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Starting point of the decision
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The Federal Fiscal Court (BFH) addressed the procedural-law question under what conditions parties may turn to the Federal Constitutional Court (BVerfG) due to a possible violation of the constitutionally guaranteed right to the lawful judge. At the core was what requirements must be met when substantiating such an objection and whether, for this purpose, it is mandatory to first pursue a specific remedy before the specialised courts.
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Constitutional-law reference: Right to the lawful judge
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Scope of protection and significance for the proceedings
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The right to the lawful judge (Art. 101(1) sentence 2 GG) is intended to ensure that a court’s jurisdiction and composition are determined in advance by abstract, general rules. This prevents a panel from being deliberately selected or altered for an individual case. In practice, disputes arise in particular where the composition of a panel, the participation of individual judges, or the application of case-allocation plans is at issue.
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Possible procedural-law points of connection
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Procedural objections in this context may be oriented, for example, to whether a court examined a composition issue sufficiently or whether a composition was maintained despite corresponding objections. What is decisive as a rule is not the substantive assessment of the subject matter in dispute, but compliance with the prescribed rules on jurisdiction and composition.
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Core statements of the BFH: Preconditions for access to constitutional-court review
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Standard: exhaustion of legal remedies and subsidiarity
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For a constitutional complaint, it is generally required that remedies before the specialised courts have been exhausted. In addition, the principle of subsidiarity applies: insofar as possibilities exist within the specialised courts to remedy or clarify an alleged violation of fundamental rights, these must be used with priority. In fiscal-court practice, this raises, among other things, the question whether and to what extent a party must, in addition to the regular legal remedies, also pursue a special remedy against the court’s composition.
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Simplification of access in composition matters
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In its decision of 10 November 2023 (case no. IX K 12/21), the BFH clarified that access to constitutional-court review in the event of an asserted violation of the lawful judge must not be made contingent on excessive formal requirements. What matters is that the alleged procedural violation is raised in a comprehensible manner and addressed in a procedurally appropriate way. This ensures that the path to constitutional-court review is not unnecessarily made more difficult by additional hurdles under specialised procedural law.
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Burden of substantiation and judicial review
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At the same time, it remains the case that the alleged violation must be presented in a substantiated manner. However, the requirements for substantiation are guided by the fact that parties generally do not have complete insight into internal processes and the allocation of judicial responsibilities. The decision therefore places the burden of substantiation in a proportionate relationship to the parties’ actual possibilities of obtaining knowledge.
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Classification for fiscal-court proceedings
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Relevance for complaints against non-admission of appeal and further remedies
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The decision concerns in particular constellations in which review of a fiscal-court decision before the BFH or—subsequently—constitutional-court review may be considered. The focus is on whether the objection of an incorrect composition, or of a violation of the lawful judge, was introduced into the proceedings in such a way that further constitutional-court review does not already fail due to formal requirements.
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Procedural fairness and effective legal protection
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In its tendency, the decision strengthens the procedural enforceability of the claim to determination by the lawful judge. It underscores the importance of effective legal protection, without abandoning the principles of exhaustion of remedies. The decision thus operates in the field of tension between procedural order and the constitutional requirement not to make access to review of possible fundamental-rights violations unreasonably difficult.
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Note on the source situation
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This article is based on the publicly accessible content of the reporting on the BFH decision of 10 November 2023, case no. IX K 12/21, as published at https://urteile.news/. Insofar as proceedings or procedural preliminary issues have not yet been concluded in other constellations, it must always be borne in mind that a final legal assessment of the respective circumstances of the individual case depends on how the competent courts establish and assess the facts in the specific proceedings.
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Transition: Classification in the context of contested proceedings
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Issues of procedural rules, the composition of the adjudicating panel, and the scope of legal remedies before the specialized courts can be of considerable importance for companies, investors, and high-net-worth individuals, particularly when it comes to safeguarding procedural rights and structuring the subsequent procedural steps. MTR Legal Attorneys-at-Law supports mandates in this context within the framework of Litigation and places procedural issues within the respective overall context of the proceedings.
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