Concept and Basic Features of the Popular Lawsuit
Die Popular Lawsuit is a special legal instrument that allows any citizen to request the competent constitutional court to review a legal norm (in particular a state law) for its compatibility with the constitution—even without being personally affected. It thus constitutes an exception to the general principles of legal protection, which normally require the claimant’s own legal affectation (standing for complaint) as a prerequisite for a lawsuit.
The popular lawsuit is nowadays mainly known from the Bavarian state constitution and the Bavarian Constitutional Court. Other states within the Federal Republic of Germany do not recognize this instrument, or only in a severely limited form. Internationally, the popular lawsuit is a rare occurrence within Western legal systems.
Legal Basis of the Popular Lawsuit
Bavarian Popular Lawsuit
The popular lawsuit is regulated in Art. 98 paragraph 4 of the Constitution of the Free State of Bavaria (BV) . It basically grants all Bavarian residents, as well as natural and legal persons based in Bavaria, the right to have the constitutionality of Bavarian laws, ordinances, and statutes reviewed by the Bavarian Constitutional Court (BayVerfGH) .
Statutory Regulation
Art. 98 para. 4 BV reads in excerpt:“Any person with domicile or residence in Bavaria can request the Constitutional Court to review the constitutionality of a law, ordinance, or statute.”The details, procedures, and structure of the popular lawsuit are stipulated in the Act on the Bavarian Constitutional Court (VfGHG) .
Popular Lawsuit in Other Federal States
Other federal states do not provide for an instrument comparable to the Bavarian popular lawsuit. Although constitutional complaints also exist (e.g., in Brandenburg, Thuringia, and Schleswig-Holstein), these are generally only admissible if the complainant is affected in their own constitutional rights.
Popular Lawsuit under Federal Law
The Basic Law (GG) and the Federal Constitutional Court Act (BVerfGG) do not provide for a popular lawsuit. According to Art. 93(1) No. 4a GG or § 90 BVerfGG, a constitutional complaint before the Federal Constitutional Court always requires that the complainant himself is directly, presently, and immediately affected by the disputed law.
Requirements and Admissibility of the Popular Lawsuit
Standing and Capacity to Participate
The popular lawsuit is open to all natural and legal persons with seat or residence in Bavaria. Personal or immediate affectation by the law or legal norm is not required (so-called objective standing for action).
Subject of Review
Within the framework of the popular lawsuit, the following norms can be reviewed:
- Laws of the Bavarian Parliament (formal laws)
- Ordinances of the Bavarian state government, ministries, or authorities
- Statutes of corporations, institutions, or foundations under public law in Bavaria
Federal laws and administrative acts cannot be reviewed.
Form and Deadline
The popular lawsuit does not require any special form but should observe the regulations of the Act on the Constitutional Court (VfGHG). It must include sufficient reasoning, explaining where and why a violation of the Bavarian Constitution is assumed. There is no specific deadline, as the popular lawsuit does not depend on an individual legal injury.
Procedure for the Popular Lawsuit
Course of Proceedings
The course of a popular lawsuit before the Bavarian Constitutional Court consists of the following steps:
- Submission: The lawsuit can be submitted in writing without formal requirements.
- Reasoning: The raised concerns about constitutionality must be substantiated.
- Hearing of Parties: The Constitutional Court may hear parties, experts, or authorities.
- Decision: The Constitutional Court essentially examines whether the contested legal norm is compatible with the Bavarian Constitution and makes its decision by judgment or order.
Binding Effect of the Decision
If the proceedings find that the contested norm is not in conformity with the Bavarian Constitution, it is to be declared void. The decision produces the force of law and is binding on all courts and authorities in the Free State of Bavaria.
Legal Consequences and Significance of the Popular Lawsuit
Legal Effectiveness
The finding of unconstitutionality of a norm leads to the nullity of the relevant regulation. It may neither be applied nor executed. The decision of the Constitutional Court has inter omnes – that is, effect against everyone.
Effects on the Legal System
The popular lawsuit constitutes a unique form of judicial review of norms, as it is independent of individual complaints and relies solely on the objective legal situation. This enables broad review of state actions for constitutional conformity, regardless of specific individual cases. The popular lawsuit thus contributes to transparency, oversight, and upholding constitutionality in Bavaria.
Distinction from Other Legal Remedies
Within the German legal system, the popular lawsuit is particularly different from the following procedures:
Constitutional Complaint
In contrast to the constitutional complaint according to Art. 93 para. 1 no. 4a GG or corresponding state regulations, claimants in a popular lawsuit do not have to be directly affected in their own fundamental rights.
Abstract and Concrete Judicial Review of Norms
The abstract judicial review of norms according to Art. 93 para. 1 no. 2 GG or §§ 76 et seq. BVerfGG is reserved exclusively for certain bodies (e.g., the Federal Government, a state government, or one quarter of the members of the Bundestag). In the case of the concrete judicial review of norms, constitutionality may be reviewed within the context of an ongoing judicial procedure, upon referral by the deciding court.
The popular lawsuit is special in this respect as it grants private or natural persons direct access to constitutional jurisdiction for judicial review of norms.
Criticism and Reform Considerations
Assessment of the Popular Lawsuit
Supporters appreciate the popular lawsuit as an instrument for citizen participation and democratic oversight. It provides a broad and low-threshold opportunity to bring constitutional issues before a court for review.
Critics, on the other hand, fear an overburdening of the court with unfounded or abusive lawsuits (also known as the “everyman right”), which could impair the effectiveness and efficiency of justice.
Debates on Reform
There are occasional discussions about extending the popular lawsuit to other federal states or to the federal level—but so far without concrete implementation. The advantages regarding democratic control and the disadvantages regarding procedural burden must be balanced here.
Popular Lawsuit in International Comparison
Internationally, comparable instruments are rare. In a few countries, similarly structured instruments for judicial review of norms without individual affectation exist; however, review procedures are usually linked to the participation or affectation of individuals or institutions.
Summary and References
The popular lawsuit is a special element of Bavarian constitutional law and allows anyone with residence or seat in Bavaria to have laws, ordinances, and statutes reviewed for compatibility with the Bavarian Constitution. It is characterized by its low threshold, wide accessibility, and objective legal review, and has great significance for transparency and oversight in Bavarian law.Literature and Legal References:
- Constitution of the Free State of Bavaria (especially Art. 98 BV)
- Act on the Bavarian Constitutional Court (VfGHG)
- Selected decisions of the Bavarian Constitutional Court
- Commentary literature on Bavarian state constitutional law
Keywords: Popular lawsuit, Bavarian Constitutional Court, judicial review of norms, state constitution, Bavarian law, legal remedy, constitutional jurisdiction, rights, legal remedies
Frequently Asked Questions
Who is entitled to bring a popular lawsuit?
In Bavaria, the popular lawsuit can be brought by anyone, regardless of their own direct affectation. Unlike other constitutional complaint procedures, it is not necessary for the complainant to be violated in their own rights or to demonstrate a special personal interest. Both natural and legal persons, whether domiciled in Germany or abroad, can file a popular lawsuit at the Bavarian Constitutional Court. Thus, the process serves as a means of objective judicial review, exercised in the interest of the general public.
Against which legal norms can the popular lawsuit be brought?
The popular lawsuit is directed exclusively against legal provisions of state law in Bavaria, which include laws, ordinances, and statutes. Norms that have already entered into force as well as those only promulgated, but not yet applied, may be challenged. It is not possible to challenge individual acts or norms of federal law or those of other German states; the jurisdiction of the Bavarian Constitutional Court is strictly limited in this regard.
Which constitutional rights can be asserted by means of the popular lawsuit?
With the popular lawsuit, only violations of fundamental rights and civil rights that are expressly guaranteed in the Bavarian Constitution can be asserted. These include, among others, the principle of equality, freedom of opinion, freedom of religion, and other specific freedom and participation rights under the Bavarian Constitution. Violations of other provisions, such as ordinary statutory law or fundamental rights from the Basic Law, are not the subject of the popular lawsuit.
How is the procedure for the popular lawsuit structured?
The procedure begins with a written application to the Bavarian Constitutional Court. This must clearly explain against which norm and which alleged violation of fundamental rights from the Bavarian Constitution the lawsuit is directed. The Constitutional Court examines the admissibility and merits of the lawsuit. The hearing is generally oral, but may also be conducted in writing. Parties have the opportunity to comment, and the Constitutional Court may also hear other authorities or experts. The decision is made by judgment.
What are the effects of a successful popular lawsuit?
If the Bavarian Constitutional Court finds that a challenged norm violates fundamental rights or civil rights of the Bavarian Constitution, it declares it void. The legal norm loses its validity with the publication of the judgment. Retroactive invalidity is generally excluded unless the court expressly determines otherwise. The decision is binding on all state authorities in Bavaria, but is limited to Bavarian state law and its scope of application.
Are there deadlines for bringing the popular lawsuit?
Unlike other constitutional complaints, the popular lawsuit in Bavaria is generally not subject to any deadlines. This means that review by popular lawsuit is possible even years after a norm has entered into force. An exception applies only if the relevant legal provision has been repealed or replaced by a new norm in the meantime, whereby the interest in legal protection may cease.
Are there costs associated with the popular lawsuit?
Proceedings before the Bavarian Constitutional Court are generally free of court fees for the applicant. However, there is a risk of costs in relation to expenses, e.g., for involving lawyers or experts. In the case of manifestly abusive use of the popular lawsuit, the court may impose costs on the applicant. There is no entitlement to reimbursement of costs for the prevailing party.
