Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

Germany: Quota of Lawyers Suggested for Appointment of Justices to Federal Constitutional Court

(Dec. 5, 2016) In November 2016, the Federal Bar Association (Bundesrechtsanwaltskammer, BRAK) and the German Lawyers’ Association (Deutscher Anwaltverein, DAV) proposed a mandatory lawyers’ quota for the appointment of justices to the Federal Constitutional Court. They suggested that at least one of the justices in each of the two chambers should be an attorney who has been practicing law for at least five years.  (Press Release, Bundesrechtsanwaltskammer, Gemeinsame Presseerklärung von BRAK (Nr. 14) und DAV (Nr. 31) v. 02.11.2016. Anwältinnen und Anwälte auf die Richterbank des Bundesverfassungsgerichts [Joint Press Release of BRAK (No. 14) and DAV (No. 31) of Nov. 2, 2016. Appointment of Lawyers to the Bench of the Federal Constitutional Court] (Nov. 2, 2016), BRAK website.)

The president of the German Lawyers’ Association, Ulrich Schellenberg, justified the proposal by pointing to the fact that even though “attorney” is the most common legal profession, only three of the justices selected for the Federal Constitutional Court between 1967 and 2005 have been practicing lawyers and there have been no new appointments of lawyers since 2005. (Id.)  The proposal criticizes the fact that open positions are “as a general rule filled with law professors.”  It states that lawyers are particularly well qualified to serve as justices at the Federal Constitutional Court, because they are the ones who “experience the law in practice every day.”  (Id.)

Background

The German Federal Constitutional Court is one of six supreme courts and is exclusively in charge of constitutional questions. It is composed of two chambers, called senates, with each senate consisting of eight justices.  Each justice serves for a term of 12 years.  (Law on the Federal Constitutional Court, Aug. 11, 1993, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1473, as amended through Aug. 2015, §§ 2, 4.)

The German Basic Law, the country’s constitution, provides that the Federal Constitutional Court must consist of federal judges and other members. (Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation), art. 59, ¶ 2.)  The Law on the Federal Constitutional Court reiterates this requirement and states that three positions in each senate are reserved for judges who have previously served on a German supreme federal court for at least three years. (Law on the Federal Constitutional Court, § 2 ¶ 3.)  The other members need to fulfill the general requirements, but there is no quota.  In general, a candidate must be at least 40 years of age, be eligible for election to the Bundestag (parliament), and have stated in writing that he or she is willing to become a member of the Federal Constitutional Court.  (Id. § 3.)  Furthermore, each justice must have completed a legal education that qualifies him or her for judicial office pursuant to the German Judiciary Act. (Id.; Deutsches Richtergesetz [German Judiciary Act], Apr. 19, 1972, BGBl. I at 713, as amended.)