. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 188.
  23. ↑ BVerfGE 59, 360 , [375]; BVerfGE 60, 360 , [370 f.]; BVerfGE 102, 197 , [207]; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 189
  24. ↑ Legal protection options against federal laws before they come into force Elaboration by the Scientific Services of the German Bundestag , June 22, 2015, p. 4.
  25. ↑ BVerfG, decision of October 7, 2003 - 1 BvR 1712/01 = BVerfGE 108, 370, Rn. 65.
  26. ↑ BVerfGE 60, 360 , [372]; BVerfGE 65, 1 , [37]; BVerfGE 75, 246 , [263]; BVerfGE 102, 197 , [207].
  27. ↑ BVerfGE 119, 181 , [212 f.].
  28. ↑ BVerfGE 56, 99 , [106]; BVerfGE 83, 341 , [352].
  29. ↑ BVerfGE 99, 129 , [138].
  30. ↑ BVerfGE 76, 363 , [383]; BVerfGE 86, 288 , [309].
  31. ↑ BVerfGE 81, 138 , [141 f.]; BVerfGE 107, 299 , [311]; BVerfGE 119, 309 , [317].
  32. ↑ BVerfGE 30, 1 , [17]; BVerfGE 43, 291 , [386].
  33. ↑ BVerfGE 53, 366 , [389].
  34. ↑ BVerfGE 61, 260 , [274].
  35. ↑ BVerfGE 58, 81 , [104 ff.]; BVerfGE 65, 1 , [36].
  36. ↑ BVerfGE 68, 319 Rn. 18th
  37. ↑ BVerfGE 1, 97 , [102]; BVerfGE 110, 370 , [381 f.].
  38. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 190.
  39. ↑ BVerfGE 43, 291 , [386]; BVerfGE 102, 197 , [207].
  40. ↑ BVerfGE 30, 1 , [16] - Article 10 Law .
  41. ↑ BVerfGE 100, 313 , [354]; BVerfGE 109, 279 , [306 f.]; BVerfGE 113, 348 , [362].
  42. ↑ BVerfGE 77, 84 , [100]; BVerGE 81, 70 [82]
  43. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 173 ff.
  44. ↑ To rare exceptions in which administrative regulations can also be attacked; see Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , Art. 93 Rn. 181.
  45. ↑ BVerfGE 89, 155 , [188, 210]; BVerfGE 102, 147 , [163 f.], BVerfGE 123, 267 , [353 f.]; Details from Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 101, 180, 185.
  46. ↑ BVerfGE 89, 155 , [171]; BverfGE 123, 267 , [339].
  47. ↑ Klaus Schlaich / Stefan Korioth, Das Bundesverfassungsgericht , 8th edition, 2010, Rn. 214; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 179.
  48. ↑ Bodo Pieroth, in: Hans D. Jarass / Bodo Pieroth (ed.): Commentary on the Basic Law , 10th edition, 2009, Art. 93 Rn. 49; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , Art. 93 Rn. 169 f.
  49. ↑ BVerfGE 72, 122 , (132 ff.); BVerfGE 75, 201 , (215); see. BVerfGE 99, 145 , [162 f.].
  50. ↑ Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, Art. 93 Rn. 194 ff.
  51. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 157, 195 and Art. 94 para. 74.
  52. ↑ Federal Constitutional Court, Procedure and Decision , 2020
  53. ↑ BVerfGE 79, 365 , (367 f.); Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 148, 157.
  54. ↑ State constitutional courts only act in the judicial review process.
  55. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 191, Art. 94 para. 68 ff.
  56. ↑ BVerfGE 74, 102 , (113); BVerfGE 107, 395 , [414]; BVerfGE 112, 50 , [60]; BVerfGE 115, 81 , [92]; Klaus Schlaich / Stefan Korioth, Das Bundesverfassungsgericht , 8th edition, 2010, Rn. 244.
  57. ↑ BVerfGK 14, 266 , [274]; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 191.
  58. ↑ BVerfGE 69, 122 , [125 f.]; BVerfGE 71, 305 , [334].
  59. ↑ BVerfGE 74, 69 (74)
  60. ↑ BVerfGE 55, 154 , [157]; BVerfGE 93, 319 , [338].
  61. ^ BVerfG, special case legal sentence constitution complaint on bundesverfassungsgericht.de.
  62. ↑ Thomas Schwabenbauer: Secret encroachments on fundamental rights, restricted preview in the Google book search.
  63. ↑ So Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, comment on GG .., 12th ed, 2011, Article 93 para. 192 f .; Art. 94 para. 78 ff.
  64. ↑ a b Schlaich / Korioth, Das Bundesverfassungsgericht, 8th edition, 2010, Rn. 256.
  65. ↑ Bodo Pieroth, in: Hans D. Jarass / Bodo Pieroth (ed.): Commentary on the Basic Law , 10th edition, 2009, Art. 93 Rn. 66.
  66. ↑ BVerfGE 69, 315 , [341]; BVerfGE 74, 102 , [115].
  67. ↑ BVerfGE 96, 288 , [300]; BVerfGE 98, 169 , [197 f.]; BVerfGE 100, 104 , [125].
  68. ↑ BVerfGE 85, 36 , [53]; BVerfGE 91, 125 (133) ; BVerfGE 99, 129 (138)
  69. ↑ BVerfGE 52, 42 , [51]; BVerfGE 69, 257 , [266]; BVerfGE 103, 44 , [58 f.].
  70. ↑ BVerfGE 18, 85 , Rn. 21st
  71. ↑ Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 201, Art. 94 para. 81 ff.
  72. ↑ quoted from Klaus Schlaich / Stefan Korioth, Das Bundesverfassungsgericht , 8th edition, 2010, Rn. 259.
  73. ↑ ( BGBl. I p. 1473 )
  74. ↑ Karin Graßhoff, in: Theodor Maunz / Bruno Schmidt-Bleibtreu / Franz Klein / Herbert Bethge (eds.): Commentary on the BVerfGG , § 93a BVerfGG Rn. 62 ff., 81 ff .; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 201, Art. 94 para. 85 ff.
  75. ↑ Wolfgang Löwer in: Josef Isensee / Paul Kirchhof (Ed.): Handbuch des Staatsrechts , Vol. III, 3rd edition, 2005, § 70 Rn. 171 with reference to the objective-legal function of the constitutional complaint.
  76. ↑ § 95 BVerfGG.
  77. ↑ § 34 BVerfGG.
  78. ↑ BVerfG: Federal Constitutional Court imposes abuse fee in two cases. March 31, 2010, accessed on August 30, 2010 (press release, 1 BvR 829/09, 2 BvR 2300/09).
  79. ↑ BVerfG: Federal Constitutional Court imposes abuse fee in the event of an obviously inadmissible constitutional complaint. June 25, 2010, accessed on August 30, 2010 (press release, 2 BvR 1783/09).
  80. ↑ BVerfG: Federal Constitutional Court imposes abuse fee: "Repetition" of previously unsuccessful constitutional complaints. June 30, 2010, accessed on August 30, 2010 (press release, 1 BvR 690/10, 1 BvR 901/10).
  81. ↑ BVerfG: Renewed imposition of abuse fees against complainants and their agents. September 2, 2010, accessed on August 30, 2010 (press release, 2 BvR 1465/10, 2 BvR 1354/10).
  82. ↑ Examples of procedures with abuse fees : 2 BvR 693/04 , 2 BvR 1466/00 .
  83. ↑ BVerfG: Decision - 1 BvR 1584/10. August 24, 2010, accessed on September 16, 2010 (abuse fee against the complainant's legal representative in the amount of 500 euros): “The constitutional complaint does not even attempt to provide a reason that meets the requirements of a permissible constitutional complaint. The Federal Constitutional Court does not have to accept being hindered from fulfilling its tasks by constitutional complaints that are recognizably insubstantial for everyone, especially lawyers as organs of the administration of justice, whereby other citizens can only be granted the fundamental rights protection they are entitled to with a delay (see BVerfGK 6, 219; 10, 94 <97> with further references; established case-law). A lawyer who accepts a mandate to conduct proceedings before the Federal Constitutional Court must deal with the admissibility requirements of a constitutional complaint, examine the case law of the Federal Constitutional Court on the questions raised, carefully weigh the chances of success of an intended constitutional complaint and act accordingly the results of its examination (see BVerfG, decision of the 3rd Chamber of the First Senate of June 9, 2004 - 1 BvR 915/04 -, NJW 2004, p. 2959 mwN; decision of the 2nd Chamber of the Second Senate of 19 June 2004 February 2009 - 2 BvR 191/09 -, juris, Rn. 4 with further references). This also justifies imposing the abuse fee on the agent of the complainant. "
  84. ↑ Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, Art. 93 Rn. 204.
  85. ↑ Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, Art. 93 Rn. 205.
  86. ↑ BVerfGE 86, 90 (107); Schmidt-Bleibtreu, in: Maunz / Schmidt-Bleibtreu / Klein / Bethge / Schmidt-Bleibtreu, commentary on the BVerfGG, § 91 Rn. 3.
  87. ^ Schlaich / Korioth, Das Bundesverfassungsgericht, 8th ed., 2010, Rn. 192.
  88. ↑ BVerfGE 26, 228 (236); 56, 298 (309); 71, 25 (34); 76, 107 (114); 107, 1 (15).
  89. ↑ Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, Art. 93 Rn. 207.
  90. ↑ Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, Art. 93 Rn. 207 f.
  91. ↑ Law on a population, occupation, housing and work place census (Population Census Act 1983), Federal Law Gazette I p. 369
  92. ↑ BVerfG, judgment of December 15, 1983 - 1 BvR 209/83 u. a.
  93. ↑ Christian Schreier: The mass constitutional complaint at the Federal Constitutional Court: Attempts to revise legal norms by citizens' initiatives Opusculum No. 51, Maecenata Institute for Philanthropy and Civil Society at the Humboldt University of Berlin 2011, pp. 23 ff., 34 ff.
  94. ^ Decision of the Federal Constitutional Court of March 22, 2010 - 1 BvR 508/08 .
  95. ↑ https://petition.foebud.org/ELENA ( Memento from September 5, 2013 in the Internet Archive ) foebud.org - Constitutional complaint against ELENA only possible symbolically! Accessed on April 11, 2010.
  96. ↑ Torsten Hampel: Elena: The lawyer who bites back. In: zeit.de . March 30, 2010, accessed February 12, 2015 .
  97. ^ Constitutional complaint ELENA - 1 BvR 902/10. Copy of the constitutional complaint submitted to the Federal Constitutional Court on March 31, 2010 on behalf of 22,005 complainants (PDF).
  98. ↑ Act to amend the Accommodation Statistics Act and the Trade Statistics Act as well as to repeal regulations on the electronic remuneration statement procedure, Federal Law Gazette I p. 2298
  99. ↑ Rudolf PB Riechwald: ELENA constitutional complaint successful as a result ( undated )
  100. ↑ Federal Constitutional Court does not accept complaint against census. In: heise.de. October 1, 2010, accessed February 12, 2015 .
  101. ↑ BVerfG, decision of September 21, 2010 - 1 BvR 1865/10 .
  102. ↑ BT-Drs. 17 / 9045-17 / 9048 Vote on the fiscal pact and euro rescue package, documents. Website of the German Bundestag, accessed on April 16, 2017.
  103. ↑ More democracy: Constitutional complaint about the ESM and the fiscal agreement filed in Karlsruhe. In: mehr-demokratie.de. June 29, 2012, accessed February 12, 2015 .
  104. ^ Constitutional complaint: Alliance “Europe needs more democracy” is making history. In: mehr-demokratie.de. August 2, 2012, accessed February 12, 2015 .
  105. ↑ Charlie Rutz: Europe Needs More Democracy - File a Constitutional Complaint !: Home. In: Verassungsbeschwerde.eu. March 18, 2014, accessed February 12, 2015 .
  106. ↑ Federal Constitutional Court - Press - Oral hearing in the matter of "ESM / Fiscal Compact - Applications for the issuance of an interim order". In: bundesverfassungsgericht.de. July 10, 2012, accessed February 12, 2015 .
  107. ^ Jan Hildebrand, Miriam Hollstein and Dorothea Siems: Permanent rescue package threatens delay. In: welt.de . July 2, 2012, accessed February 12, 2015 .
  108. ↑ DAPD, Georg Watzlawek: Constitutional Court is playing for time. In: handelsblatt .com. July 10, 2012, accessed February 12, 2015 .
  109. ↑ BVerfG, judgment of September 12, 2012 - 2 BvR 1390/12 u. a.
  110. ↑ Gauck signs ESM contract: Germany is now finally caught in the ESM trap Focus , September 27, 2012.
  111. ↑ Ratification by Joachim Gauck: The ESM euro rescue package can start Der Spiegel , September 27, 2012.
  112. ↑ BVerfG, judgment of March 18, 2014 - 2 BvR 1390/12 u. a.
  113. ↑ Hannes Rathke: Current term Europe : The ESM judgment of the Federal Constitutional Court of March 18, 2014 German Bundestag / European Department, April 7, 2014.
  114. ^ Joachim Wieland : ESM and Fiscal Compact according to the constitution. The rescue package is held by LTO , March 18, 2014.
  115. ↑ Why TTIP supporters fear this flute teacher DIE WELT , March 7, 2016.
  116. ↑ civil suit against-ceta .
  117. ↑ BVerfG, judgment of October 13, 2016 - 2 BvR 1368/16 u. a.
  118. ↑ JuS short interview with Matthias Ruffert October 13, 2016.
  119. ^ Felix Ekardt : BVerfG on transatlantic free trade: CETA may start provisionally LTO , October 13, 2016.
  120. ↑ BVerfG, decision of December 7, 2016 - 2 BvR 1444/16 u. a.
  121. ↑ BVerfG rejects further urgent motions against CETA: Federal government adheres to LTO requirements , January 12, 2017.
  122. ^ WDR : State clear - Federal Constitutional Court. 2011, accessed October 29, 2018 .
  123. ^ Herbert Bethge, in: Theodor Maunz / Bruno Schmidt-Bleibtreu / Franz Klein / Herbert Bethge (eds.): Commentary on the BVerfGG , § 90 BVerfGG Rn. 8th; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 151 f.
  124. ↑ BVerfGE 33, 247 , [259]; BVerfGE 79, 365 , [367]; BVerfGE 81, 278 , [290]; BVerfGE 85, 109 , [113]; BVerfGE 98, 218 , [243]; Wolfgang Löwer in: Josef Isensee / Paul Kirchhof (eds.): Handbuch des Staatsrechts , Vol. III, 3rd edition, 2005, § 70 Rn. 171; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 153.
  125. ↑ Theodor Maunz / Bruno Schmidt-Bleibtreu / Franz Klein / Herbert Bethge (eds.): Commentary on the BVerfGG , § 90 BVerfGG Rn. 8 ff .; Axel Hopfauf, in: Bruno Schmidt-Bleibtreu / Hans Hofmann / Axel Hopfauf, Commentary on the Basic Law , 12th edition, 2011, Art. 93 Rn. 151 ff.
  126. ↑ BVerfGE 98, 218 , [242 f.] - Spelling reform .
  127. ↑ cf. BVerfGE 71, 64 , [66].
  128. ↑ Source: Annual statistics of the BVerfG 2009; s. Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, Art. 93 Rn. 155, Percentage of approved constitutional complaint procedures since 1987. (PDF) Retrieved on December 22, 2017 .
  129. ↑ Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, Art. 93 Rn. 155, Art. 94 para. 89 f.
  130. ↑ Federal Constitutional Court, annual statistics 2019 , 2020, p. 14.