Research on Judicial Review in Germany

I was born and raised in Germany and moved to the US when I was 14 years old, therefore I am

going to explain the judicial review in Germany. To being with, Germany has a parliamentary

system, which includes the general legislature, called German Federal Parliament (Bundestag).

There is also the Federal Council (Bundesrat), which represents the interests of the states

(Länder). Additionally, the federal constitution, is known as “Basic Law” (Grundesgesetz),

which was written by the Federal Republic of Germany. Judicial Review in Germany is very

different than in the US. In Germany the Federal Constitution Court (Bundesverfassungsgericht)

is in charge to make sure the Basic Law is obeyed, by evaluating administrative and judicial

decisions. The Federal Constitutional Court is made up of two senates, with eight members each

and each senate is in charge of looking over different areas of the Basic Law. On top of that, the

Federal Constitutional Court is in charge to point out laws that do not match the constitution and

are therefore to abolish them.

The Judicial Review process starts with the Federal Constitutional Court, as they can determine

the constitutionality of statutes. If ordinary courts consider a federal or Land law to be

unconstitutional, that does not fall under non-parliamentary decision, they have to give it to the

Federal Constitutional Court for review with a reasoning, as they make the decision. Lastly, the

Federal Constitutional Court will make the decision, depending on whether the referral was

found incompatible or compatible with the Basic Law.

An example of judicial review protecting human rights from Germany in the past is improved

custody rights for fathers of children born out of marriage. This case is described on the “Impact

of the European Convention of Human Rights” website. It describes a man named Horst

Zaunegger who was not given custody for his child, as the couple had split up and was never
married before. He could only get custody with the mother’s permission and if the child’s well-

being was endangered. The court acclaimed how this would be discriminating towards fathers

and in 2013 the law was changed, that joint custody would be granted as long as it affects the

child positively (Council of Europe, Germany).

An action that can be taken to better promote human rights would be in the global supply chains.

There needs to be a call for action regarding the global economy, as the Supply Chain Due

Diligence Act, still needs some changes made. Some changes that could be made and worked

towards in the future are: the law only applies to few companies and needs to apply to more, the

law only applies to protect specific environmental issues and lastly, a critical point is that the law

does not include any civil liability regulations.

References and Sources used for Research

Bundesverfassungsgericht. (n.d.). Retrieved May 28, 2022, from

https://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtige-
Verfahrensarten/Konkrete-Normenkontrolle/konkrete-normenkontrolle_node.html

Encyclopædia Britannica, inc. (n.d.). Federal Constitutional Court. Encyclopædia Britannica.

Retrieved May 28, 2022, from https://www.britannica.com/topic/Federal-Constitutional-
Court

Improved custody rights for fathers of children born out of marriage. Impact of the European
Convention on Human Rights. (n.d.). Retrieved May 28, 2022, from
https://www.coe.int/en/web/impact-convention-human-rights/-/improved-custody-rights-
for-fathers-of-children-born-out-of-marriage

Wijaya, A., & Nasran, N. (n.d.). Comparison of judicial review: A critical approach to the model
in several countries. JURNAL LEGALITAS. Retrieved May 28, 2022, from
https://ejurnal.ung.ac.id/index.php/JL/article/view/11809