Elke Luise Barnstedt
Secretary General of the German Federal Constitutional Court
Judicial Activism in the Practice of the German Federal Constitutional Court: Is the GFCC an Activist Court?
The question of whether the Federal Constitutional Court is an activist court cannot simply be answered 'yes' or 'no'. In Germany, lawyers have a standard answer to questions that cannot be answered with a mere 'yes' or 'no'. That answer is: 'It depends.' This is also the first way in which I would like to reply to the key question I will address here. Of course, however, I will as the discussion progresses try to answer it in a differentiated manner and to substantiate my answer by making reference to some selected examples from the Federal Constitutional Court 's case law. In this context, one must differentiate matters according to the reasons for the Federal Constitutional Court 's scope for formative action, which means that one must differentiate among the following aspects:
1. the Federal Constitutional Court 's competencies;
2. the content of the Federal Constitutional Court 's decisions; and
3. the effect of the Federal Constitutional Court 's decisions.
1. The Federal Constitutional Court's competencies
A constitutional court's possibilities of taking an active part in the shaping of policy are determined above all by the competencies that have been designated for it. In Germany , these competencies are set out in the Basic Law (Grundgesetz) 1 , in the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) 2 , and in other laws. What is inherent to all of the provisions concerning competencies is that they restrict the Federal Constitutional Court's tasks to examining the following, with the Basic Law as its sole standard of review: firstly, the compatibility of an act of state with the Basic Law (the compatibility of a law, for instance, can be examined by means of a constitutional complaint, or through proceedings for the abstract or concrete review of statutes, and the compatibility of a court ruling can be examined by lodging a constitutional complaint); secondly, the scope of rights and obligations of supreme federal organs or other parties (in so-called Organstreit proceedings); and, thirdly, the scope of rights and obligations in the case of disputes about the rights and obligations of the federation and the Länder (states)3. It is true that the Federal Constitutional Court is a constitutional organ; it is, however, not a political organ but a court of justice, bound by the strict standard of the Basic Law in its decision-making.
Another restriction of the 'political activities' of the Federal Constitutional Court is due to the fact that the Federal Constitutional Court has no right of initiative whatsoever; thus, it has no possibilities of becoming active without the initiative of another constitutional organ, or of organs of the federation or of the Länder, without either a submission by a court or an application by a citizen. The Basic Law and the Federal Constitutional Court Act confer on the Federal Constitutional Court only the competence to decide in cases where the Basic Law, the Constitutional Court Act (which is founded on the Basic Law), and other laws provide the right to make applications for constitutional organs, for sections of such organs, for organs of the federation or of the Länder, or for citizens and also contain provisions concerning the courts' right to make referrals to the Federal Constitutional Court. In no event can the Federal Constitutional Court become active of its own accord. In this meaning - that is, in the meaning of the question of whether the Federal Constitutional Court can take the initiative where a political question is at issue - the answer to the question as posed is a simple 'no'.
For the sake of completeness, I would, however, like to mention that the Federal Constitutional Court, or, to be more precise, the Plenum, consisting of all 16 judges (both chambers) sitting together, does have a right of initiative, which can at most exert an indirect political effect: Its right of initiative consists in the possibility for the Plenum to initiate, pursuant to § 105 of the Federal Constitutional Court Act, the retirement or dismissal of a Federal Constitutional Court judge by authorising the Federal President accordingly. Such a procedure has not yet taken place in the 56 years of the Federal Constitutional Court 's existence. Moreover, the right of initiative of the Federal Constitutional Court Plenum is restricted to cases in which a Federal Constitutional Court judge is to be removed because of permanent unfitness for service or where a Federal Constitutional Court judge has been sentenced in a final and unappealable judgment because of a dishonourable act or to more than six months' imprisonment, or where he has committed a breach of duty that is so gross that his remaining in office is ruled out. Thus, the right of initiative has no politically motivated starting point. All in all, this right of initiative is completely apolitical as regards its motive, and it is virtually insignificant; as noted at the outset, I have mentioned it only for the sake of completeness.
This description of the Federal Constitutional Court's limited scope of political action is not intended to negate or to disguise the fact that many proceedings, especially those in which the Federal Constitutional Court acts as a court judging state matters and thus rules on disputes between constitutional organs or other organs of the federation or of the Länder, are caused by a political issue and a political dispute. This was the case, for instance, in the Organstreit proceedings on the question of the constitutionality of the German Armed Forces' missions abroad and on the question of their requiring the consent of the German Bundestag 4 ; this was also the case in the Organstreit proceedings that were initiated by some members of the Bundestag against the amendment of § 44a (1) of the Act on the Legal Status of Members of the German Bundestag (Abgeordnetengesetz), pursuant to which holding a seat in the Parliament is the focus of the professional activities of a member of the German Bundestag, and against the obligation thus imposed for the members of the Bundestag to disclose their additional income5. The ruling in the Organstreit proceedings undertaken by some members of the Bundestag concerning the question of whether the dissolution of the German Bundestag on 21 July 2005 by the Federal President had been compatible with the Basic Law was also based on a political issue6. Time and again, issues that have been subject to intensive discussion before in the political sphere, or that will be intensively discussed afterwards, have to be finally settled by the Federal Constitutional Court also by means of constitutional complaint proceedings or of proceedings for the review of statutes7. Examples of this are cases of proceedings for the abstract review of a statute, and I could cite many cases in this connection - for instance, in recent case law, the proceedings for the review of a statute that had been initiated by the opposition at the time concerning the question of the constitutionality of the 2004 Budget Act and of the procedure of its adoption8. Another example can be found in the proceedings addressing the question of the constitutionality of the Civil Partnerships Act (Lebenspartnerschaftsgesetz), and especially of its compatibility with § 6 (1) of the Basic Law, which places marriage and family under the special protection of the state9. The Lifetime Partnerships Act has recognised same-sex partnerships in important respects and has in some respects accorded these partnerships a status that previously had been reserved for marriage.
Another prominent example of the Federal Constitutional Court 's competence to take an active part, with far-reaching consequences, in the shaping of policy is its competence, which is set out in § 21 (2) of the Basic Law, to rule on the unconstitutionality of a political party. Through its decision to ban a political party or to deny a motion to this effect, the Federal Constitutional Court seriously intervenes in the course of politics. This statement, must, however, be put into perspective by describing the facts: in the 56 years of the Federal Constitutional Court's existence, only eight party-ban proceedings have been brought before it, and five judgments have been passed in party-ban proceedings10.
What must be mentioned in this context is the Federal Constitutional Court 's competence to declare laws that have been adopted by the Bundestag and by the parliaments of the Länder, or individual provisions of such laws, unconstitutional or even void. Legislation is the political decision perse. Its result, the law, marks the end of a process of policy-shaping, perhaps even of the most important such process. The fact that the Federal Constitutional Court can declare laws, in whole or in part, unconstitutional and even void and that the Federal Constitutional Court's decisions have the force of law, and that they are even published in the FederalLawGazette in the manner of a law 11 , makes it unmistakably evident that the Federal Constitutional Court, by means of its competence and in the shape of its decisions, is also active in the political sphere in this respect, even if its activity is restricted, as I have already described, by the framework for its review, which is the...