The Federal Constitutional Court is the only organ that is competent to decide whether laws are compatible with the Constitution. If an ordinary court considers a statute to be unconstitutional and its decision in a specific case depends on this statute, it suspends the proceedings and refers the matter to the Federal Constitutional Court for decision. This type of proceedings is therefore also known as a referral from a court. It is governed by Art.100(1) of the Basic Law and §§ 80 ff. of the Federal Constitutional Court Act. The Federal Constitutional Court receives up to 100 such cases each year. They receive a ‘BvL’ file reference.
Example
An administrative court considers the tuition fees provided for in a Land law to be unconstitutional and refers the actions brought against the tuition fee notices to the Federal Constitutional Court. The Federal Constitutional Court only decides whether the referred provisions are constitutional. Following this decision, the administrative court concludes the proceedings, taking into consideration the decision rendered by the Federal Constitutional Court.
Subject matter
In any legal dispute, the courts must observe and interpret the Constitution when applying the law. Yet Art.100(1) of the Basic Law confers upon the Federal Constitutional Court the exclusive power to declare an act of Parliament void. An ordinary court must refer federal or Land law to the Federal Constitutional Court for review if its decision depends on the validity of such law and the ordinary court considers it to be unconstitutional. In addition, the Federal Constitutional Court is competent to decide in cases where a court considers a Land law to be incompatible with a federal law or other law. It falls to the ordinary courts to review secondary legislation (e.g. ordinances); such legislation does not have to be referred to the Federal Constitutional Court.
Legal ability and duty to make a referral
If an ordinary court considers a law to be unconstitutional and its decision in a specific case depends on this law, it must refer the matter to the Federal Constitutional Court. The parties to the initial proceedings cannot make such a referral, nor can they compel the court to do so.
Any German court can refer a matter to the Federal Constitutional Court. The referring court must be satisfied that the provision at issue is unconstitutional and its decision must depend on that provision. It must give reasons. The court refers the matter directly to the Federal Constitutional Court without first involving higher-instance courts. The initial proceedings are suspended until the Federal Constitutional Court has rendered its decision.
Decision
If the referral is well-founded, the legal provision in question is declared void or incompatible with the Basic Law. If the referral is admissible but unfounded, the Court declares that the provision is compatible with the Basic Law.