Contribution of Federal Constitutional Court, Germany: Study on the ways the Federal Constitutional Court cites decisions of foreign constitutional courts in its case-law (especially in decisions) (ABSz, 2022. Különszám, 45-49. o.)

This study on how decisions of foreign courts are cited in the decisions of the Federal Constitutional Court (hereinafter: FCC) begins with short introductory remarks on the work process of the FCC (I.). It then provides detailed information on how the FCC references decisions of other constitutional courts (II.). Finally, the study will conclude with some summarising remarks (III.). An article by the then President of the FCC Andreas Voßkuhle that was published in 2019 provides further information in German and includes further references.[1]

I. Introductory remarks

All proceedings begin with a written application lodged with the FCC. Which of the two Senates is competent to decide the case generally depends on the type of proceedings. In the case of abstract and specific judicial review proceedings and constitutional complaints, it follows from the relevant area of law and from the provisions of the Basic Law that are claimed to have been violated. In accordance with the FCC's internal allocation of competences, one Justice will take on the role of Reporting Justice. The Reporting Justice drafts a detailed preparatory report in which they set out the case, analyse it from a legal perspective and propose a conclusion. The legal analysis generally considers the case-law of the European Court of Human Rights (hereinafter: ECtHR), the Court of Justice of the European Union (hereinafter: CJEU) and other constitutional courts. Normally, the Reporting Justice is assisted by their judicial clerks. The Senates deliberate on every decision extensively and in camera. The deliberations draw on the Reporting Justice‘s report and proposed conclusion. For various reasons, considerations of comparative law are not always expressly reflected in the reasoning of the decision. Thus, it would be wrong to determine the significance of such considerations solely on the basis of actual references made within the decisions of the FCC.[2]

II. The ways the Federal Constitutional Court cites decisions of foreign constitutional courts

The FCC primarily references the case-law of the ECtHR and CJEU. While these decisions are usually not binding on the FCC, they serve as guidelines for the application and interpretation of fundamental rights. However, there are some decisions in which the FCC expressly referenced decisions of other constitutional courts. In order to illustrate how this is done in practice, the following section includes examples and quotations from past decisions. Where possible, the quotations are given in English.

The Lüth case[3] is one of the FCC's landmark decisions on freedom of expression. In this decision, the FCC held that fundamental rights are not only defensive rights of individuals against state interference, but also apply to relationships between private actors. The FCC particularly emphasised the importance of freedom of expression in a democratic state. In this context, the FCC referred to the 1789 Declaration of the Rights of Man and the Citizen and to the opinion of Supreme Court Justice Cardozo in the 1937 case Palko v. Conneticut[4]. The FCC stated that freedom of expression was "the matrix, the indispensable condition of nearly every other form of freedom (Cardozo)"[5]. It is worth noting that the FCC gave the quotation in its original English version and gave the name of Justice Cardozo, but not the case reference, in brackets. The FCC held that, in view of its special importance, the material scope of this fundamental right in particular may not be restricted on the basis of ordinary law and court decisions.

In the 1966 Spiegel decision[6] and a 1970 decision concerning conscientious objection,[7] the FCC mentioned aspects of comparative law but did not elaborate on them in detail. In a 1971 decision concerning the authorisation to enter and inspect workplaces, the FCC referenced the case-law of other courts with respect to the interpretation of the word "Wohnung" (dwelling). The FCC found that a broad interpretation

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of the concept of dwelling was predominant in other countries that had provisions with the same or similar wording. The relevant passage reads as follows:

"Ein Blick auf ausländische Regelungen zeigt, daß bei gleicher oder annähernd gleicher Fassung der Gesetzestexte die weite Auslegung des Wohnungsbegriffs vorherrscht (vgl. etwa für die Schweiz BGE 81 I, S. 119 ff.; für Österreich die Entscheidung des Verfassungsgerichtshofs vom 22. November 1932 Nr. 1486, vom 14. März 1949 Nr. 1747, vom 2. Juli 1955 Nr. 2867 und vom 16. Dezember 1965 Nr. 5182, sowie Ermacora, Handbuch der Grundfreiheiten und der Menschenrechte, 1963, S. 241; für Italien: Enciclopedia del Diritto XIII [1964], S. 859 ff. und Faso, La Libertà di Domicilio, 1968, S. 34 ff.; für die USA die Dissenting opinion von Justice Frankfurter zur Entscheidung Davis v. United States vom 10. Juni 1946 - 328 US 582, 596 f. - und die Entscheidung See v. City of Seattle vom 5. Juni 1967 - 387 US 541 -)."[8]

The FCC's decision in the Fraport case concerned the complainant's freedom of assembly at the Frankfurt International Airport. In this case, one of the main issues was whether the owner of the airport was to be considered a private or public actor and whether the airport was a public space. The FCC referenced decisions of the Canadian Supreme Court and the US Supreme Court in the context of the concept of public forum and proportionality considerations. The relevant passages of the Fraport decision read as follows:

"Otherwise, the question of whether such a place that is located outside public streets and places can be deemed a public space for communication can be answered according to the concept of the public forum (for examples of the use of similar criteria, see Supreme Court of Canada, Committee for the Commonwealth of Canada v. Canada, <1991> 1 S. C. R. 139; Supreme Court of the United States, International Society for Krishna Consciousness <ISKCON> v. Lee, 505 U.S. 672 <1992>). A public forum is characterised by the fact that it can be used to pursue a variety of different activities and concerns leading to the development of a varied and open communications network. Public forums must be distinguished from locations which due to external circumstances are only available to the general public for specific purposes and which are designed accordingly. If in actual fact a place serves only or mainly one purpose, individuals may not request that they be allowed to conduct assemblies there pursuant to Article 8.1 of the Basic Law - except where they have private rights of use in respect of such place. This is different, however, in places where the combination of shops, service providers, restaurants and recreational areas provide an opportunity for strolling and thus result in the creation of a place for people to spend time and meet. If space is made available in this way for the coexistence of different uses, including communicative uses, and becomes a public forum, it is not possible according to Article 8.1 GG to exclude from it political debate in the form of collective expressions of opinion through assemblies. Article 8.1 GG guarantees citizens in respect of the traffic areas of such facilities the right to confront the public with political debate, social conflicts or other topics. It is the aim of freedom of assembly to provide individuals with such opportunities to attract attention since they are the basis for the democratic formation of will and are a constitutive element of the democratic governmental order."[9]