What's against the law

Faculty of Law

A. Admissibility of a constitutional complaint against a LAW

I. Responsibility of the BVerfG according to Article 93 I No. 4a GG, §§ 13 No. 8a, 90 ff
"The Federal Constitutional Court is responsible for constitutional complaints according to Art. 93 I No. 4a GG, §§ 13 No. 8a, 90ff BVerfGG."

II. Ability to lodge a complaint according to § 90 I BVerfGG
= Ability to have fundamental rights, i.e. the ability to bear fundamental rights; "Everyone" within the meaning of § 90 BVerfGG

III. Process capability
= Ability to undertake process actions yourself or through self-determined authorized agents; in principle not to be checked, only in the case of legal persons and not fully competent

IV. Subject of the complaint according to § 90 I BVerfGG
= every act of public violence

V. Authority to lodge a complaint according to § 90 I BVerfGG

1. Possibility of violating fundamental rights
= Injury must not be excluded from the outset

2nd complaint

a. self
= in person, so that the popular complaint is excluded

b. currently
= already or still affected

c. right away
= absent if the act itself does not interfere with the complainant's fundamental rights, but only another act of implementation

VI. Proper application according to §§ 23 I, 93 BVerfGG

1. Deadline according to § 93 I 1, III BVerfGG
= within one year in the case of laws

2. Form according to § 23 I BVerfGG
= in writing and with justification

VII. Need for legal protection

1. Exhaustion of legal routes
The constitutional complaint is only the last resort, but in the case of unconstitutional laws there is basically no legal recourse

2. Subsidiarity
= in addition to exhausting the legal process, all other options must be exhausted in order to resolve the complaint; but this requires more detailed information on the facts, a complaint is unlikely to fail here

B. Substance of a constitutional complaint

The constitutional complaint is well-founded if the law actually violates one of the complainant's fundamental rights. A fundamental right is violated if the behavior in which the complainant sees himself prevented by the law falls within the scope of protection of a fundamental right, the law encroaches on this fundamental right and this interference cannot be constitutionally justified.

I. Scope of protection

1. Personal protection area
= natural persons (attention: some basic rights are reserved for Germans within the meaning of Art. 116 GG); legal persons according to Art. 19 III GG

2. Material scope of protection
objective area of ​​protection as the material and life area to which the basic right relates

II. Intervention
Classic formula: every government action that has a final, immediate, legal and coercive effect

"Modern" term of intervention: every state measure with which behavior that falls within the scope of protection of a fundamental right is made difficult or impossible (in the case of merely indirect, unintentional or non-legal impairments, however, a certain significance threshold must be reached)

III. Constitutional justification of the interference

1. Reservation of barriers
Here it must be examined whether the Basic Law makes special requirements for a law that restricts the fundamental right and whether the challenged law meets these requirements

·simple legal reservation: if intervention by or due to a law is possible

·qualified legal reservation: The Act of Intervention must meet additional, specific requirements

·constitutional barriers: Basic right itself does not provide for any possibility of intervention, but due to conflicting basic rights of third parties or other constitutional values, a restriction must be possible for their purpose; By means of “practical concordance”, a fair balance must then be established between the fundamental right in question and the conflicting fundamental right or the constitutional value, ie. It is necessary to weigh up, taking into account the principle of proportionality

Note: Basically, it is about a law in the material sense (any general-abstract regulation with external effect), not a law in the formal sense (the latter are only parliamentary laws); according to the materiality theory of the BVerfG, however, essential specifications must be made by the parliament itself and not, for example, by the legislator.

2. Formal constitutionality

The restrictive law must have been constitutionally created (in accordance with the rules of state organization law)

3. Material constitutionality

a. Proportionality

aa. legitimate purpose
= according to the legal reservation, in the case of constitutional barriers only those that protect the competing constitutional good

bb. Suitability
= if the desired goal is achieved with the help of the state measure or the goal achievement is promoted ("step in the right direction")

cc. Necessity
= exists if the legislature could not have chosen another, equally effective, but not or less restrictive means of the fundamental right (aims at a comparison with other means)

dd. appropriateness
= a measure must not lead to a disadvantage that is clearly disproportionate to the desired success (comparison between the importance and weight of the purpose of the encroachment on the one hand and the intensity of the encroachment on fundamental rights and the importance of the fundamental right in question on the other)

Annotation:The following examination points are only to be checked if there are indications in the facts that they could have been violated

b. Determination requirement, Art. 20 III GG
= the law must be sufficiently clear and specific in terms of the facts and legal consequences; The decisive factor is whether a sufficiently clear content of the standard can be determined with the help of the usual interpretation methods (determinability)

c. Essence, Art. 19 II GG
= no fundamental right may be touched in its essence, str. what that means exactly

d. Quotation requirement, Art. 19 I 2 GG
= does not apply to fundamental rights for which the legal reservation is absent or is not formulated in accordance with Art. 19 I 2 GG; also if pre-constitutional restrictions on fundamental rights are adopted exactly or only slightly changed

e. Prohibition of the individual law, Art. 19 I 1 GG
= Laws must apply in general; if initially only a single case is affected by a law, this does not necessarily do any harm if the regulation is based on an objective reason