"The Federal Constitutional Court shall decide on differences of opinion or doubts about the formal and factual compatibility of federal law or state law with this Basic Law or the compatibility of state law with other federal law at the request of the Federal Government, a state government or a quarter of the members of the Bundestag."
While Art. 93 para. 1 no. 2 of the Basic Law therefore only places low requirements on the grounds for the application and allows mere doubts to suffice, Section 76 para. 1 no. 1 of the Federal Constitutional Court Act is much stricter: the applicant must consider the provision to be reviewed to be annulled. § Section 76 para. 1 no. 1 BVerfGG thus tightens the provision in Art. 93 para. 1 no. 2 GG in two respects: Firstly, mere doubts are not sufficient and secondly, it is the applicant (and not just anyone) who must consider the provision to be null and void. It is now disputed whether this restriction in Section 76 para. 1 no. 1 BVerfG means that this provision is (partially) unconstitutional or in any case must be interpreted in conformity with the constitution. The BVerfG assumes that § 76 para. 1 no. 1 BVerfGG constitutes a constitutional concretization of Art. 93 para. 1 no. 2 GG (BVerfGE 96, 133 (137).
In his commentary on the Federal Constitutional Court Act,Kees states that this dispute plays no role in practice. After all, the mere assertion of the corresponding conviction is sufficient (Kees, in Mitarbeiterkommentar zum BVerfGG, § 76 para. 45). However, this is incorrect; this view disregards the grand content of the provision in Art. 93 para. 1 no. 2 GG. The fact that mere doubts about the constitutionality of a provision are sufficient to submit it to the Federal Constitutional Court only in the context of the abstract review of a provision under Article 93 para. 1 no. 2 of the Basic Law (and not, for example, in the case of the concrete review of a provision under Article 100 para. 1 of the Basic Law) can ultimately only have one meaning and purpose: The provision is intended to give the constitutional bodies involved in the legislative process the opportunity to scrutinize themselves. The Federal Government, for example, is to be given the opportunity to submit a law drafted by itself to the BVerfG that goes to the limits of the rule of law in order to effectively avert danger or prosecute criminal offenses, and may even exceed these limits. One example of this is data retention. In such a case, a federal government would not be able to argue that it is convinced that the law it has drafted is unconstitutional. It can only plausibly argue that it itself has doubts about the constitutionality of the regulation; it wants to go to the limits of what is possible under the rule of law with the regulation, but not exceed them.
The Hamburg band Tocotronic sums up the basic idea of Article 93 para. 1 no. 2 of the Basic Law well:
"When in doubt, give the benefit of the doubt
The hesitation and the anger
In case of doubt for tearing
Of one's own uniform."
It would be nice if the BVerfG would no longer close its mind to this basic idea of Art. 93 para. 1 no. 2 GG, which allows a constitutional body to "tear up its own uniform", i.e. to question itself.