The Rule of the Courts

Jörn Axel Kämmerer

ruleset. While the former Art. 93 BL has become Art. 94, the new Art. 93 BL provides for the following: • The Federal Constitutional Court shall be autonomous and independent of all other constitutional organs (Art. 93 (1) BL). This is exactly what has been set out in § 1 (1) LFCCt, which remains in force. The same applies to § 1 (3) LFCCt, according to which the plenary of the Court shall establish its rules of procedure, which is now echoed by Art. 93 (4) BL. Its constitutionalisation will effectively prevent the legislator from interfering with the decision-making of the Court, as it happened, for instance, years ago in Poland. 14 • The Court is divided into two Senates, each composed of eight Justices (Art. 93 (1, 2) BL, which parallels § 2 (1, 2) LFCCt). This implies that the legislator can neither increase the number of Senates nor the number of Justices in a Senate by means of ordinary legislation in an attempt to achieve more favourable decisions. 15 • Other provisions shall ensure smooth succession, continuity and renewal in personal matters: ° The term of office for Constitutional Justices is 12 years, their age limit is 68 and immediate or subsequent re-election is legally impossible (Art. 93 (3) 1, 3 BL, in line with § 4 (1-3) LFCCt). If at expiry of the term – be it that twelve years have passed or that the age limit is reached –, no successor has been appointed yet, a Justice shall continue to carry out their official functions until this so happens (Art. 93 (3) 2 BL). This ensures that there are no vacant seats in the Court, and that judgments rendered with the participation of Justices whose term is officially over cannot be contested as uncons titutional. Considering how vital this is for the operability of the Court, the fact that all these standards had before been 14 Dieter Grimm, Constitutional Courts and Judicial Review , 2025, pp. 97 ff. 15 Prevention of “court packing”, cf. BT-Drs. 20/12977, 24 September 2024, p. 1, at p. 9; also cf. Aziz Huq and Tom Ginsburg, How to Lose a Constitutional Democracy , in: 65 U.C.L.A. Law Review (2018), 78, at pp. 126 and 139 ff; Christian Walter, in: Dürig/Herzog/Scholz, Grundgesetz Kommentar , 108 th ed. August 2025, Art. 93 para. 1.

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