Definition and Status of Federal Constitutional Court Judges
A Federal Constitutional Court judge is a member of the Federal Constitutional Court, the highest German constitutional body for constitutional jurisdiction. The Federal Constitutional Court judges perform central tasks in safeguarding the Basic Law for the Federal Republic of Germany. They oversee its observance and decide on constitutional disputes of fundamental importance to the state community.
According to Art. 93 Basic Law and the Federal Constitutional Court Act (BVerfGG), the Federal Constitutional Court consists of two senates, each with eight judges. There are thus a total of 16 Federal Constitutional Court judges.
Legal Basis
Constitutional Foundations
The key provisions regarding the composition, election, and status of the Federal Constitutional Court judges are found in the Basic Law (especially Articles 93 to 94) as well as in the Federal Constitutional Court Act (BVerfGG).
- Article 94(1) Basic Law: The Federal Constitutional Court consists of judges who are each half elected by the Bundestag and the Bundesrat.
- Article 94(2) Basic Law: Further details are determined by the BVerfGG.
Ordinary Statutory Provisions
The BVerfGG specifies the fundamental requirements of the Basic Law on appointment, exercise of office, rights, duties, independence, and other aspects of the judges at the Federal Constitutional Court.
Election, Appointment and Term of Office
Election Procedure
The election of the Federal Constitutional Court judges is carried out pursuant to §§ 5 et seq. BVerfGG, half each by the Bundestag and the Bundesrat. The Bundestag elects the judges by a two-thirds majority upon nomination by an electoral committee. A two-thirds majority of votes is also required in the Bundesrat.
This procedure ensures broad parliamentary legitimacy and serves to guarantee a cross-partisan selection. The election is considered completed when both the Bundestag and the Bundesrat have elected their respective half of the judges.
Appointment
After a successful election, the Federal Constitutional Court judges are appointed by the Federal President in accordance with § 10 BVerfGG. After the appointment, they take the oath prescribed in § 10 para. 2 BVerfGG before the Federal President.
Term of Office and Age Limits
The term of office of the Federal Constitutional Court judges is twelve years, re-election is excluded (§ 4 para. 1 BVerfGG). It ends at the latest upon reaching the age limit of 68 years.
Requirements and Qualifications
Personal and Professional Requirements
According to § 3 BVerfGG, the number of Federal Constitutional Court judges is 16 persons. At least three judges of each senate must come from the group of judges of the highest federal courts. In addition, the following are eligible for the office:
- Completion of the 40th year of life
- Qualification for judicial office according to the German Judiciary Act (DRiG)
- Eligibility for election to the Bundestag
Incompatibility Rules
To ensure independence and neutrality, a comprehensive incompatibility requirement applies (§ 3 para. 3 BVerfGG):
- During their term of office, no other salaried office may be exercised.
- Membership in parliamentary assemblies is not permitted.
- Any activities incompatible with the judicial office or that could impair independence are also excluded.
Legal Status and Independence
Independence of Federal Constitutional Court Judges
Federal Constitutional Court judges are independent and subject only to the law, as provided in Art. 97 Basic Law as well as §§ 1 and 2 BVerfGG. They are not subject to instructions and are bound exclusively to the constitutional order.
Service Law and Supervision
Service law is governed independently by the BVerfGG. Supervisory authority is exercised by the President of the court, limited to organizational and administrative matters. Substantive instructions regarding judicial decision-making are not permitted.
Duty of Confidentiality
Federal Constitutional Court judges are subject to a strict duty of confidentiality regarding the deliberations and votes in the senate (§ 30 BVerfGG). This serves to protect the independence and confidentiality of the decision-making process.
Areas of Responsibility and Jurisdiction
Participation in Decisions
The Federal Constitutional Court judges decide in senates or chambers on the cases and proceedings assigned to them under Art. 93 Basic Law and BVerfGG, in particular
- constitutional complaints
- disputes between constitutional organs
- judicial review proceedings
- federal-state disputes
- election review complaints
- party ban proceedings
Every decision of the court is issued in the name of the people.
Participation in Chambers
Chambers consist of three judges from a senate and decide on particularly structured constitutional complaints and urgent applications of limited scope and significance (§ 93 BVerfGG).
Immunity and Disciplinary Law
Immunity
Federal Constitutional Court judges enjoy immunity during their term of office, corresponding to the provisions applicable to members of the Bundestag (Art. 46 Basic Law in conjunction with § 18 BVerfGG). Criminal prosecution, deprivation of liberty, or other restrictions require the consent of the court.
Disciplinary Measures and Removal from Office
Removal from office is possible in accordance with § 12 BVerfGG if the court determines that a judge has culpably violated his or her official duties or is guilty of a dishonorable act.
End of Office and Succession
Termination of Judicial Office
The office of Federal Constitutional Court judge ends by
- expiration of the term of office or reaching the age limit
- Tod
- resignation
- removal from office by the court
Succession Rule
For succeeding judges, an analogous election procedure applies. Until the position is refilled, the office remains vacant.
Significance and Impact of Federal Constitutional Court Judges
Significance for Jurisprudence and the State Structure
Federal Constitutional Court judges are responsible to a significant extent for ensuring the constitutional guarantee and the protection of fundamental rights in the German legal system. Their decisions have binding effect on all state organs (§ 31 BVerfGG) and strongly influence the legal development in the Federal Republic of Germany.
Public Reputation and Oversight
Because of their outstanding importance and independence, the Federal Constitutional Court judges are under particular public scrutiny. However, they are only bound by the law and their conscience in the exercise of their office.
Literature and Further Regulations
- Basic Law for the Federal Republic of Germany (GG)
- Federal Constitutional Court Act (BVerfGG)
- German Judiciary Act (DRiG)
- Publications of the Federal Constitutional Court
Conclusion
Federal Constitutional Court judges form the backbone of constitutional review in Germany. Their comprehensive independence, specific rights and duties, as well as the high requirements for election and selection, ensure the neutrality and quality of constitutional jurisprudence and thus the stability of the constitutional order of the Federal Republic of Germany.
Frequently Asked Questions
How are the Federal Constitutional Court judges elected?
The election of Federal Constitutional Court judges is regulated in the Basic Law, in particular Article 94, and in the Federal Constitutional Court Act (BVerfGG). The court comprises two senates with eight judges each. Half of the judges of a senate are elected by the German Bundestag, the other half by the Bundesrat. A two-thirds majority of the votes cast is required for election, which makes negotiations and consensus between factions necessary. Since 2015, the election in the Bundestag takes place by secret ballot in the plenary, previously an electoral committee determined the result. In the Bundesrat, the election is conducted in a secret session. The Federal Constitutional Court judges must be at least 40 years old and qualified for the highest judicial office; they must also not have already belonged to the court. After the election, they are appointed by the Federal President and take an oath before the start of their official duties.
What is the term of office for Federal Constitutional Court judges and are there possibilities for re-election?
The term of office of Federal Constitutional Court judges is twelve years according to § 4 para. 1 BVerfGG. An extension of the term of office or re-election of the judges is expressly excluded, to safeguard independence and prevent the consolidation of power. The term of office ends prematurely if the judge reaches the age of 68, resigns from office, dies, or becomes incapacitated. If a judge leaves office before the regular end of the term, a successor is elected for the remainder of the term.
What independence do Federal Constitutional Court judges enjoy during the exercise of their office?
Federal Constitutional Court judges are independent in their judicial activities throughout their entire term of office and are bound by no instructions, as stipulated in Article 97 Basic Law. Their judicial independence encompasses personal, substantive, and institutional aspects. Personal independence means they have legal and factual safeguards against dismissal and transfer. Substantive independence means freedom to decide only according to law and justice; external influences—particularly political—must be excluded. In addition, they enjoy judicial immunity, meaning they can be prosecuted criminally only with the court’s consent.
What qualifications must Federal Constitutional Court judges have?
The legal requirements for the office of a Federal Constitutional Court judge are set out in Art. 94 Basic Law and § 3 BVerfGG. In particular, qualification for judicial office according to the German Judiciary Act is required, i.e., a completed legal education with both state examinations. At least three of the eight judges of each senate must be from the highest federal courts (e.g., Federal Court of Justice, Federal Labor Court). The minimum age is 40 years, the candidate must be a German citizen, and must guarantee at all times to support the liberal democratic basic order.
How is the procedure regulated in the event of the premature departure of a Federal Constitutional Court judge?
If a Federal Constitutional Court judge leaves office before the expiry of the regular term, a successor must be elected without delay by the responsible electoral body (Bundestag or Bundesrat). The same legal provisions apply to the by-election as to the initial election. The successor takes office immediately after appointment and remains in office for the rest of the original term of the predecessor, and extension or re-election is also excluded in this case. In the meantime, the court remains able to act as long as at least six judges per senate are present.
What official duties and disciplinary measures are Federal Constitutional Court judges subject to?
Federal Constitutional Court judges are required to maintain secrecy about deliberations and are subject to general official duties, as far as these are compatible with their judicial independence (§ 9 BVerfGG). Disciplinary authority is exercised exclusively by the Federal Constitutional Court in its full composition. In the event of breaches of official duties, the court may, depending on the severity, decide on measures ranging from admonition to removal from office, with the procedure and sanctions detailed in §§ 9–12 BVerfGG. External control, such as by the Federal Ministry of Justice, is excluded to strictly preserve judicial independence.
What legal remedies are available against measures taken against Federal Constitutional Court judges?
Federal Constitutional Court judges enjoy judicial legal protection concerning their own rights from the service relationship. Disputes, for example, regarding service-related decisions or disciplinary measures, must be resolved internally before the plenum of the Federal Constitutional Court, if necessary in specially regulated panels. Recourse to other courts is generally excluded in order to prevent external determination by the ordinary judiciary and thus a limitation of independence.
