German Supreme Judicial Authorities

GERMAN SUPREME JUDICIAL
AUTHORITIES

Legal Memorandum

November 2012

GERMAN SUPREME JUDICIAL AUTHORITIES

Executive Summary

The purpose of this memorandum is to examine Germanys supreme judicial
authorities, public access to the supreme judicial authorities, and the role of the
institutions in protecting individual substantive rights. Six federal courts with
distinct jurisdictions make up Germanys supreme judicial authorities: the Federal
Constitutional Court; the Federal Court of Justice; the Federal Administrative
Court; the Federal Financial Court; the Federal Labour Court; and the Federal
Social Court.

The Federal Constitutional Court (FCC) is primarily tasked with hearing and
resolving disputes over the proper interpretation of Germanys Constitution, the
German Basic Law. This court also considers disputes over compliance of
government institutions with the Constitutions provisions and the protection of
constitutional rights of individuals. The decisions of the FCC are binding on all
other German courts.

The Federal Court of Justice (FCJ) represents Germanys final appellate
court of general jurisdiction, and is tasked with hearing disputes on points of law
arising in civil and criminal cases from the local, regional, and higher regional
courts of general jurisdiction. The remaining specialized federal courts are
appellate courts of final instance, which hold exclusive jurisdiction over specified
areas of law, such as administrative law or labor law. Decisions of these
specialized courts cannot be appealed to any of the other specialized courts, but
may be appealed to the FCJ and, if constitutional questions arise, the FCC.

The six supreme federal courts typically consider appeals solely on matters
of law that remain unresolved by the lower courts. The lower courts make initial
determinations when cases are filed, with due consideration of the facts and laws
concerning each case. In general, the supreme federal courts hear appeals when:
(1) a point of law is of fundamental legal importance; (2) appellate proceedings are
necessary to ensure the uniform application of the law; or (3) there is a procedural
irregularity. Individuals therefore have access to the federal courts when their
cases present a matter of law that falls within these categories of significance. By
staggering its federal judicial system according to areas of law, Germany ensures
that all parties to legal disputes have fair and efficient access to judicial institutions
of general or specialized knowledge.
German Supreme Judicial Authorities, November 2012

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

The Federal Constitutional Court 2
Jurisdiction 3
Protection of Individual Rights 4
Access to the Court 4

The Federal Court of Justice 7
Jurisdiction 7
Protection of Individual Rights 8
Access to the Court 8

Specialized Federal Courts 9
The Federal Administrative Court 10
The Federal Financial Court 11
The Federal Labour Court 11
The Federal Social Court 12

Conclusion 13

1

GERMAN SUPREME JUDICIAL AUTHORITIES

Statement of Purpose

The purpose of this memorandum is to examine the supreme judicial
authorities of Germany, in particularly public access to these authorities, and the
role of the institutions in protecting individual substantive rights.

Introduction

As a federal republic, Germanys judicial system is divided between the
federal courts and the lower level Lnder courts, which only have jurisdiction over
a specific region (Lnder) within the state. The decisions of the Federal court, in
particular those of the six federal courts that comprise Germanys supreme judicial
authorities, are binding on the Lnder courts. Germanys supreme judicial
authorities are established through Germanys Constitution, the German Basic
Law. Article 92 establishes the Federal Constitutional Court, which is responsible
for determining issues of constitutional law.
1
Article 95 establishes five other
federal courts: the Federal Court of Justice; the Federal Administrative Court; the
Federal Financial Court; the Federal Labour Court; and the Federal Social Court.
2

These courts are responsible for considering federal appeals pertaining to specific
areas of the law.

Below each supreme judicial authority is a court system comprised of local
and regional courts. Most local and regional courts are courts of first and second
instance in which the court has authority to make both factual and legal
determinations to decide cases based on their merits.
3
Federal supreme courts, on
the other hand, are appellate courts and are limited to deciding legal issues that
have been appealed from the lower courts.
4
Appeals are generally heard when
certain conditions hold: (1) where a point of law is of fundamental legal
importance; (2) where appellate proceedings are necessary to ensure the uniform
administration of justice; or (3) where there is a procedural irregularity.
5

1
BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY, art. 92 (1949), available at https://www.btg-
bestellservice.de/pdf/80201000.pdf.
2
BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY, art. 95 (1949).
3
Dr. Markus Bchenfrde et al., Max Planck Manual on the Judicial Systems in Germany and Sudan, MAX PLANCK
INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW, 40 (2006), available at
http://www.mpil.de/shared/data/pdf/manual_judicial_systems_of_germany_and_sudan.pdf.
4
INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW, 40 (2006).
5
INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW, 50 (2006).
2

Individuals can access the federal courts in protection of their individual rights
when their cases present a matter of law that falls within these categories.
Generally, individuals need to navigate through the lower court levels of appeal
before their case can reach the supreme judicial authorities.
6

The Federal Constitutional Court

The Federal Constitutional Court is tasked with hearing and resolving
disputes over the proper interpretation of the German Basic Law (Constitution).
7

The Court is also responsible for making sure that government institutions comply
with the Constitutions provisions, particularly those on fundamental rights and the
framework for the political process.
8
The Constitutional Courts decisions are final
and binding on all German courts, including the other five federal courts.
9

The Federal Constitutional Court consists of sixteen judges, who are divided
into two Senates of eight judges each.
10
The two Senates possess shared
competence over certain constitutional cases. For instance, the First Senate is
responsible for reviews regarding laws that are in violation of fundamental rights,
such as free speech, private property, and freedom of expression.
11
The Second
Senate, chaired by the President of the Court, is responsible for cases involving the
forfeiture of fundamental rights, bans on political parties, and disputes between the
federal government and the Lnder.
12
These competences are more specifically
elaborated in the Federal Constitutional Court Act.
13
Moreover, the sixteen
justices only meet together as a whole (forming a plenary session) to resolve
juridical conflicts between the two senates, or to resolve administrative matters,
such as amending the rules of procedure.
14

6
The International Institute for the Unification of Private Law, The German Judicial System (last visited Sept. 25,
2012), available at http://www.unidroit.info/mm/TheGermanJudicialSystem.pdf.
7
Bundesverfassungsgericht, The Task (2012), available at
http://www.bundesverfassungsgericht.de/en/organization/task.html.
8
Bundesverfassungsgericht, The Task (2012).
9
Bundesverfassungsgericht, The Task (2012).
10
Bundesverfassungsgericht, Organization (2012), available at
http://www.bundesverfassungsgericht.de/en/organization/organization.html.
11
Susanne Walter, Competencies and Functioning of the Federal Constitutional Court, EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW (2002), available at http://www.venice.coe.int/docs/2002/CDL-JU(2002)035-E.asp.
12
DEMOCRACY THROUGH LAW (2002).
13
Federal Constitutional Court Act art. 14 (Germany, 1951), available at
http://www.iuscomp.org/gla/statutes/BVerfGG.htm.
14
DEMOCRACY THROUGH LAW (2002).
3

Jurisdiction

Article 93 of the Constitution establishes the Federal Constitutional Court,
as well as its jurisdiction. The Court holds exclusive jurisdiction over disputes
concerning the proper interpretation of the Constitution.
15
Additionally, Article 93
provides the Court with exclusive jurisdiction over the compatibility of federal law
with the laws of the Lnder, including in issues where federal and Lnder
governments have concurrent legislative power.
16
The Court also retains exclusive
jurisdiction over disputes between the rights and duties of the federal government
and the Lnder,
17
as well as disputes between the Lnder.
18

The Federal Constitutional Court Act (Act) further defines the Courts
authority. The Act provides for the Courts exclusive jurisdiction over disputes
concerning (1) the forfeiture of basic rights; (2) the unconstitutionality of political
parties; (3) the validity of elections to the federal legislature (Bundestag); (4)
impeachment proceedings; (5) conflicts between federal law and public
international law; and (6) instances where a Lnder constitutional court, in
interpreting the Basic Law, intentionally deviates from a decision of the Federal
Constitutional Court or of another constitutional court of the Lnder, when such
intervention is requested by that constitutional court.
19
The Act also grants the
federal government authority to pass legislation adding other areas of
jurisdiction.
20

When the Court issues a decision, the holding and its essential reasoning are
binding not only upon litigants in the particular case, but also on all constitutional
organs, courts, and officers in Germany.
21
As such, if the Court declares a certain
law unconstitutional, then the legislature is forbidden from promulgating the same
provision.
22
Likewise, if the Court declares a certain interpretation of a law as

15
BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY, art. 93(1) (Germany, May 23, 1949)..
16
BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY, art. 93(1) (Germany, May 23, 1949).
17
BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY, art. 93(2), 92(2a), 92(3) (Germany, May 23, 1949).
18
19
Federal Constitutional Court Act, art. 13 (Germany, 1951); see also R. Jaeger and Dr. S. Bro, The Relations
Between the Constitutional Courts and the Other National Courts, Including the Interference in this Area of the
Action of the European Courts, CONFERENCE OF EUROPEAN CONSTITUTIONAL COURTS XIITH CONGRESS (2001),
available at http://www.confcoconsteu.org/reports/rep-xii/Duitsland-EN.pdf.
20
Federal Constitutional Court Act art. 13(15) (Germany, 1951).
21
Danielle E. Finck, Judicial Review: The United States Supreme Court Versus the German Constitutional Court,
20 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW 123, 127 (1997), available at
http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1250&context=iclr.
22
20 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW 123, 127 (1997).
4

inconsistent with the Basic Law, then no other court may consider that
interpretation constitutional.
23

Protection of Individual Rights

The Federal Constitutional Court has authority to hear complaints brought
by individuals alleging that public authorities have committed violations of the
fundamental rights enshrined in the Constitution. These rights include the right of
democratic resistance, equality under law, the right to vote, the right to a fair trial,
and the right to liberty of person.
24

Access to the Court
Any individual who feels his or her constitutional rights have been violated
by public authorities may bring cases before the Court, but they are required to
exhaust all other judicial remedies prior to bringing the case before the Federal
Constitutional Court.
25
In a 2003 landmark case known as the Teacher Headscarf
Case, Fereshta Ludin, a German schoolteacher of Muslim faith, brought suit
against a public school following the schools decision not to hire her as a teacher
because she wore an Islamic headscarf in the classroom.
26
Ludin appealed the case
through three levels of the German administrative court system (thereby
exhausting all possible lines of appeal) before launching a constitutional
complaint with the German Constitutional Court, alleging the ban was a violation
of her basic right of religious freedom.
27
The Court overturned the Federal
Administrative Courts decision and upheld Ludins right to wear a headscarf in
the classroom, reasoning that because no law regulating the wearing of religious
symbols in the classroom had existed, the states could not legally ban qualified
teachers from public positions.
28
The Court, however, did leave open the question
of whether that state law banning religious clothing, if it did exist, would be
constitutionally upheld.
29
Indeed, in 2008, a state court upheld a local law

23
24
BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY, art. 93(4)(a) (Germany, May 23, 1949).
25
Federal Constitutional Court Act art. 93(a) (Germany, 1951).
26
Daniel Bodansky, International Decision: Sahin v. Turkey; Teacher Headscarf Case (Cindy Skach), 100
AMERICAN JOURNAL OF INTERNATIONAL LAW 186, 189 (2006).
27
28
29
5

prohibiting religious symbols and clothing for teachers and other civil servants.
30

About half of Germanys sixteen Lnder have passed similar laws, which have not
been struck down by the Constitutional Court;
31
in doing so, the Court has affirmed
that the states reserve the right to pass such laws.
32

In some instances, the Court may hear a claim before all remedies have been
exhausted. Such instances include those where the dispute is of fundamental
constitutional significance
33
or where refusal to accept the complaint would leave
the complainant at a serious and unavoidable disadvantage.
34

As an initial step in considering applications to the Court, the Court will
make a determination of whether the claimed violation meets all the prerequisites
for the Court to exercise jurisdiction.
35
This includes deciding whether a
fundamental right has been infringed upon and whether that complainant has
exhausted all other remedies or falls within one of the exceptions.
36
Complainants
are required to submit complaints in writing.
37
The submission must include (1)
the sovereign act against which the complaint is filed; (2) the fundamental right
violated; (3) supporting evidence; and (4) the legal remedy sought.
38
The
proceeding is free of charge, though a fee of up to !2,600 may be levied if the
complaint is determined to be groundless or arbitrary.
39

German citizens may also seek redress for alleged human rights violations at
the European Court of Human Rights (ECtHR), where state actions in violation of
the European Convention on Human Rights may be challenged.
40
Although the
primacy of the law of the European Union (Community) is an established

30
See Human Rights Watch, Germany: Headscarf Bans Violate Rights (Feb. 26, 2009), available at
http://www.hrw.org/news/2009/02/26/germany-headscarf-bans-violate-rights.
31
AFP, Refusing Job Over Muslim Headscarf Wrong: German Court (Oct. 19, 2012), available at
http://english.alarabiya.net/articles/2012/10/18/244539.html.
32
AFP, Refusing Job Over Muslim Headscarf Wrong: German Court (Oct. 19, 2012),
33
Federal Constitutional Court Act art. 93(a) (Germany, 1951).
34
Federal Constitutional Court Act art. 90 (Germany, 1951).
35
Bundesverfassungsgericht, Constitutional Complaint (2012), available at
http://www.bverfg.de/en/organization/verfassungsbeschwerde.html.
36
Bundesverfassungsgericht, Constitutional Complaint (2012).
37
Bundesverfassungsgericht, Instructions on Lodging a Constitutional Complaint (2012), available at
http://www.bverfg.de/en/organization/vb_merkblatt.html.
38
Bundesverfassungsgericht, Instructions on Lodging a Constitutional Complaint (2012).
39
Bundesverfassungsgericht, Constitutional Complaint (2012).
40
European Convention on Human Rights, art. 32 (1950), available at
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-
5C9014916D7A/0/CONVENTION_ENG_WEB.pdf.
6

principle,
41
some states, including Germany, Spain, Italy, and Poland, have rejected
its supremacy over state constitutional law.
42
Nonetheless, as a Member State,
Germany is required to observe Community law and interpret the Constitution in a
manner open to international law.
43
As such, decisions by the ECtHR serve as
interpretation aids to the Basic Law.
44

In general, where the ECtHR has issued a judgment that a violation of the
Convention has occurred, the Constitutional Court or the legislature has responded
by repealing the offending law or declaring it unconstitutional. For instance, in
2009, the ECtHR in the Case of M v. Germany issued a judgment declaring that
Germanys practice of retroactively prolonging a prisoners preventive detention
order beyond the ten-year maximum limit was a violation of the prisoners right to
liberty under the Convention.
45
The case had previously been brought before the
Constitutional Court in 2001, which upheld the prolongation as compatible with
the Basic Law.
46
In 2011, however, the Constitutional Court reversed its position,
ruling that retrospective extension of preventive detention was a violation of the
Basic Laws guarantees protecting legitimate expectations of the law and the right
to liberty.
47
In its ruling, the Court noted the ECtHR decision in M v. Germany as
illustrative of the rule of law principles enshrined in the Basic Law.
48
The Court
also held that all provisions regarding the imposition and duration of preventive
detention did not satisfy the constitutional requirement of establishing a difference
between preventive detention and serving a term of imprisonment, thereby

41
Consolidated Version on the Treaty on European Union, art. 4(3) (2010), available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:EN:PDF (requiring Member States to
adopt appropriate measures to fulfill obligations arising out of the Treaty and refrain from any measure that would
jeopardize the Unions goals). See also Judgment of the Court of Justice, Costa v. ENEL, Case 6/64 (15 July 1964)
(holding that Member States are required to abide by the principle that Community law takes primacy over the
states domestic laws).
42
Roman Kwiecie", The Primacy of European Union Law over National Law Under the Constitutional Treaty, 6
German Law Journal 1479, 1489 (2005), available at
http://www.germanlawjournal.com/pdfs/Vol06No11/PDF_Vol_06_No_11_1479-
1496_Special%20Issue_Kwiecien.pdf; see also Anneli Albi, Supremacy of EC Law in the New Member States, 3
EUROPEAN CONSTITUTIONAL LAW REVIEW, 25 (2007), available at
http://kar.kent.ac.uk/424/1/Supremacy_30OCT07DP.pdf.
43
Federal Constitutional Court, Provisions on Preventive Detention Unconstitutional (May 4, 2011), available at
http://www.bundesverfassungsgericht.de/en/press/bvg11-031en.html. See also Dieter H. Scheuing, The Approach to
European Law in German Jurisprudence, 5 GERMAN LAW JOURNAL 703, 707-709 (2004).
44
Federal Constitutional Court, Provisions on Preventive Detention Unconstitutional (May 4, 2011).
45
Case of M v. Germany, no. 19359/04, para. 141, ECHR 2009 (Dec. 17, 2009); see also German Criminal Code
art. 67(d) (1998), available at http://www.gesetze-im-internet.de/englisch_stgb/index.html. In M v. Germany, a
German citizen challenged the retrospectively prolongation of his preventive detention order after the German
Criminal Code was amended in 1998 terminating the ten-year limit that had been in force.
46
Case of M v. Germany, no. 19359/04, para. 26-27, ECHR 2009 (Dec. 17, 2009).
47
48
7

ordering the need for new legislation.
49
The government has until May 31, 2013 to
reform the existing law.
50
In the meantime, the current rules remain in place,
subject to certain changes, such as the provision of therapy sessions designed to re-
orient prisoners to normal living conditions.
51

As the final authority on disputes over the proper interpretation of the
German Constitution, the Federal Constitutional Court represents the ultimate
judicial guardian of the constitutional order and its guiding principles. Further, as
the arbiter of disputes between governmental entities, the Federal Constitutional
Court plays an important role in maintaining the harmonious functioning of
government and its components.

The Federal Court of Justice

Established pursuant to the Constitution,
52
the Federal Court of Justice (FCJ)
is Germanys final appellate court.
53
It is tasked with hearing disputes on points of
law arising in civil and criminal cases from the local, regional, and higher regional
courts of general jurisdiction.
54
As the FCJ is an appellate court,
55
individuals may
only access the Court following a successful appeal of a lower court decision.

Jurisdiction

The FCJs jurisdiction is limited to appeals on points of law. As a result, the
FCJ does not hear additional evidence or review factual determinations made by
the local, regional, and higher regional courts.
56
Instead, the FCJ considers
challenged questions of law. The FCJ will only consider evidence if procedural
errors are found in lower court decisions.
57

49
50
Spiegel International, Court Orders Overhaul of Preventive Detention Laws (May 4, 2011), available at
http://www.spiegel.de/international/germany/protecting-criminals-rights-court-orders-overhaul-of-preventive-
detention-laws-a-760686.html.
51
Spiegel International, Court Orders Overhaul of Preventive Detention Laws (May 4, 2011).
52
53
The Federal Court of Justice, The Federal Court of Justice, 4 (2010), available at
http://www.bundesgerichtshof.de/SharedDocs/Downloads/EN/BGH/brochure.pdf;jsessionid=E6D0AAD1E3A3DA
A9EFC1EFA7993B4796.2_cid134?__blob=publicationFile.
54
The Federal Court of Justice, The Federal Court of Justice, 4-5 (2010).
55
2012).
56
The Federal Court of Justice, The Federal Court of Justice, 9 (2010).
57
8

The Courts primary task is to ensure uniformity of the law throughout
Germany by clarifying and interpreting the law.
58
To carry out this task, a
President of the Court presides over 127 judges, who sit on twelve civil panels and
five criminal panels.
59
To ensure uniform decision making among the judges of
the FCJ, these panels are presided over by a Grand Civil Panel or a Grand Criminal
Panel.
60

Protection of Individual Rights

The FCJ protects individual rights by reviewing challenges to lower court
decisions on criminal and civil matters. Similar to the Constitutional Court,
individuals appeal lower court decisions to the FCJ.

Access to the Court
In civil cases, individuals may only access the FCJ if the lower appellate
court grants leave to appeal a judgment.
61
Appeals are permitted in three instances:
(1) where the lower appellate court decides a point of law is of fundamental legal
importance; (2) where appellate proceedings are necessary to ensure the uniform
administration of justice; or (3) where there has been a procedural irregularity.
62
In
criminal cases, the FCJ may hear appeals from either the defendant or the public
prosecutors office.
63
Appeals, however, are limited to capital crimes or crimes of
a certain degree of severity that could carry a sentence of more than four years in
prison, psychiatric confinement, or preventive detention.
64
Appeals are also
permitted where the defendant is charged with crimes against the state or in
proceedings against terrorist organizations.
65

In addition, certain laws intended to ensure uniformity of the law enumerate
instances in which the higher regional courts are required to refer points of law to
the FCJ for review.
66
For instance, the Judicature Act provides that a higher
regional court is required to refer a legal issue to the FCJ where that court seeks to
depart from the jurisprudence set by other higher regional courts.
67

58
59
60
61
Der Bundesgerichtshof, Proceedings at the Federal Court of Justice (2012), available at
http://www.bundesgerichtshof.de/EN/FCoJ/TaskOrganisation/Proceedings/proceedings_node.html.
62
Der Bundesgerichtshof, Proceedings at the Federal Court of Justice (2012).
63
64
65
66
67
9

As the final appellate court on civil and criminal issues, the FCJ protects the
uniformity of the law. For instance, in 2011, the FCJ reversed the Higher Regional
Courts decision regarding the timeliness of filing an arbitration application.
68
The
FCJ held that it is not necessary for the application to be served on the other side
prior to the initiation of the arbitral tribunal.
69
This decision is binding on the
lower state courts of general jurisdiction such that procedural regulations on filing
deadlines are uniform across the state.
70
The ruling is helpful in clarifying that a
court may accept arbitration applications immediately upon submission to the
court, eliminating potential court delays as a result of having to wait for service on
the other party (a process that, in some circumstances, takes some time).
71

Specialized Federal Courts

The specialized federal courts are the final appellate courts in specific areas
of law. They include the Federal Administrative Court, the Federal Financial
Court, the Federal Labour Court, and the Federal Social Court. Like the FCJ, these
courts were also established under Article 95 of the Constitution.
72
In general, the
specialized federal courts may only exercise jurisdiction on points of law that
remain unresolved after complainants have exhausted the respective lower courts.
73

Individual complaints may be heard by these courts on appeal, provided that the
appeal deals with (1) a fundamental point of law or legal principle that is contested
or unresolved; (2) variance or deviation from past precedent at the lower court,
requiring appellate proceedings to ensure the uniform administration of justice; or
(3) a procedural irregularity that has compromised the judgment of the lower
court.
74

68
Stephan Wilske and Claudia Krapfl, Germany Federal Court of Justice Decision on Timeliness of Application to
Courts to Determine Admissibility of Arbitration, PRACTICAL LAW COMPANY (Sept. 1, 2011), available at
http://arbitration.practicallaw.com/1-507-9648.
69
Courts to Determine Admissibility of Arbitration, PRACTICAL LAW COMPANY (Sept. 1, 2011).
70
Courts to Determine Admissibility of Arbitration, PRACTICAL LAW COMPANY (Sept. 1, 2011).
71
Courts to Determine Admissibility of Arbitration, PRACTICAL LAW COMPANY (Sept. 1, 2011), available at
http://arbitration.practicallaw.com/1-507-9648.
72
BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY, art. 95 (Germany, May 23, 1949).
73
Dr. Markus Bchenfrde et al., Max Planck Manual on the Judicial Systems in Germany and Sudan, MAX
PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW, 50 (2006).
74
10

As constitutional issues may arise within each of these areas of law, such
issues may also reach the Constitutional Court, the result of which would be
binding on all other courts. For instance, when a party raises a constitutional
objection against a statute in any civil, criminal, or administrative case, the court
hearing the case is obliged to suspend the proceedings and refer the case to the
Constitutional Court to decide whether the statute is unconstitutional.
75
The
original proceeding may then resume only when the Constitutional Court has
issued a decision on the constitutional question.
76

The Federal Administrative Court

The Federal Administrative Court was established in 1953.
77
It represents
Germanys final appellate court on administrative issues and considers
administrative disputes originating in lower administrative courts.
78
Such matters
may include disputes over administrative decisions or directives, including those
that concern public order and security, asylum, building, traffic, trade and industry,
municipal revenue and administrative organization, education, environmental
protection, or civil service matters.
79

Controversies before the Federal Administrative Court may involve disputes
between a citizen and a public authority, thereby permitting individuals with
administrative complaints to access the administrative system. Alternatively, the
disputes may be between entities, such as a municipality and one of the Lnder.
80

However, as the Federal Administrative Court may only hear appeals on certain
points of law in disputes that fall within the standard appeals criteria, a complaint
is obligated to first navigate the lower state courts.
81

75
76
77
Bundesverwaltungsgericht, Information and Decisions (last visited Apr. 12, 2012), available at
http://www.bundesverwaltungsgericht.de/enid/weitere_Informationen/Information_and_Decisions__EN__g0.html.
78
Bundesverwaltungsgericht, Information and Decisions (last visited Apr. 12, 2012).
79
Bundesverwaltungsgericht, Information and Decisions (last visited Apr. 12, 2012), available at
http://www.bundesverwaltungsgericht.de/enid/weitere_Informationen/Information_and_Decisions__EN__g0.html.
80
Bundesverwaltungsgericht, Information and Decisions (last visited Apr. 12, 2012).
81
Dr. Markus Bchenfrde, Clemens Feinugle, Noha Ibrahim, Verena Wiesner, The Judicial Systems in Germany
and Sudan, MAX PLANCK INSTITUTE 42 (2006).
11

The Federal Financial Court

The Federal Financial Court hears and resolves points of law arising from
disputes relating to taxation.
82
Such matters primarily involve reviewing
outstanding points of law concerning official notifications issues by the tax and
revenue offices and customs authorities.
83
These notifications often include
assessments on the legality of taxes and duties, child allowance, investment
allowance, or tax consultants.
84
The Federal Financial Court is the court of final
instance for all such disputes, requiring parties to first navigate the lower courts
with an unresolved point of law.
85

Unlike other supreme judicial authorities that have lower courts of first and
second instance, the Federal Financial Court only has courts of first instance: the
Fiscal Courts of the Lnder and the higher regional courts.
86
In this system,
citizens may file complaints against tax returns or administrative acts,
87
but cases
only reach the Federal Financial Court if the dispute falls within the standard
appeals criteria.
88
The Code of Procedure for the Fiscal Courts governs the Federal
Financial Court.
89

The Federal Labour Court

The Federal Labour Court is the final appellate court on all points of law
arising from disputes covered by the Labour Courts Act.
90
As with the other
supreme judicial authorities, such points of law are required to have first exhausted
the lower regional labor courts of first and second instance.
91
Also in line with
Germanys other supreme judicial authorities, the Federal Labour Court may not
review questions of fact.
92

82
2012).
83
Bundesfinanzhof, The Federal Fiscal Court (2012), available at
http://www.bundesfinanzhof.de/content/information-english.
84
Bundesfinanzhof, The Federal Fiscal Court (2012).
85
86
87
88
89
90
Bundesarbeitsgericht, General Information (2012), available at
http://www.bundesarbeitsgericht.de/englisch/general.html.
91
Bundesarbeitsgericht Federal Labour Court, General Information (2012), available at
http://www.bundesarbeitsgericht.de/englisch/general.html.
92
Bundesarbeitsgericht Federal Labour Court, General Information (2012).
12

Disputes generally fall under two different kinds of court procedures known
as Urteil procedures or Beschluss procedures.
93
These procedures differ in the
kind of decision they lead to, as well as in determining who is primarily
responsible for providing the necessary evidence required to make a decision (the
parties or the court itself).
94
The Federal Labour Courts Urteil procedures place
the burden of gathering evidence on the parties themselves.
95
Urteil procedures
govern a broad spectrum of disputes between employer and employee, which may
include contractual disputes or disputes of compensation and benefits, leave,
competitive restrictions, pensions, and unfair dismissal.
96
Urteil procedures also
govern collective bargaining agreements and union issues, such as freedom of
association and the right to organize.
97

By contrast, Beschluss procedures place responsibility on the court to
establish the facts of the case.
98
Beschluss procedures govern disputes arising from
the Works Constitution Act and from the Senior Management Representatives
Committee Act.
99
Beschluss procedures also govern the election of employee
representatives to company supervisory boards and some issues concerning
collective bargaining.
100
Within this context, individuals have access to the Federal
Labour Court where there is an outstanding point of law. Parties with access to the
Court also include employers, trade unions, independent employers associations,
or other professional or trade organizations.

The Federal Social Court

The Federal Social Court is the final appellate court on disputed, non-
constitutional points of law that fall within the sphere of social welfare and social
security.
101
Individuals may appeal decisions arising from the state social courts of

93
94
95
96
97
98
99
100
101
Bundessozialgericht, English Summary (2012), available at
http://www.bsg.bund.de/EN/Home/homepage__node.html?__nnn=true.
13

first and second instance that concern insurance, social security, or social
compensation for war veterans.
102
Complaints regarding violations of the Severely
Handicapped Persons Act or state compensation for damage to health are also
governed in this court.
103
Passage of legislation in 2005 extended jurisdiction of
the Federal Social Court to disputes regarding welfare benefits.
104
In this context,
parties may bring appeals for grievances against other individuals or state entities.

Like the other federal supreme courts, access to the Federal Social Court is
permitted only through appellate review. This means appeals are admissible only
if the regional state court (most often the Higher Social Court) has expressly
granted admission in its verdict, or if it has been accepted by the Federal Social
Court in response to a refusal of leave to appeal by the presiding court.
105

Moreover, like the other supreme judicial authorities, the Federal Social Court may
only adjudicate points of law.
106

The specialized federal courts present the last resort on all non-constitutional
points of law that fall generally within the following areas of law: (1)
administrative, (2) financial, (3) labor, (4) or social. By establishing federal courts
according to specific areas of law rather than funneling those disputes through
courts of general jurisdiction, Germany affords parties access to judicial bodies
with specialized legal knowledge. By establishing two and three-tier systems
within each area, Germany likewise aims for the federal courts to receive only a
small percentage of appeals on the most pressing points of law.
107

Conclusion

Germanys supreme judicial authorities are comprised of six distinct federal
supreme courts, each with exclusive jurisdiction over certain aspects of law. Each
supreme judicial authority sits atop a system of regional and local courts of first
and second instance, ensuring uniformity in the application of law. Moreover,
because they highest authorities may only be accessed through appellate review or
some very limited circumstances, the federal courts are called upon only to review

102
Bundessozialgericht, English Summary (2012); see also Dr. Markus Bchenfrde et al., Max Planck Manual on
the Judicial Systems in Germany and Sudan, MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND
INTERNATIONAL LAW, 38 (2006).
103
Bundessozialgericht, English Summary (2012).
104
105
106
107
14

significant matters of law. Such a staggered system provides for a judiciary that is
efficient, but also provides for universal access to justice mechanisms to the fullest
extent possible.

German Supreme Judicial Authorities

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German Supreme Judicial Authorities

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GERMAN SUPREME JUDICIAL

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