Franciszek Latusek is currently a 1st year student of UCL’s History Department with a keen interest in history of political thought, as well as law and policymaking of the EU. In the future he hopes to serve in the civil service or be called to the bar.
Poland | June 27, 2020 | Student Essay
The newest and liveliest topic in EU and domestic public law is perhaps the ‘ultra-vires’Karlsruhe’s Bundesverfassungsgericht (hereinafter BVerfG) Judgement of the Second Senate of 5th May 2020 (2 BvR 859/15). The legal and popular publications were full of wide-ranging predictions of its implications for the EU legal order. It is perhaps equally as important and interesting, though, to examine the wider context of the ‘ultra-vires’ ruling—the interaction between the German constitutionalism and EU law, underlined by the long-standing debate between legal monists led by the CJEU and the idea of constitutional pluralism outlined by MacCormick. This article will focus more on the ramifications of the existing European legal order and Germany’s position within it, rather than jumping on an opportunity to speculate. In doing so we will examine and dissect Germany’s role in shaping the EU’s legal order.
First, let us turn to the conceptual basics. It will allow us to realize the difficult—in its clash between aspirations and constitutional barriers—place of Germany within its ever-tighter field of political and economic manoeuvre. Upon accession to the EU, the Community law must be incorporated into national legal systems and made directly effective within the legal framework of individual Member States. This follows from the seminal and well-known principle first enunciated by the CJEU in Costa v Enel (ECLI:EU:C:1964:66) and elaborated upon in Van Gend en Loos (ECLI:EU:C:1963:1). The doctrine of direct effect requires that domestic legislation—be it acts of national legislatures, subordinate legislation or constitutions—be amended in line with Community law where a potential conflict between directly applicable EU law and domestic law arises. This produced an obvious legal conundrum—how to accept EU law supremacy without endangering national sovereignty. The German conceptual answer, now adopted by many other jurisdictions (see, e.g., in case of the UK, the dicta in HS2 or Miller (No 1)), lies in the national constitution, the Basic Law, and not in a normative supremacy of the Community law, despite what the reasoning of Costa might suggest. This approach is problematic from the Union’s point of view. By grounding the EU supremacy in provisions of the Basic Law in its Honeywell ruling (2 BvR 2661/06), the BVerfG only accepted the EU law supremacy insofar as the provisions of the constitution allowed it, retaining, in fact, the supremacy of national legislation.
Germany’s role in EU legal order thus became a protracted legal discussion between the BVerfG and the CJEU. It may have seemed, from the political point of view, that the issue at hand was properly dissected and taken care of in the ‘Solange’ series of judgements. In them, BVerfG first held that ‘fundamental rights’ within the German Basic Law prevailed over conflicting EU legislation (BVerfG 37, 271 2 BvL 52/71 Solange I-Beschluß). This became known as the Solange I judgement, the position of which was later rescinded in Solange II (BVerfG 73, 339 2 BvR 197/83) in which the Court held that it would ‘no longer exercise its jurisdiction’ to review Community legislation as long as the fundamental rights protected by the Basic Law are protected, generally, by Community law. It is true that from a political point of view the problem was resolved—the likelihood of conflict became small. It did, nonetheless, still mean that the BVerfG believed it had the ultimate jurisdiction, and the doctrinal tension remained well alive. Following from that, I would argue the ‘ultra vires’ judgement from early May stems from the ideological divide between the EU organs and Member States—with CJEU’s and national courts’ self-proclaimed supremacies.
How does this translate to the current role of Germany in Europe? One extreme judgement of the situation is perhaps that by clinging to national law supremacy Germany, being undoubtedly one of the largest players in the EU, obstructs progress and—more recently—obstructs the workings of the Commission and the ECB. I believe the situation to be more nuanced. Germany’s role is, essentially, what its constitution allows it to be. By retention of its own constitution’s primacy, Germany creates and provides solutions that can be, generally, acceptable to most countries (constitutionally speaking). The Franco-German proposal of the recovery fund from mid-May, despite opposition to it in the ‘frugal four’, is an example of that. It is a constitutional workaround put in place to ensure fiscal sovereignty, one of German Basic Law’s ‘eternal clauses’ in face of the coronavirus crisis. The €500bn fund, rather than being a ground-breaking single instrument that would require a re-work of the Treaties, is dispersed between already existing EU budgetary instruments, so as to dodge the issue of being ‘ultra vires’. Germany, thus, on one hand protects the status quo within the EU. On the other, though, the challenge to ECB’s Covid-19 Euro crisis response by the Karlsruhe Court opens up the possibility of reform within the Basic Law and further, perhaps, Treaties. I agree with Rachman that a democratic, political response to the legal challenge posed by the BVerfG may be the way forward. For Germany and for Europe.
For now, it is safe to say that Germany or more specifically, its highest constitutional court, acts as a safeguard to the current, non-federal state in which Europe finds itself. Germany with its constitutional case-law pertaining to retention of constitutional pluralism, the respectability of the BVerfG, aided politically by the size of its economy and population, in a way ‘keeps tabs’ on and lightly applies brakes to the Treaty concept of an ‘ever-closer union’. How slow in the status quo the European ‘bicycle of integration’ can ride without toppling is a question we are yet to find an answer to, though.
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