3.3.3 The Federal Constitutional Court
In any common law legal order which relies on the principle of precedent, the highest court and its jurisprudence is given special importance for the creation of law.
Germany, as a nation which has a civil law system, does not rely on the principle of precedent. The German courts are not meant to be creating law; they are mere applicants of the law, clarifying its application. The Federal Constitutional Court is the highest court of the country. It is installed as the protector of the German constitution and its values. Individuals can claim the infringement of their constitutional rights before this court and institutions can be held accountable for the breach of the constitutional rights of individuals.
The interpretation and clarification of constitutional law is an inherent aspect of this protective process.
Box 3 Prostitution
One example pertaining to the freedom of occupation is the debate around prostitution. In 2009 the Federal Constitutional Court held that although prostitution is not to be seen as an ‘occupation like any other’, it falls under the scope of Art. 12 GG due to the way it is exercised [BVerfG, 1 BvR 224/07 vom 28. April 2009]. The Federal Constitutional Court followed its own assessment of the definition of occupation from 1958, where it held that ‘occupation’ is to be defined broadly [BVerfGE 7, 377–397 vom 11. Juni 1958]. By a statute which came into force in 2002 (Prostitutionsgesetz), prostitution is given an occupational status in Germany. The statute does not have a general application but depends on the actual circumstances of the practice of prostitution. What is highlighted here is the impact of the Court’s assessment and interpretation on the development of national law.
The Court is not the only influential entity where the development of constitutional law in Germany is concerned. Academics form another important source of influence on constitutional law. Their profession critically assesses constitutional developments by Parliament (Bundestag) and the Court (Bundesverfassungsgericht). Traditionally, comments from the main codes are published which entail scholarly assessments of the recent case law and legislation. Changes and reforms will inform a discussion about the content and meaning of certain regulations. Those assessments are finally informed by certain views, or approaches, towards the law.
The German constitution as it exists today consists of only 146 articles. Although the structure of fundamental and constitutional rights and values is set out in a way which seems transparent, more than enough room is given for statutory interpretation. The Federal Constitutional Court, therefore, is a powerful court, influencing German constitutional law.
Germany’s history explains how this relatively rigid constitution came into existence and why it looks the way it does today. Only in this historic context, can one really appreciate how important and valued this constitution is by its citizens and Europe.