Germany

The German Empire ended with World War I. The Weimar Constitution of 1919 maintained the bicameralism of past constitutions, but the post-war economic and political instability left the republic fragile. After the Reichstag fire in 1933, Hitler and the National Socialists gained unrestricted legislative power, leading to the rise of a legalistic totalitarian regime. The Nazis operated what jurist Ernst Fraenkel called a dual state: one part, the normative state, followed fixed rules; the other, the prerogative state, exercised arbitrary, unchecked power. Between 1933 and 1945, the German judiciary sentenced over 80,000 people to death in the Nazi-established People’s Courts, many for crimes of treason and other political offenses.

In the aftermath of World War II, the Allies occupied Germany and attempted to denazify the German legal system. They brought back jurists who had been persecuted by the Nazi government, ordered retrials of certain cases, and exercised direct jurisdiction over the Nürnberg Trials to hold Nazi leaders accountable for atrocities during World War II. In 1949, as the Cold War took hold, Germany split into East and West, and elements of the de-Nazification process were disrupted. Lustration was never completed and some former Nazis gradually returned to the bench.

In 1949, West Germany passed its Grundgesetz, or Basic Law, intended as a provisional framework for the organization of the state. The Basic Law serves as Germany’s constitution, setting forth fundamental rights, the federalist structure of the state, and the organization of the judiciary. Though intended to be an interim measure and never ratified by popular vote, the Basic Law continues to order Germany’s economic, social, and political regimes. Since it was promulgated, it has been amended 60 times, including to address the reunification of East and West Germany.

Legal System

Germany is a federal parliamentary republic with 16 states and a civil law system. The bicameral parliament consists of the Bundestag, a nationally representative legislative body, and the Bundesrat, composed of members of state governments. The Bundestag submits federal law to the Bundesrat for ratification. The executive branch includes a largely ceremonial President and the Chancellor, who heads the government.

The Judiciary

Although a federal system with 16 states, Germany does not have distinct federal and state judicial systems. German first instance courts are state courts; the higher-level courts are federal courts. State and federal courts in Germany apply the same procedural law and, for the most part, the same substantive law.

Both the state and federal judiciaries have five branches and each branch operates as distinct court systems: the Ordinary Courts and four specialized courts: Administrative, Finance (tax), Labor, and Social Courts. Each branch has its own (federal) apex court. The Federal Constitutional Court sits separate and above these five court branches. It does not hear appeals from the state and federal courts. Each German state has its own constitution and its own constitutional court which is administratively independent from the Federal Constitutional Court.

Ordinary Courts

The Ordinary Courts hear all criminal and most civil cases. They are divided into four tiers.

The first three tiers are state courts:

Local or Municipal Courts (Amtsgerichte):

The local courts have jurisdiction over criminal offenses subject to fewer than four years of incarceration and civil cases where the amount in controversy is €5,000 or less. They also hear most family law cases.

Regional or District Trial Courts (Landgerichte):

The regional courts hear appeals from the local courts and are first instance courts for more serious criminal cases and civil cases involving higher sums of money. Cases are heard by divisions (chambers) of three judges each that are assigned either civil or criminal matters. Some regional courts may have a specialized chamber for commercial disputes. Cases in the commercial chambers are heard by a judge and lay judges with a background in commercial matters.

Higher Regional or Appellate Courts (Oberlandesgerichte):

The higher regional courts hear appeals from both the local and regional courts.

Federal Court of Justice (Bundesgerichtshof):

The apex court for the Ordinary Courts is the Federal Court of Justice, or Bundesgerichtshof. It hears criminal and civil appeals from the Regional and Higher Regional Courts. The Federal Court of Justice has over 150 judges who hear cases in panels of five. At the start of each business year, the court's Presiding Committee – composed of the Federal Court of Justice President and ten judges elected by their peers – organizes 12 civil law panels and five criminal law panels. Each civil law panel oversees one or more types of disputes, such as construction law or bankruptcy. The criminal law panels generally hear appeals from certain geographic regions, though three of the five panels also hear particular kinds of cases, such as crimes against the state.

The Bundesgerichtshof only reviews lower court decisions for errors of law and is bound by lower courts’ fact-finding. The only exceptions are direct appeals taken from patent cases. Although Germany is a civil law country, Bundesgerichtshof rulings operate as de facto binding precedents. There are approximately 40 lawyers in the Federal Court of Justice bar; no other attorney can bring a civil appeal before this court.

Commercial Courts

Germany’s Ordinary Court system recently created commercial chambers. The Frankfurt am Main’s Chamber for International Commercial Disputes, the first commercial chamber, opened in 2018 within the Frankfurt district court. Hearings before this court are mostly held in public, before three-judge panels. The presiding judge is an experienced district judge with lifetime appointment. The other two judges are businesspeople appointed by the Chamber of Industry and Commerce for five-year terms. Litigants may opt to file cases in the commercial chamber in lieu of a private arbitration tribunal. District courts in several other cities across Germany have also introduced commercial chambers.

Specialized Courts

Germany’s specialized court systems - the Administrative, Finance, Labor, and Social Courts – are structured similarly to the Ordinary Courts: their first instance and intermediate appellate courts are administered by the states, while the apex courts are federal. For example, the Labor Court is comprised of over 100 state-level first instance and 18 appellate courts and the Federal Labor Court serves as the court of last resort.

Judicial Administration

Germany does not have a judicial council or independent administrative office. Its Federal Ministry of Justice is responsible for overseeing the operations and personnel of the federal ordinary, administrative and financial courts. The Ministry of Labor administers the labor courts and the Ministry of Health oversees the social courts. Much of the Ministry of Justice staff responsible for judicial administration are judges seconded to work in the Ministry. Each state has its own Ministry of Justice with duties equivalent to their federal counterpart. The Federal Constitutional Court and the constitutional courts of the states are self-governing with their own administrative authority and infrastructure. Day to day operational management of the federal and state courts is handled by court presidents. This includes the judicial evaluation process and oversight of court personnel.

Judicial Selection

Germany has a career judiciary, with the initial judicial appointment usually to a first instance state court. In some states (Länder), the ministry of justice is responsible for the recruitment, selection, and promotion of judges. Other states use judicial electoral committees to oversee the judicial appointment and promotion process.

For appointment to the federal courts, except the Constitutional Court, candidates are nominated by the Ministry of Justice. The judicial chambers of the courts review the candidates and selection is made by a joint committee that includes the 16 ministers of justice of each state, plus an equal number of Bundestag members elected to the committee. This committee votes by secret ballot; only a simple majority is required.

Judges may apply for promotion to a vacancy on a higher court. Applications are reviewed by the president of their court who sends a report to the president of the court with the vacancy. A final evaluation is sent to the Ministry of Justice and, if applicable, the judicial electoral committee.

After a three-year probationary period as a reserve judge, German judges have life tenure with a mandatory retirement age of 67.

Constitutional Court

The Federal Constitutional Court’s jurisdiction is enumerated in the Basic Law and follows the Kelsen or Austrian model. Its basic function is to provide abstract constitutional review of legislation. Its judgments are binding on all German courts. The court is composed of two Senates, each with eight justices and their own court personnel. The two Senates have mutually exclusive jurisdiction: the First Senate hears constitutional complaints from citizens; the Second Senate adjudicates abstract questions of constitutional law as well as political disputes – between branches and levels of government, for example, or over contested elections, impeachments, or the constitutionality of political parties.

The President of the Constitutional Court presides over one Senate, and the Vice President over the other. Each Senate is subdivided into three-justice chambers. Justices, who must be at least 40 and under 68 years old, are limited to a single, 12-year term.

The power to elect the Court’s President alternates between the Bundestag and Bundesrat. Whichever does not elect the President is entitled to elect the Vice-President. The Bundestag and Bundesrat also each elect half of the Court’s justices. Successful candidates must receive a two-thirds majority, whether from the Bundestag’s 12-person judicial selection committee or the Bundesrat’s plenary vote. The selection process is structured to promote moderation and compromise.

Unlike other federal courts, the Constitutional Court is not subject to administrative supervision by a ministry. Based in Karlsruhe, removed from the country’s main population centers, the Constitutional Court enjoys high levels of public approval, and issues unsigned, usually unanimous opinions. It has ruled on contentious political issues like the constitutionality of political parties and expanded public spending.