The Concept of Constitutional Identity in the Jurisprudence of the German Federal Constitutional Court

The Concept of Constitutional Identity in the Jurisprudence of the German Federal Constitutional Court Presented by: Prof. Dr. Graser Date: 13 December 2022 OUTLINE - Some background information (revisited) - The questionnaire's questions - Tentative conclusions BACKGROUND - Germany has always been a dualist system with regard to international law in general, ... - ...but also founding member of today's EU, well socialized under the supranational regime introduced in Van Gend and Costa E.Ν.Ε.L. - The German Basic Law hardly provided any explicit basis for such supranationalism until the constitutional amendment of 1992, which paved the way for the Maastricht Treaty and codified the earlier jurisprudence of the GFCC. - The Basic Law's “eternity clause” has always been understood to set limits on European integration. Q1: How Are EU Legal Acts Incorporated Into National Law? - As for secondary law: automatically - (New) primary law requires consent by the national legislature Q2: Has There Been Any Internal Examination, Legal Procedure At Member State Level Of The Entry Into Force Of The Constitutional Treaty And The Lisbon Treaty And Its Impact On The Legal Order Of The Member States? - The GFCC examined the (ratification of the) Lisbon Treaty, - … as it had done already for the Maastricht Treaty. Q3: On Which Issues Has The National Constitutional Court Refused To Inter Vene In Order To Protect National Law And Competence & On What Grounds? - Starting from the early 70s, the GFCC has constantly assumed the authority to check legal actions of the EU (or predecessors) for resulting violations of the German Basic Law. - Over the years, • it has framed, developed and reframed the yardstick for this control, and • it has come more or less close to hold a legal measure of the EU to be irreconcilable with the requirements of the Basic Law, but • - it has done this only once and since returned to its previous approach. Does a watchdog "intervene" only if it bites, or already if it barks? Bonus Material On Q3: Barking Vs. Biting A Watchdog's Modes Of “Intervention” - Areas of conflict • → fundamental rights, democratic legitimacy, principle of conferral (,, Keine Kompetenz- Kompetenz"), budgetary sovereignty - Criteria of (threatened) intervention • →human rights violations (no longer a separate category), ultra vires (practically most relevant), constitutional identity (encompasses both former categories; Art. I and 20 GBL) • →applicable to measures by all EU actors (and supporting national acts) • →only qualified violations relevant: “of evident and of structural importance” • →referral to ECJ first to be considered Q4: On Which Issues Has The National Constitutional Court Acted In Defense Of National Law And Competence And How? What Was The Scope Of The Case From The Point Of View Of The Exercise Of Competence By The Eu And By The Member States? - (Only!) in the PSPP-Decision of 2020: • upon a constitutional complaint directed at the (German states omission to prevent the) Public Sector Purchase Program and the related actions of the European Central Banking System), • following an affirmative preliminary ruling by the ECJ on this program • labelling this decision "simply not understandable and thus objectively arbitrary" because of its perceived failure to engage in a proper proportionality test, and • - thus holding the decision(s) ultra vires Was it (the) right (moment) to "bite"? • → Cf. the refusals in "arrest warrant" of 2015 and in "Next Generation EU" just last week. Q 6:Has The Interpretation Of Article 2 TEU (In Particular With Regard To The Rule Of Law) Been Reflected In The Practice Of National Constitutional Courts And Supreme Courts, And If So, On What Grounds Did The Court Base Its Decision? Q7: Has The Interpretation Of Article 4 TEU (In Particular With Regard To National Identity) Been Reflected In The Practice Of National Constitutional Courts And Supreme Courts, And If So, On What Grounds Did The Court Base Its Decision? - The GFCC's approach starts • from the limitations that it finds in the Basic Law with regard to to illegitimate (in procedural or substantive terms) or premature integration; • - not from EU law, although at times the GFCC has noted in passing that EU law is respectful of these limitations. Q8: How Has The Academic Position Changed From Accession To The Presen Day As Regards The Assessment Of The Impact Of Eu Law On The Member States (E.G. Primacy Of Eu Law, Relevance Of CJEU Decisions)? In German academia, - the decisions in van Gend and Costa E.N.E.L. were debated (maybe surprisingly) little at the beginning and have in principle been accepted by a vast majority ever since. - - the same is true for the GFCC's insistence that there are limits on European integration: • there is wide agreement certainly in procedural terms • but for most also in substantive terms, at least for the time being. The remaining battle ground for academic debate is correspondingly narrow. It has predominantly revolved around the question of how the GFCV should interpret its role. Bonus Material On Q8: Positions On The Watchdogs's Role - - Those who would like it… • To have bitten more often • To have bitten on other occasions • To have barked less loudly (in a softer voice? • Even to have stopped barking …might be • A small minority • Slightly more • A relative majority • Again a minority • … with the latter two positions gaining force over time.