School Papers

The litigation, such as rental disputes and family

The basic principle of the
German Judicial System is the one of the “Rechtsstaat” (rule of law). This
means that any action taken by an executive authority has to be based on law.
Furthermore, any decision taken by an authority can be challenged in court.

The German legal system
differs fundamentally from the Anglo-Saxon common law system, in which courts
rely mainly on precedents from prior cases (case law). In Germany judges base
their judgments on legal codes. The legal codes delineate abstract legal
principles and the judges must decide the specific cases on the basis of these
standards1.

Although there are also some
landmark decisions that had a strong impact on the German society (especially
some decisions of the Federal Constitutional Court), court decisions in Germany
in general haven’t got the same importance than the case law in the Anglo-Saxon
countries1.

The Constitution directly
invests supreme judicial power in the Constitutional Court as well as other
federal courts and the courts of each Federal State (Länder). The court system
is inquisitorial, thus judicial officers personally enter proof and testimony
into evidence, with the plaintiffs and their counsel merely assisting, although
in some courts evidence can only be tendered by plaintiffs2.

The primary legislation
concerning court organization is the Courts Constitution Act. The courts are
characterized by being specialist, regional, and hierarchically integrated at
the federal level.

The “ordinary courts” are
responsible for criminal matters, civil cases, and voluntary jurisdiction.
There are four levels.

The local courts
(Amtsgerichte) as courts of first instance are competent in civil cases –
mainly in cases with a litigation value of up to €5000. They are also competent
in matters independent of the value of litigation, such as rental disputes and
family and maintenance matters. Cases in local courts can be heard by an
individual judge3.

The regional courts (Landgerichte) as courts of first
instance are competent in civil law cases involving all disputes not assigned
to the local courts. These are usually disputes with a litigation value of more
than €5000. In principle, cases before the regional courts are also heard by an
individual judge. Difficult matters and cases of fundamental importance are,
however, decided in chambers: for example, a tribunal made up of three
professional judges. Regional courts of second instance hear cases in civil
tribunals within the regional courts. These are usually composed of three
judges, who hear appeals against the judgements of the local courts. Furthermore,
chambers for commercial matters can be established at regional courts. These
are usually responsible for disputes of first and second instance between
businesspeople/merchants. These chambers are composed of one professional judge
and two lay judges who are merchants3.

The higher regional courts (Oberlandesgerichte) are
usually courts of second instance. In civil cases, they hear appeals against
judgements of the regional courts, and appeals against judgements of the local
courts in family matters. The senates of the higher regional courts consist in
principle of three professional judges. Civil cases that present no special
difficulties and are not of fundamental importance can, however, be transferred
to individual judges3.

The highest ordinary court is the Federal Court of
Justice (Bundesgerichtshof), which is the court of last resort and deals with
appeals on points of law only. The senates of the federal high court are
composed of five professional judges.

In criminal cases, depending
on their nature, each of the first three courts can have jurisdiction, whereas
in civil proceedings it will be either the local court or the regional court.
One or two other courts may be appealed to on points of fact or law.

The German “specialized
courts” are divided into labor courts, social courts, administrative courts and
financial courts.   Labour courts essentially handle labour law
disputes arising from contractual relationships between employees and employers
(individual labour law). They also handle collective agreement disputes, e.g.
involving trade unions and employers’ associations (collective labour law), or
between an employer and a works committee. The courts of first instance are the
labour courts (as courts of the Länder). Cases are heard in chambers by one
presiding professional judge and two lay judges (one is summoned from the
employee’s area and the other from the employer’s area). Certain decisions that
are not part of the oral proceedings are taken by the presiding judge without
input from the lay judges. “Higher labour courts” (Landesarbeitsgerichte, which
are also courts of the Länder) are responsible for handling appeals and
complaints against labour court judgments. These courts also comprise one
professional judge and two lay judges (one from the employee’s area and the
other from the employer’s area). Decisions at the highest instance are taken by
the Federal Labour Court (Bundesarbeitsgericht) and its tribunals are composed
of one presiding judge, two additional professional judges and two lay judges
(one from the employee’s area and the other from the employer’s area)4.

Three different branches of the court system are
responsible for examining administrative decisions: the general administrative
courts, the social courts and the financial courts. An important characteristic
of the general administrative courts and the social and financial courts is
that they apply the principle that it is the court’s duty to satisfy itself of
the facts (Amtsermittlung). This means that the courts must investigate the
facts of the case on their own initiative (i.e. not only at the request of one
of the parties, and without being bound by the evidence presented). This is
because the material correctness of the decision of the case affects the public
interest5.

The social courts, like the administrative courts,
have three levels encompassing an appropriate division of tasks. Besides the
regional social court (Sozialgericht) as a court of first instance, there is a
higher social court (Landessozialgericht) for each of the Länder, which is an
appeal court, and the Federal Social Court (Bundessozialgericht), which acts as
the supreme court of appeal on points of law (‘Revision’). The social courts
are responsible mainly for hearing disputes in matters of social security
(pensions, accident and sickness insurance, and insurance for convalescent
care), unemployment insurance and social welfare. In the social courts,
decisions are also taken, in principle, by panels of judges. A social court is
composed of one professional judge and two lay judges. Higher social courts and
the Federal Social Court comprise three professional judges and two lay judges5.

The regional administrative courts are usually courts
of first instance. The higher administrative courts are primarily appeal
tribunals, which examine the decisions of courts of first instance from a legal
and factual point of view. With very few exceptions, the Federal Administrative
Court is an appeal court that examines points of law only. The general
administrative courts are responsible for all disputes between administrations
and private persons concerning the correct application of administrative laws
and regulations. However (in place of the administrative courts) the ordinary
courts become responsible when the case involves the participation of the
administration in the economy under civil law (acting like a private business)
and for all disputes arising from such activities. Furthermore, disputes that
are assigned by law to the ordinary courts, the social courts or to the
financial jurisdiction are exempted from general administrative jurisdiction. Decisions
of the administrative courts are taken by panels of judges. The regional
administrative courts are composed of three professional judges and two lay
judges. The higher administrative courts are usually composed of three
professional judges. The Federal Administrative Court comprises five
professional judges. However, in regional administrative courts, cases can also
be referred to an individual judge.

The financial courts consist of financial courts of
first instance and the Federal Finance Court (Bundesfinanzhof), which acts as
the supreme court of appeal on points of law. The jurisdiction of the financial
courts mainly covers disputes on public levies, taxes and customs. The
financial courts of first instance are composed of three professional judges
and two lay judges.

Separate from the five
branches of jurisdiction is the Federal Constitutional Court
(Bundesverfassungsgericht), which is the country’s supreme court. It
can rule in constitutional matters and it is known to have contributed to the
development of the Federal Republic of Germany. The difference between the
German Federal Constitutional Court and federal courts is that the
Constitutional Court can be appealed to in civil or criminal matters only if
constitutional rights have been breached, otherwise it cannot act as an
appellate body in the judged case6. The 16 judges of the
supreme court monitor adherence to and compliance with the Basic Law, they
adjudicate competence disputes between the federation and the Länder. They rule
only upon petitions and their decisions are final. The supreme court holds a
monopoly on interpretation of the constitution with regard to all German
jurisdictions. All organs of the federation are bound to uphold to the rulings
of the supreme court.

The Federal Constitutional
Court was enshrined in the German constitution adopted after World War II and
reflects lessons learned from the Nazi era (1933–1945), when the power of the
federal government was unchecked. Although there was some limited precedent for
judicial review in German constitutional history, the far-reaching jurisdiction
of the Federal Constitutional Court was influenced primarily by the model of
the Supreme Court of the United States and the Austrian Constitutional Court.

The Federal Constitutional
Court has two separate panels (senates) of 8 judges each (originally 12), and
each panel has jurisdiction over distinct areas of constitutional law. Judges
serve a single, non-renewable 12-year term. However, service may not extend
past the retirement age of 68. Half the membership is elected by the Bundesrat
(the upper house of the German legislature), the other half by a special
committee of the Bundestag (the lower house). To be elected, a judge must
secure a two-thirds majority of votes cast. This rule has generally prevented
any party or coalition from determining the court’s composition.

Among the Court’s powers of review, three basic
variants of constitutional review will be emphasized in what follows. The first
consists of the Court’s review powers vis-a?-vis the organization of the state,
that is, federal-state conflicts, conflicts between the federal government and
the La?nder, conflicts between La?nder (Bund-La?nder-Streitigkeit), and
disputes between high federal organs (Organstreit). The second is
constitutional review in the narrow sense (Normenkontrolle) Here the Court
examines the constitutionality of the law. Within this rubric one has occasion
to distinguish between abstract review and concrete review. Where abstract
review (abstrakte Normenkontrolle) is concerned, the federal government, the
government of a Land, and an aggregate of no fewer than one-third of the
members of the Bundestag are all empowered to turn to the Federal
Constitutional Court for a decision on the constitutionality of a law, quite
apart from any concrete case. Contrariwise, in concrete review (konkrete
Normenkontrolle), where a court of ordinary jurisdiction (any court other than
the Federal Constitutional Court), deciding a case, is convinced that the
applicable federal law or Land law is unconstitutional, it must refer the
constitutional question to the Federal Constitutional Court. In short, unlike
the situation in jurisdictions with decentralized constitutional review, most
prominently in the United States, no court of ordinary jurisdiction has power
to declare an applicable law invalid in a concrete case. In other words, the
practice in the Federal Republic of Germany is, today, a prominent example of
centralized constitutional review. Finally, the third basic variant is the
constitutional complaint. Any person can claim that an action of the state, a
federal law or a Land law, a decision of any court of ordinary jurisdiction or,
finally, an administrative action violates one or another of his or her basic
rights, as granted in the German Basic Law7.

When it is said that the Federal Constitutional Court
is “without a historical model”, this, if taken literally, is surely wrong.
Part and parcel of the creation of constitutional review in the Federal
Republic of Germany was its fully developed system of judicial control, and for
different parts of this system there existed different models at different
times and in different places. First of all, the question arises as to the
extent to which models can be found in Germany itself. On the one hand, very
modest beginnings of constitutional review can be found in the Court of the
Imperial Chamber (Reichskammergericht) in the Holy Roman Empire. On the other,
after the fall of the empire in the German Confederation (Deutscher Bund) after
1815, and in the North German Confederation (Norddeutscher Bund) after 1867, as
well as in the German Empire after 1871, no comparable institutions were
established. To be sure, the Frankfurt Constitution of 1848–49 could boast of a
scheme of constitutional review including constitutional complaints, disputes
between high federal organs and extended review powers for settling
federal-state conflicts, but the constitution never went into effect. In the
Weimar Republic, as noted above, only federal-state conflicts and a limited
power of constitutional review in the narrow sense by the High Federal Court
(Reichsgericht) were recognized. In Germany’s past one finds, then, numerous
elements reflected in the system of constitutional review of the Federal
Republic of Germany, such that it is not inappropriate to speak of a continuing
German tradition. Still, a complete system of review powers awaited the Federal
Constitutional Court, and in this respect, it represents a fundamentally new
development, going well beyond all that had pointed toward it in the tradition8.

1 The German
Judicial System, European Consumer Centre Germany –
https://www.evz.de/fileadmin/user_upload/eu-verbraucher/PDF_Englisch/Brochures/Legal_sytem_Germany.pdf

2 German
Judicial System –
http://saint-claire.org/wp-content/uploads/2016/01/German-Judicial-System.pdf

3 Ordinary courts, European
Justice –
https://e-justice.europa.eu/printContentPdf.do?plang=en&idTaxonomy=18&idCountry=de&member=1&action=printContentPdfMS&initExpCourtRes=1

4 Specialised courts, European Justice –
https://e-justice.europa.eu/printContentPdf.do?plang=en&idTaxonomy=19&idCountry=de&member=1&action=printContentPdfMS&initExpCourtRes=1

5 Specialised
courts, European
Justice –
https://e-justice.europa.eu/printContentPdf.do?plang=en&idTaxonomy=19&idCountry=de&member=1&action=printContentPdfMS&initExpCourtRes=1

6 A Guide to German Courts –
https://www.lawyersgermany.com/a-guide-to-german-courts

7 The Beginnings of
Germany’s Federal Constitutional Court, Martin Borowski –
http://www.direitocontemporaneo.com/wp-content/uploads/2014/02/The-Beginnings-of-Germany-s-Federal-Constitutional-Court.pdf

8 The Beginnings of
Germany’s Federal Constitutional Court, Martin Borowski –
http://www.direitocontemporaneo.com/wp-content/uploads/2014/02/The-Beginnings-of-Germany-s-Federal-Constitutional-Court.pdf