Germany

As indicated by the European Commission in its 2023 Rule of Law Report, Germany has not made efforts to provide adequate resources for the justice system, including for judicial salaries. According to a 2022 survey involving 803 judges and prosecutors, 78 per cent of judges and 92 per cent of prosecutors consider the human resources available to be insufficient. The level of salaries in the judiciary, as compared to the national average salary, remains notably low. This, together with the expected retirements of around 10,000 judges by 2030, constitutes a challenge for recruitment in the judiciary, as declared by the German Association of Judges. The Constitutional Court has repeatedly delivered rulings related to the adequacy of judicial salaries.

Civil society organisations have pointed out that the lack of resources have led to an inability of personnel in German courts to handle all pending cases, which, in turn, leads to delays in the judicial process. Such delays reportedly resulted in the release of several defendants in 2022, because the maximum time limits for pre-trial detention had been exceeded.

According to the Court of Justice of the European Union (CJEU), the power of German ministers of justice to issue orders to prosecutors in individual cases enables those ministers to “to have a direct influence on a decision of a public prosecutor’s office to issue or, in some cases, not to issue a European Arrest Warrant.” The UN Human Rights Committee expressed concern in its November 2021 Concluding Observations on Germany that the independence of the prosecution services from the executive branch was not ensured in law or in practice, and called for reform.

Germany has not taken steps so far regarding the announced reform of the power of ministers of justice to give instructions to prosecutors in individual cases. The coalition agreement for the current government included the intention to carry out reform in view of the CJEU case law. No specific steps have been taken, however, and no timeline for reform has been announced. Experts have argued, though, that although the law has not been amended, it is interpreted in light of EU law. This means that the criminal justice system has adapted its practice to EU law by subjecting every European Arrest Warrant to a judge’s decision. The competence to issue European Arrest Warrants lies with the magistrate court in the case of criminal prosecution, and with the criminal courts of first instance in cases of the execution of sentences. The public prosecutors’ offices, however, are still tasked, with the preparation and execution of European Arrest Warrants.

Judges are allowed to be political party members and can be active in the democratic process. They can, in principle, be elected as members of parliament at the federal and state level, and can engage in political debate. They may not, however, simultaneously perform adjudicative and political functions. Therefore, once elected, their rights and duties as judges are suspended. The legislation establishes the right to reenter the judiciary after the expiry of a political mandate. The question is how their reinstatement could affect public confidence in the judiciary.

The reinstatement of former (extreme) right-wing members of parliament as judges has attracted considerable media attention. There have been disagreements over the interpretation of legislation governing reinstatement. Some have argued that reinstatement is a given, if they file an application, irrespective of the applicant’s behaviour as a member of parliament, because they were not required to act in moderation while holding a political mandate. Others have argued that, where a former judge has made unconstitutional statements or expressed undemocratic views, it was doubtful whether and how such a judge should be accepted back to the bench. The main challenge is to find a balance between measures against extremist judges and the need to uphold judicial independence.

Interestingly, most states foresee security checks for candidates for judicial appointments upon the explicit request of the appointing authority. In two states, standard security checks take place prior to appointments. The aim is to ensure that judges respect the principle of constitutional loyalty before their appointments. Another measure meant to tackle anti-constitutional judicial behaviour is related to the use of disciplinary measures. Removal is only allowed in exceptional cases, however, so people openly making anti-constitutional statements may stay in public service in some cases.

Germany has been behind in terms of the digitalisation of court processes. Reform initiatives, however, signal that it is a priority area for the government. According to the president of the Higher Court in Celle, Stefanie Oette, the majority of courts are positive about the need for digital transformation, but digitalisation requires considerable financial investment. She noted that a dispute between the federal government and the states over the amount the federal government should contribute to the costs does not do justice to the importance of the topic, and distracts from the actual issues.

The bar and lawyers’ associations have welcomed governmental proposals to introduce digital documentation of criminal proceedings, initially through audio and video recording. Judges’ and prosecutor’s associations have criticised the proposal, however, and particularly the use of video recordings, highlighting the impact on victims’ willingness to provide testimony and the risk of leaks. Following the mixed reactions to the proposals, in May 2023, the government presented an amended proposal, which now limits digital documentation to audio recording. The possibility to also require a video recording is left open to the states. The proposal has been submitted to the Federal Council; if adopted, the documentation would be introduced in a pilot phase as of 2026, and only fully enter into force in 2030.

Federal judicial appointments are heavily dominated by the political branches of power. Federal court judges are appointed by the Appointment Committee, composed of the competent federal minister, the competent ministers of the states, and the same number of members selected by the Bundestag. The federal minister remains bound by their constitutional duty to appoint only based on merit.

Germany emerges as a persistent objector to the judicial council model. While judges still influence decision-making on judicial careers in a variety of ways, they do not participate in appointments to federal courts. The involvement of political branches in such appointments is defended by the need for stronger democratic legitimacy for judges. In response, academics have argued that appointment is not the only way to legitimise judges: the primary source of their legitimacy is the quality of their work. This democratisation of the judicial appointment processes bears the risk of politicisation, which can jeopardise judicial independence. The committees tend to increase the influence of party politics on the selection process.

Still, a system that could have easily undermined judicial independence in other contexts does not appear to have had such an effect in Germany. A number of features reduce the risks of undue politicisation. First, due to the involvement of the states in the Appointment Committee, no federal government or parliamentary majority can appoint federal judges independently. Second, there is effective judicial control concerning judicial appointments. Decisions of the minister of justice can be challenged in court. Judicial control helps prevent appointments that are clearly politically motivated. Recently, the Federal Constitutional Court called for merit-based selection. It was emphasised that the Appointment Committee is under an obligation to select a candidate who can be appointed by the competent minister without forcing the minister to violate their duty to appoint only based on merit. Further, the minister can refuse the appointment of a selected candidate if they are manifestly ill-suited for the position. If the minister decides to appoint a selected candidate, even though the professional evaluation found them not to be suitable for the position, the minister has an obligation to state their reasons. Third, a “culture of independence” precludes abuse by politicians. Political actors tend to be aware that they are choosing independent judges who only answer to the laws and the Constitution. There are no sound reports that any German judges have acted under pressure of political parties or other authorities.

Outside the federal-level appointments, judges are involved in judicial governance, including judicial appointments, notwithstanding the absence of a judicial council. Even if final decisions rest with the ministry, they are in a position to give opinions or in, some instances, veto a particular measure. In the past few years, however, judicial associations have continued to call for increased judicial involvement through a judicial council. The association with by far the highest number of members among judges has called for the creation of two bodies of judicial self-governance; a judicial selection committee, composed of a majority of members from state parliaments, and a minority of judges, elected by judges. The second body, the judicial administrative council, consisting of judges, would take over judicial appointments, promotions, and discipline from the ministry of justice, but would be recalled by the above-mentioned selection committee, which was itself to be answerable to the parliament.

The New Association (Neue Richtervereinigung), with only 550 members, has proposed a more radical model. They suggested abandoning the system of advancement of judges, which means that all judges would be equal, irrespective of the court in which they sat. Moreover, court presidents’ positions would only be transferred for a limited time. The thinking behind this proposition is that a junior judge would not need to second guess the senior judges responsible for deciding on their promotion. As regards judicial self-governance, the plan is similar to the one proposed by the main association, in that the body with the judges elected by judges in a majority. Commentators have suggested that “according to the traditional German understanding of democracy, establishing a council in which judges elected by peers have majority to decide on judicial careers would be unconstitutional, as judges elected by judges from among themselves would not be able to trace back their administrative mandate to the German people.” A separate concern is that many judges might not be inclined to be in charge of their professional lives.

Civil society organisations have pointed out that less than one per cent of first-instance court decisions are published. This is a problem for both the legal practice and those potentially seeking justice, since they cannot assess their chances of success before the courts. The few decisions that are published often create an incorrect impression that certain views are predominant. Even at the highest courts, an obligation to publish only arises if the decisions are deemed worthy of publication by the courts, and it is often unclear what makes a decision “worthy”. Civil society organisations have called for including an obligation to publish all court decisions as a rule.

In its judgment of 5 May 2020, the German Federal Constitutional Court (FCC) declared a judgment of the Court of Justice of the European Union (CJEU) concerning the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB) to be “simply not comprehensible and arbitrary from an objective perspective so that, to this extent, the judgment was rendered ultra vires”. In June 2021, the Commission initiated infringement proceedings against Germany in connection with this judgment, particularly for undermining the “primacy, effectiveness and uniform application of Union law”. The German government reacted in August 2021 with an official statement, which led to the closure of an infringement case. In this statement, the government formally reaffirmed the principles of autonomy, primacy, and effectiveness of EU law. It expressly recognised the authority of the CJEU in the EU, and declared its intention to use all means at its disposal to actively avoid a repetition of an ultra vires finding in the future.

Experts have suggested that this statement by the German government is, in a sense, an empty promise. The government cannot coerce the FCC to reverse its decisions or abandon its ultra vires and identity control. It is unlikely that the Federal Constitutional Court will abandon its ultra vires and identity review, in light of the government’s promise towards the Commission. However, it has not activated these competences since. It has always declared that it exercises these reviews with restraint, in light of European integration, and in a cooperative manner. Hence, there are differences between the FCC and other constitutional courts that have systematically challenged the CJEU, such as the Polish Constitutional Tribunal (PCT): First, the FCC acted on its own, whereas the PCT acted at the request of the government. Second, the FCC case concerned the isolated issue of an ECB bond-buying scheme, and the issue was resolved, whereas the PCT questioned the primacy of EU law in general. The Polish government has continued attacks on the EU law, lodging new cases with the PCT.