Univ.-Prof. Dr. Thomas Giegerich, LL.M. has published a new article under the title „Zwischen Europafreundlichkeit und Europaskepsis – Kritischer Überblick über die bundesverfassungsgerichtliche Rechtsprechung zur europäischen Integration“ (Oscillating between Friendliness and Scepticsm towards the European Union – A Critical Survey of the Federal Constitutional Court’s Case-Law regarding European Integration). The full article has recently come out in the „Zeitschrift für Europarechtliche Studien“ (ZEuS), Vol. 1, 2016, p. 3-47.
The German constitution and the Federal Constitutional Court (FCC) as its protector on the one hand and the EU constitution and the Court of Justice of the EU (ECJ) as its protector on the other hand are still in the process of defining their mutual relationship. The challenge is to find the proper distribution of judicial (and accordingly also political) power between the two levels of government in the EU as a quasi-federal system sui generis. Unsurprisingly, both courts have insisted on the autonomy of “their” respective constitutional order and on their own power to have the final say with regard to the relationship of “their” to other legal orders. Yet, despite their different approaches and occasional verbal grandstanding, both courts respect each other and have so far managed to avoid open conflicts and practiced cooperation for the mutual benefit of both the EU and its German Member State. There are, however, instances in which the readiness of the FCC to cooperate with the ECJ could and should be improved. For instance, the FCC should itself be more willing to make references pursuant to Art. 267 (3) TFEU and to compel the last-instance German courts to fulfil their reference obligation.
The three main conflict areas between the German and European constitutions and their courts have been fundamental rights, the federal structure of Germany and more recently democracy. While the federalism issue was settled some time ago, the fundamental rights conflict still poses some problems. Earlier, the FCC had criticized the lack of adequate fundamental rights protection at European level and announced that it would use national fundamental rights to close the gap, irrespective of the European law’s claim to primacy. Lately, the FCC has rebuked the ECJ for its alleged tendency to expand the fundamental rights of the EU Charter beyond the bounds of Art. 51 (1) of that Charter which interferes with the FCC’s power to determine the level of fundamental rights protection in Germany.
In the last years, however, democracy has developed into the most important conflict area, primarily with regard to the preservation of democracy in Germany. The FCC tends to equate democracy with sovereign statehood in the traditional sense which the Framers of the German Constitution had tried to overcome. While the Court also demands that the democratic structure of the EU be continuously strengthened, it has made clear its view that the European Parliament can play no more than a secondary role compared to the Council. The FCC has decried the degressively proportional representation of Union citizens in the Parliament which disadvantages German voters compared with voters from smaller Member States. But it neglects the fact that this representation mode is the only way to ensure adequate representation of the smaller Member States without expanding parliamentary membership beyond functionality. At any rate, the European Parliament’s functionality was not considered as important enough by the FCC to justify the German legislature in setting any minimum threshold for the allocation of seats. In leaving that decision to the national legislatures, EU law had obviously expected them to exercise their discretion in accordance with Art. 4 (3) TEU in a way which would prevent excessive fragmentation of the European Parliament.
The FCC’s democracy jurisprudence began with its review of the constitutionality of the Treaty of Maastricht in 1993 and was expanded when it reviewed the Treaty of Lisbon in 2009. Recently, the FCC has and still is using the democracy principle as a standard to review the endeavours for saving the Euro. The FCC employs the Germans’ fundamental right to vote in federal elections as the procedural basis for its interventions, permitting every German voter to lodge a constitutional complaint against further transfers of powers from the German federal parliament to the EU. According to the FCC, the German Constitution does not permit such transfers to an extent which voids the powers of the German parliament and thus destroys democracy in Germany. As a matter of fact, however, the FCC has so far always found ways to uphold new European Treaties or other EU acts as such and only ordered further safeguards in German law (such as the requirement of parliamentary authorization of executive measures).
One aspect of that democracy jurisprudence is the FCC’s claim to exercise both ultra vires review and “identity review” over EU acts (including decisions of the ECJ). Ultra vires review concerns the question whether EU institutions overstepped the limits of the powers transferred to them by the Treaties. “Identity review” denotes the FCC’s claim to review EU acts as regards their compatibility with the fundamental values of the German Constitution, laid down in Arts. 1 and 20 of that Constitution that define Germany’s constitutional identity in the sense of Art. 4 (2) TEU. Those review powers claimed by the FCC disregard the ECJ’s monopoly concerning the nullification or disapplication of EU acts. They are incompatible with EU law. So far, the FCC has not struck down any EU act for being ultra vires or in violation of German constitutional identity, but it cannot be excluded that this will happen in the future and precipitate a crisis in the EU.
The FCC’s case-law on the EU leaves an ambivalent impression. Several decisions are friendly toward European integration, but there are other sceptical ones, rather with regard to their reasoning (including obiter dicta) than their operative provisions. In the overall assessment, the FCC has acted neither as frustrator nor as promoter of European integration but rather as decelerator. The decelerator function has neither a patently positive nor a patently negative connotation. While improper deceleration can stall and possibly ruin a dynamic project like the European integration process, proper deceleration can save an overly dynamic process from derailment. It will be difficult to reach agreement on how the deceleration manoeuvres of the FCC should be qualified. In my view, they have had a negative tendency.
All abstracts of this volume of the ZEuS can be found at http://europainstitut.de/fileadmin/zeus/ZEuS_1-2016.pdf.