Presentation by Dr Winfried Hassemer, Vice-President of the Federal Constitutional Court of Germany

Prof. Dr. Dres. h.c. Winfried Hassemer                                                  
Vice-President of the Federal Constitutional Court
  References:
1. Hirsch, Günter, Europäischer Gerichtshof und das Bundesverfassungsgericht – Kooperation oder Konfrontation, NJW 1996, 2457 et seq.
2. Jäger, Renate/Broß, Siegfried, Die Beziehungen zwischen dem Bundesverfassungsgericht und den übrigen einzellstaatlichen Rechtsprechungsorganen  - einschließlich der diesbezüglichen Interferenz de Handelns der europäischen Rechtsprechungsorgane, EuGRZ 2004, 1 et seq.
3. Kirchof, Paul, gegenwartsfragen an das Grundgesetz, JZ 1989, 453 et seq.
4. Limbach, Jutta, Das Bundesverfassungsgericht und der Grundrechtsschutz in Europa, NJW 2001, 2913 et seq.
5. Nicolaysen, Gert/Nowak, Carsten, Teilrückzug des BVerfG aus der Kontrolle der Rechtmäßigkeit gemeinschaftlicher Rechtsakte: Neuere Entwicklungen und Perspektiven, NJW 2001, 1233 et seq.
6. Scheuing, Dieter H., Deutsches Verfassungsrecht und europäische Integration, in: Gemeinsames Verfassungsrecht in der Europäischen Union, 1998, p. 157 et seq.
7. Scholz, Rupert; in Maunz/Dürig/Herzog/Scholz, Stand: Okt. 1996, Art. 23
8. Vogel, Wolfram, Verfassungsgerichte in der europäischen Integration: Deutschland und Franhreich im Vergleich, in: Demokratietheorie und Demokratieentwicklung, 2004, p. 197 et seq.
 
1. The Position of the Federal Constitutional Court in the German Constitutional Order
 
Proceeding from the experiences from the politically unsteady times of the Constitution of the Weimar Reich which found its end by the means of democracy, a basic idea founding the federal republic was to put a normatively strong constitutional restraint on to the political process. The Federal Constitutional Court was established as a guardian of the Constitution, and could be appealed to by all the state authorities to decide conflicts in the political process.[2]
 
In the course of European integration the Federal Constitutional Court was called several times to review the conformity of the Community law with the German Basic Law. Thereby the Court has identified particularly two Integration barriers (Integrationsschranken) and made them the centre of the decisions: firstly there is the question of the effective guarantee of personality fundamental rights against acts of the community institutions,[3] and secondly the question of democratic legitimation of the legislature in the European Union.[4]
 
Before introducing the leading decisions of the Federal Constitutional Court a glance at the Basic Law is needed. Two articles which deal with the German integration into the European Community/Union can be found.
 
To begin with, paragraph 1 of Article 24 of GG has been contained in the Basic Law already from 1949 and determines that the Federation may by law transfer sovereign powers to intergovernmental institutions, therewith it reflects the openness of the Basic Law to the integration. Article 24 of GG has been since 1992 – as regards the integration into the European Union - amended by Article 23 of GG. Paragraph 1 of Article 23 reads as follows:
"With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of fundamental rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject to paragraphs 2 and 3 of Article 79."
 
Paragraph 3 of Article 79 of GG determines that certain fundamental principles of the German Constitution are not open to constitutional amendments ("Guarantee of eternity"). In other words, paragraph 1 of Article 23 of GG authorizes the Federal legislature to grant within the limits of paragraph 3 of Article 79 of GG (BVerfGE 89, 155 <172>)[5] the EU sovereign rights.
 
The remaining paragraphs of Article 23 of GG concern the participation of Länder in transferring sovereign rights to the EU. They are not of an importance for the discussion below.

 
2. Review of the Decisions of the Federal Constitutional Court (chronological)
 
a) BVerfGE 22, 293 et sub.
 
In one of its first decisions from 1967 the Federal Constitutional Court presented general deliberations concerning the nature of the European Community. In the decision it wrote:
"The Community is not itself a State, even a federal State. It is a Community of a special nature engaged in a process of continuing integration, an "inter-governmental institution" within the meaning of paragraph 1 of Article 24 of Basic Law, to which the Federal Republic of Germany – like the other Member States – has "transferred" particular sovereign rights. This means that a new public power has been created, independent and autonomous in relation to the State power of the individual Member States (BVerfGE 22, 293 <296>)."
 
The Federal Constitutional Court explicitly left open  as to whether and to what extent the Federal Constitutional Court can measure Community law against the fundamental-rights norms of the Basic Law in the context of a procedure on admissibility brought before it. This namely depends on "whether and in what sense one may speak of a binding of the EEC organs by the fundamental-rights order of the Federal Republic of Germany" (BVerfGE, a.a.O. <298 et sub.>). The concrete constitutional complaint was dismissed as inadmissible, as it was aimed directly against a regulation of the Community (BVerfGE, a.a.O. <297>). It follows from the decision that for the jurisdiction of the Federal Constitutional Court the formal qualification of an organ which issued a challenged legal act is decisive. An organ standing outside the structure of the German State organization does not exercise any German public power. It is unimportant here that public power of the EEC can arise only through the collaboration of German State power (through transferring sovereign acts pursuant to paragraph 1 of Article 24 of GG) (BVerfGE, a.a.O. <297>).
 
b) BVerfGE 37, 271 et sub. ("Solange I")
 
In the decision known as "Solange - I" dated 1974 the Federal Constitutional Court continued its case-law. In the decision it recognized that the Community law stems from an autonomous legal source. It does not draw a conclusion form this – differently as the ECJ - that owing to the independence of a legal source, whatever special national law (legislation) cannot have priority.[6] The Federal Constitutional Court on the contrary established that the two legal spheres  standing side by side one another with their own validity developed are independent (BVerfGE 37, 271 <278>). Binding effect of the case-law of the ECJ on a national Constitutional Court cannot develop already for the fact that the two standards which must be established in each review do not correspond (BVerfGE 52, 187 <200>). The ECJ reviews the conformity with primary and secondary Community law, the standard for a review of the Federal Constitutional Court is the Basic Law. The Federal Constitutional Court therefore does not need to deal with the question of whether national provisions are in compliance with the Community law.
In case that both legal spheres are affected, there is a conflict between secondary Community law and the German Basic Law; due to the special meaning of the Basic Law for the constitutional structure the Federal Constitutional Court gave priority to the national law. Therefore a provision is pronounced that "as long as"[7] the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law, secondary Community law will still be reviewed according to standards of the Basic Law (BVerfGE 37, 271 <285>). The Federal Constitutional Court nevertheless does not carry out national constitutional protection in the narrower sense. The Court has on the contrary explicitly acknowledged that the limitations of the German Basic Law in the interests of the Community could in principle be justified (BVerfGE, a.a.O. <289>).
Due to such case-law of the Federal Constitutional Court a court which believes that a regulation of a Community law which is important for a decision is not applicable due to a violation of constitutional fundamental rights, is obliged, following a submission to the ECJ, to submit the case to the Federal Constitutional Court for a decision. A submission to the ECJ according to Article 177 of the Treaty (now Article 234 of the Treaty) is anticipated (BVerfGE 85, 191 <203 et sub.>; 106, 275, <295>), due to the fact that as long as the applicability of a Community provision regarding its compatibility with the Community law is not cleared, it lacks its relevance for a decision. Such is namely a pre-condition for a constitutional review by the Federal Constitutional Court (BVerfGE 82, 159 <191>; Jäger/Broß, a.a.O. <15>).
 
c) BVerfGE 73, 339 ff ("Solange II")
 
Although the European Community has not yet adopted a catalogue of fundamental rights similar to the Basic Law and enforced it, the Federal Constitutional Court in "Solange II - Decision" dated 1986 delivered its requirement for a regular control of the Community law regarding its compliance with German fundamental rights. Thereby the Court regarded the case law developed and enforced by the European Court of Justice, which regarding the concepts, contents and the manner of carrying out matches the standards of the fundamental rights of the Basic Law. All the main bodies of the Community have professed to be guided by their respect for basic rights as ensuing in particular form the constitutions of the member states and the European Convention on Human Rights in exercising their competences and pursuing the goals of the Community and to consider that to be their legal duty. This justifies – notwithstanding the non-existent catalogue of fundamental rights – a withdrawal "for the time being from carrying out judicial office". A principle of its own competence for a review is thus not given up, but suspended until further. The headnotes of the decision read as follows:
"As long as[8] the European Communities, in particular European Court case law, generally ensure effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Basic Law." (BVerfGE a.a.O. <340>)
 
d) BVerfGE 89, 155 ff ("Maastricht")
 
Proceeding with the constitutional complaint based on the violation of Article 38 of GG (the fundamental right to general, direct, free, equal and secret elections to the German Parliament) and challenging  the Statute Requiring Assent (Zustimmungsgesetz) to the Treaty of Maastricht, the Federal Constitutional Court dismissed the complaint as admissible but not founded. The Court in the decision further concretized and refined its principles. In the decision both limitations of integration were discussed.
(1) The Federal Constitutional Court reviewed the question whether due to the Treaty of Maastricht the protection of competencies of the German Parliament was in such a substantial extent passed over to the Council of Ministers that, according to Article 20 and paragraph 3 of Article 79 of GG, the irrevocable minimal requirements of the democratic legitimation, meaning the sovereign power originating from the citizens, could no longer be preserved and thereby the right to participate in the legitimation of the state power through elections, guaranteed in Article 38 of GG, is violated (BVerfGE, a.a.O. <172, 182>).[9] In other words, the issue was whether the elected Parliament is granted substantial competencies.
In addition to this the Senate held the Treaty of Maastricht does not establish a European state, but only a confederation of states which is crucially based on the Member States. The Member States are "Masters of the Treaties" (BVerfGE, 89, 155 <190>). The Treaties concluded for an indefinite period could thus be annulled by a contrary Act (BVerfGE, a.a.O.).
In this confederation of states the task of democratic authority and supervision at least regarding the crucial points goes to the parliaments of the Member States. This means that the European Union and the European Communities were conferred only limited individual competencies on the basis of the previous Treaties in each case and that carrying out of the additional  competencies of the Community is possible only on the basis of the appropriate amendments of the Treaties. However, such amendments to the Treaties depend upon the affirmative decisions of the Parliaments of the Member States. The Treaties should be, also in cases in which the Community bodies exercise the conferred sovereign powers, foreseeably enacted, as only in such a case could the national legislature accept the responsibility for the Statute Requiring Assent (Zustimmungsgesetz).
In addition to the cooperation of the national Parliaments on the Statutes Requiring Assent (Zustimmungsgesetze), the German Parliament influences the European politics of the Federal Government also through their parliamentary responsibility (Articles 63, 67 of GG). The Community power should therefore be primarily carried out by the Council of Ministers, as only its members have a democratic authority through the Parliaments of the respective Member States. In view of such cooperation- and influencing  possibilities of the German Parliament the Treaty of Maastricht did not empty the deciding- and supervision  possibilities of the Parliament in the manner contrary to the democratic principles.[10] The German Parliament therefore retained – as determined by Article 38 of GG – the competencies of the substantial importance (BVerfGE, a.a.O., <189 f., 207>).
Compared to the national Parliaments the European Parliament has at the moment only a supporting function, which is getting stronger as its influence on the politics and legislation in the Community grows. The decision (of a crucial importance) that the democratic foundations of the Union gradually mature with the integration and also with the progress of integration in the Member States, preserves a lively democracy. An excessive amount of tasks and competencies of the Union would weaken democracy at the level of the states (national level), as the Parliaments of the Member States could no longer to the appropriate extent participate in the authority of the carried out sovereign power of the Union (BVerfGE, a.a.O., <186>).
In order to be able to review also in the future whether in legal regulations of the Union constitutional democratic principles were sufficiently considered, the Federal Constitutional Court retained the power to review also in the future whether "legal acts of the European institutions and bodies stay within the limits of their allowed sovereign rights, or they exceed such" (BVerfGE, a.a.O., <156>).
The federal Constitutional Court drew such standard of review from paragraph 1 of Article 23 of GG which requires a Statute Requiring Assent (Zustimmungsgesetz) for the amendments of the treaty foundations of the European Union and for comparable regulations (BVerfGE, a.a.O., <210>). Provided that the Federal Constitutional Court establishes that the legal regulations adopted by the Community bodies cannot be attributed to the democratically authorized delegation of the sovereign rights, such have no binding effect on the German national territory. It follows from the above-mentioned that German state bodies may not apply them in Germany for constitutional reasons. It is the matter of legal regulation contrary to state competencies and consequently to democracy also if the regulation is based on such interpretation by the Community bodies which amounts to an expansion of a treaty; therefore the regulation does not require the State bodies to apply it in the national legal system without a Statute Requiring Assent (Zustimmungsgesetz), as the Treaty of the Union basically differentiates between the carrying out of the narrowly limited recognized sovereign competency and the amendment of the Treaty (BVerfGE, a.a.O., <210>). A "competence over competence" was not proclaimed by the Union and such does not belong to it (BVerfGE, a.a.O., <197>).
The "open space" of the German constitutional system allows for the Community legal order to enter the national law system but it is at the same time limited regarding the creation of Community law for the first time (appropriate competence needed).[11]
 
(2) Secondly they are limited by the effects of the Community regulations, as no violations of identity forming basic values may be connected therewith.[12]
Considering the "Solange – decision," which generally discussed the protection of fundamental rights, the Federal Constitutional Court in the "Maastricht - decision" repeated that an important diminishing of the fundamental rights standards is not connected with the progressive integration. Furthermore, the Federal Constitutional Court guaranteed that the effective protection of fundamental rights is generally guaranteed to the inhabitants of Germany also against the sovereign powers of the Community. In the EU, the guaranteed protection of fundamental rights is substantially similar to the absolutely necessary protection of fundamental rights determined in the Basic Law, particularly as the existence of the fundamental rights is generally guaranteed. The Federal Constitutional Court guarantees such also against the sovereign power of the Community (BVerfGE, a.a.O., <174 f.>). Also regulations of a special public power of the supranational organization, separated from the state powers of the Member States, concern those who enjoy fundamental rights in Germany. Thereby they consider the guarantee of the Basic Law and the task of the Federal Constitutional Court whose subject is the protection of fundamental rights in Germany and not only against German state authorities. In view of the above-mentioned, the Federal Constitutional Court changed its so far existing case-law according to which constitutional review could apply exclusively to regulations of German state powers, i.e. to decisions of courts, administrative acts of authorities or measures of constitutional bodies of the Federal Republic (BVerfGE 37, 271 <283>; 58, 1 <27>). In the future violations of the fundamental rights which are based directly on the Community law and which do not require national regulations could also be enforced before the Federal Constitutional Court.
The Federal Constitutional Court restrictively draws attention to the fact that it carries out its competencies over the applicability of secondary Community law in Germany in the "cooperative-relationship" to the European Court, thereby the European Court guarantees the protection of fundamental rights in each individual case for the whole territory of the Community, to the effect that the Federal Constitutional Court can therefore limit itself on the general guarantee of the absolutely necessary standards of fundamental rights (BVerfGE 89, 155 <175> with regard to BVerfGE 73, 339 <387>). It follows from the above-mentioned that the European Court is competent for the protection of fundamental rights of the citizens of the Federal Republic of Germany against the regulations of national (German) public power which are adopted on the basis of secondary Community law. The Federal Constitutional Court takes action only in cases in which the ECJ does not observe the standards of the fundamental rights which the Federal Constitutional Court established in "Solange II - decision" (BVerfGE 73, 339 <378-381>).
 
e) BVerfGE 102, 147 ff. ("Regulation on the Market of Bananas")
 
In the decision regarding the regulation on the market of bananas in 2000 the Federal Constitutional Court uprightly preserved its case-law regarding the protection of fundamental rights against the legal regulation of the Community. The one who wishes to assert before the Federal Constitutional Court the violation of a fundamental right through secondary Community law, must demonstrate that European law development including the case-law of the European Court after the pronouncement of the "Solange II - decision" declined according to the necessary standard of fundamental rights. Therefore the reasoning of a submission or a constitutional complaint must reason in detail that in each case the inalienably required protection of fundamental rights is in general not guaranteed. This requires a confrontation of the protection of fundamental rights at the national and community level in a manner such as carried out (BVerfGE 102, 147) by the Federal Constitutional Court in "Solange II - decision" (BVerfGE 73, 339 <378 to 381>). In the concrete case the submission was dismissed as inadmissible.
In practice this decision may lead to the conclusion that by smooth running of events in the future a court or a citizen will be hardly able to reason that the protection of fundamental rights within the Community had sunk under the threshold defined in "Solange - II" decision. This is going to be more difficult particularly through the directly approaching farewell of the EU-charter of fundamental rights.
 
f) Decision of the First Chamber of the Second Senate dated 17 February 2000 "Alcan - Decision" (NJW 2000, 2015)
 
While the subject of the decision on the EU Regulation on bananas were integration limitations of the protection of fundamental rights, the subject of Alcan-decision was furthermore the second in Maastricht – judgment applied integration limitation, namely the review of the competence conformity of the community legal acts. Considering the individual case the Federal Constitutional Court denied the existence of the "broken out legal acts", without insisting on its interpretation in the review reasoned in Maastricht – Judgment. The course of the decision is the same as in the decision on the EU regulation on bananas.
 
3. Summary
 
The cooperative relationship between the Federal Constitutional Court and European Court can be, deriving from the Maastricht – decision, summarized as follows:
 
a) The establishment of the primary Community law is subject to the respective national Statute Requiring Assent (Zustimmungsgesetz) on direct and primary constitutional supervision by the Federal Constitutional Court.[13] The Federal Constitutional Court thereby reviews the compliance with the Constitution of the changes, amendments and extension of the Treaty.
In so far as the Federal Republic of Germany is bound through the EU-Treaty to the intergovernmental cooperation or to internationally binding interferences of the constitutional importance, all such interferences, in case that they are in Germany, can be fully reviewed by the Federal Constitutional Court. The protection of fundamental rights in this sense does not overlap with supranational law which requires priority. If the Federal Constitutional Court established that the state’s carrying out could violate the fundamental rights, such is prohibited due to the Constitution (BVerfGE 89, 155 <177>).
 
b) In so far as it is the matter of the interpretation of secondary Community law, the supervision competence of the ECJ is dominating as only it can guarantee a unified legal interpretation on the entire territory of the Community.[14] If the interpretation of the secondary Community law by the ECJ interferes with protected fundamental rights which – as reasoned in detail by the constitutional complainant – do not appear at the Community level (thus neither in the common tradition of the fundamental rights or in the European Convention on Human Rights), then the supervision competence of the Federal Constitutional Court consequently remains – theoretically – in existence. The same applies also in cases in which – despite fundamental rights recognized in the Community – the interference encroaches on the existence of the fundamental rights guaranteed by the Basic Law. However, thereby the admissibility obstacles are high, practically hardly to be defeated (compare with the "EU regulation on bananas").
 
4. Duty to refer a question
 
What is finally discussed is the issue on the duty to refer a question according to Article 234 of EGV (before Article 177 of EGV).
 
a) The duty to refer a question binds all national courts, thus also the Federal Constitutional Court. In cases where such interpretation is of a constitutional importance, this cannot preclude the supervision competencies of the Federal Constitutional Court. The Federal Constitutional Court must, directly after the decision of the ECJ, review whether the competence which is protested to be to the benefit "of the general competence of the unlimited standards of fundamental rights" (BVerfGE 89, 155 <174>) required an interference.
 
b) The violation of the duty to refer a question according to Article 234 EGV furthermore concerns the Federal Constitutional Court in such a manner that the provision on statutory judge as determined in the Basic Law can be violated by a specialized court if it omits the duty to submit a case to the ECJ in order to clarify the disputed compliance of a national legal norm with the Community law. The ECJ is a "statutory judge" in the sense of the second sentence of paragraph 1 of Article 101 of GG.[15]