Concept and Fundamentals of Abstract Judicial Review
Die Abstract Judicial Review is an important constitutional court procedure in the German legal system. It serves as a preventive review of legal norms for their compatibility with the Basic Law. Through abstract judicial review, the Federal Constitutional Court examines whether a statutory provision—regardless of a specific individual case—complies with the constitution. In contrast to other procedures, it takes place independently of individual cases and without the direct involvement of a particular legal subject.
Legal Basis and Purpose
Statutory Regulations
Abstract judicial review is regulated in Article 93 paragraph 1 no. 2 of the Basic Law (GG) as well as in the Sections 76 to 79 of the Federal Constitutional Court Act (BVerfGG) According to these provisions, the Federal Constitutional Court may decide, within the framework of abstract judicial review, whether federal or state law complies with the Basic Law or, in the case of state law, with other federal law.
Objective
The purpose of the procedure is to identify unconstitutional laws at an early stage and prevent their application. This promotes legal certainty and prevents unlawful provisions from having legal effects. Abstract judicial review serves as an objective review of constitutionality, which means protecting the constitution and upholding its value system against conflicting legal norms.
Requirements and Entitlement to Apply
Eligible Authorities
Unlike concrete judicial review (which is initiated by courts), only specially authorized officeholders are entitled to bring abstract judicial review (§ 76 BVerfGG):
- Federal Government
- State Governments
- One quarter of the members of the German Bundestag
Other state institutions or private individuals cannot initiate this procedure.
Subject of Review
The following is reviewed:
- Federal Law for its compatibility with the Basic Law
- State Law for its compatibility with the Basic Law or with other federal law
The subject of review is limited to norms with external effect (so-called rule character). Internal administrative regulations or executed legal actions cannot be the subject of abstract judicial review.
Procedure of Abstract Judicial Review
Filing an Application
The procedure begins with a written application by the eligible authorities. The application must state the specific request for review, the affected legal norm, and the concerns regarding its compatibility with higher-ranking law.
Participants and Statements
In the review procedure, the Federal Constitutional Court regularly involves, in addition to applicants and respondents, the respective affected constitutional bodies and institutions; their statements are taken into account in the proceedings.
Decision of the Federal Constitutional Court
The Federal Constitutional Court reviews the application comprehensively. If it concludes that the challenged norm is incompatible with higher-ranking law or void, it states this in the operative part of the judgment. The decision is generally binding (§ 31 BVerfGG).
Effects of the Decision
If a norm is declared void by the Federal Constitutional Court, it retroactively loses its validity. If incompatibility with the Basic Law is established, the provision generally remains in place, but the court may issue transitional regulations and grant the legislature a period for amendment.
Significance in the Legal System
Abstract judicial review ensures effective and direct control of the compliance of norms with the Basic Law, independent of individual legal disputes. It contributes to the protection of the constitution, the clarity of the legal order, and the uniformity of jurisprudence. This procedure strengthens the principle of the separation of powers and prevents unconstitutional provisions from continuing to have legal effect.
Distinction from Other Types of Judicial Review
Concrete Judicial Review
While abstract judicial review takes place independent of an individual case, concrete judicial review is initiated by a court under Article 100 GG when there are doubts about the constitutionality of a norm in pending proceedings.
Judicial Review Procedures before State Constitutional Courts
Comparable procedures exist in the federal states before the state constitutional courts, which are limited to reviewing state law.
Distinction from Constitutional Complaints
Unlike the constitutional complaint, which concerns the violation of individual fundamental rights, abstract judicial review serves exclusively for the objective review of legal norms for their constitutionality.
Examples and Practical Relevance
Abstract judicial review has been used several times in German legal history, for example in the decision on “partial budget legislation” or the review of parity laws in electoral statutes of individual states.
By enabling norms to be reviewed at an early stage and independent of a specific legal dispute, legislative misconduct can be effectively countered and the protection of fundamental rights and the principles of the rule of law in the German legal system can be safeguarded.
Literature, Web Links and Further Information
- Federal Constitutional Court Act (BVerfGG) – Sections 76 ff.
- Basic Law for the Federal Republic of Germany – Art. 93 para. 1 no. 2 GG
- Federal Constitutional Court: Information on the judicial review procedure (www.bundesverfassungsgericht.de)
- Papier, Hans-Jürgen: The Abstract Judicial Review in Practice. In: NJW 2015, pp. 1223-1230
Note: All representations serve information purposes and reflect the state of legal development up to the year 2024. For application in individual cases, reference must be made to the current legal situation and jurisprudence.
Frequently Asked Questions
Who is entitled to file an application in abstract judicial review?
Eligible to file an application in the procedure of abstract judicial review under Art. 93 para. 1 no. 2 GG, § 76 BVerfGG, are generally the Federal Government, a State Government, or one quarter of the members of the Bundestag. Particularly high hurdles exist for applications by members of the Bundestag, as at least one quarter of the statutory number of members must come together to file the application. Individual members of parliament or parliamentary groups are therefore not entitled to apply on their own. Furthermore, a state government can only initiate the review of federal law and vice versa; review of its own state law by the respective state government is not possible.
Which legal norms may be subject to abstract judicial review?
Only legal norms, meaning formal or substantive laws of the Federation or the states, may be the subject of abstract judicial review. All types of laws may be considered, including statutory instruments or ordinances, as long as they are below the rank of a formal law and have general binding effect. Individual acts, administrative acts, or purely internal provisions, however, cannot be subject to the procedure of abstract judicial review. The purpose of judicial review is to determine the general compatibility of norms with higher-ranking law—particularly the Basic Law—without regard to a specific case or the applicant’s affectation.
What is the significance of the objective standard of review in abstract judicial review?
Unlike individual proceedings, in abstract judicial review the Federal Constitutional Court examines solely the relationship of the norm to higher-ranking law, especially the Basic Law. The review is comprehensive and objective, independent of the applicant’s individual affectation. The decisive standard is in particular the Basic Law, possibly in conjunction with other federal laws or European law. The court is not limited to the objections raised in the application, but may examine the challenged norm on all relevant constitutional standards.
What effects does an affirmative decision in abstract judicial review have?
If the Federal Constitutional Court finds that a norm is incompatible with the Basic Law, it generally declares the provision void with the decision in accordance with § 78 BVerfGG. The voidance takes effect ex tunc, i.e., from the outset, unless the court provides otherwise in exceptional cases. The decision of the Federal Constitutional Court is binding on all other courts and authorities and has the force of law. In practice, it is also possible for the court to recognize the norm as unconstitutional but to permit its continued validity until a new regulation is enacted, if this appears necessary to protect important interests.
How does abstract judicial review differ from concrete judicial review?
Abstract judicial review must be distinguished from concrete judicial review (Art. 100 GG, § 80 BVerfGG) with regard to the point of reference, objective, and circle of participants. In abstract judicial review, a state organ may review the compatibility of a norm with the Basic Law independently of a specific legal dispute, whereas concrete judicial review takes place in judicial proceedings where a court has doubts about the constitutionality of a statute. The eligible applicant in concrete proceedings is the respective court, not the parties to the proceedings themselves. In contrast, no specific legal case is required for abstract judicial review, enabling a preventive assurance of constitutional order.
Is suspension of the enforcement of the law possible pending a decision in abstract judicial review proceedings?
There is generally no automatic suspension of the application of a challenged norm during the course of abstract judicial review proceedings, as formally enacted laws are initially considered valid. However, pursuant to § 32 BVerfGG, the Federal Constitutional Court may, upon application by the parties or ex officio, take interim measures, such as suspending the application of a norm if this is urgently required to prevent serious disadvantages, avert imminent violence, or for another important reason in the public interest. However, such interim measures are ordered only very restrictively, as they can significantly affect the implementation of the law.
Can norms of European law also be subject to judicial review proceedings?
Norms of European law cannot be the direct subject of abstract judicial review before the Federal Constitutional Court, as the Court is only empowered to review domestic laws in relation to the Basic Law. Directly applicable Union law is outside the Federal Constitutional Court’s immediate scope of review. However, national implementing law that is in conformity with European law may be subject to abstract review if it contains independent national provisions or if the national law deviates from the EU directive. In this respect, the Federal Constitutional Court also reviews the compatibility of national implementing acts with the Basic Law.
