Relationship between the European Court of Justice and the National Constitutional Courts. The control of legislative competences of the European Union

Inhaltsverzeichnis

Abkürzungsverzeichnis

1 Introduction and purpose of the paper

2 The European Court of Justice as a “motor of integration”
2.1 Composition, structure and organisation
2.2 Functions, proceedings and responsibilities
2.3 Relevant jurisdiction of the ECJ

3 The German Federal Constitutional Court as the “guardian of the constitution”
3.1 Composition, structure and organisation
3.2 Functions, proceedings and responsibilities
3.3 Relevant jurisdiction of the GFCC
3.3.1 The “Solange I” decision
3.3.2 The “Solange II” decision
3.3.3 The “Maastricht” decision (1993)
3.3.4 The banana market regulation (2000)

4 Cleavages within the cooperation of the ECJ and the GFCC 10
4.1 European legal perspective of the ECJ
4.2 European legal perspective of the German Federal Constitutional Court
4.3 Purposes for cleavages between the ECJ and national constitutional courts

5 Conclusion and future prospects

Reference List

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Abkürzungsverzeichnis

Abbildung in dieser Leseprobe nicht enthalten

1 Introduction and purpose of the paper

A clarification of the conditions between the European Court of Justice (ECJ) and the Constitutional Courts of the Member States is of particular importance to ensure the effectiveness of the Community law. The ECJ as the body of jurisdiction has to show due regard for the protection of Community law. Hence it is jointly responsible for the existence of the European Community (EC) as a community based on law as well as for the progress of European integration. In this regard, it is essential if the relation between the ECJ and the national courts is clearly definable or if the latter claim intersecting auditing authorities for its own. As a consequence of an ambiguous allocation of rights and duties, the Community law could be deprived of its effectiveness by conflicting judgments of the national courts, which have been implemented within the Member States.

The rise of EC competences as a result of the dynamic unification process leads to increasing actions of Community Institutions with reference to basic rights. The interpretation of Community law by the ECJ according to article 220 TEC has also enfolded the warranty of European basic rights against the Community actions. Particularly in Germany, the relationship of national courts to the ECJ is discussed primarily with regard to the question of basic rights, whereas the “Banana Common Market Organisation” is the starting point of the criticism. The “Maastricht” decision of the German Federal Constitutional Court (GFCC) for national verifiability of Community actions could finally be a ‘blasting composition’ within the EC. The Italian Federal Constitution Court follows a comparable approach, while the concept of the French constitution council differs extensively.

The law as an instrument of integration doubtless plays an important role concerning the development of the European Union. The Community law needs for its effectiveness common application and furthermore central jurisdiction with mandatory decisions. Thus, a decision of the GFCC which excludes the applicability of a certain secondary Community Law would have considerable negative impact on the progress of European integration (Sander 2001: 268). Indeed the GFCC essentially acclaims the primacy of Community law before national law, but it disputes the final decision-making authority of the ECJ for certain case constellations. The court assumes – based on the Maastricht judgment – that it exercises its jurisdiction beyond the applicability of derived Community law in a kind of a cooperative relation with the ECJ. Therewith the common effect of the Community law can be at stake.

Whereas the decisions of the GFCC already take a centre stage within public coverage and interest, in recent years the interest in decisions of the ECJ has increased considerably. The great significance of both courts is without controversy. However, there is not only a high level of media interest; the scientific discourse also places emphasis on the prominent importance of both institutions and interprets it in different ways.

The aim of this paper is to examine the relationship between the ECJ and the National Constitutional Courts with regard to possible cleavages. The question behind the following thesis is if the national courts can be referred to as the ‘underdogs’ of the European integration. Therefore, the GFCC is cited as an example.

2 The European Court of Justice as a “motor of integration”

2.1 Composition, structure and organisation

The European Court of Justice (ECJ) is based in Luxemburg. It was established in 1952 together with the European Coal and Steel Community (ECSC). Since October 7, 1958 the ECJ is responsible for legal matters concerning the ECSC, the European Atomic Energy Community.(Euratom) as well as the European Economic Community¹.

The ECJ consists of 15 judges (Article 221 TEC) and eight independent Advocates General (Article 222 TEC). They shall be appointed by the governments of the Member State for the period of six years, whereas the provision of one judge of each Member State has developed as an informal rule. In the course of enlargement the number of ECJ judges will be extend up to 27, i. e. the informal rule will persist in future. Then the nominated judges shall elect its President-in-Office from among its members, acting for the next three years. The President-in-Office then will hold the presidency in oral proceedings as well as in consultations (Craig/de Búrca 2001: 88 et seq.; Nugent 2006: 293).

Since 1989 there is in addition to the ECJ the ECJ of first instance, which is ahead of the ECJ. The ECJ of first instance is responsible especially for claims of EU staff members, concerning the ECSC treaty, for claims of corporations and associations, and concerning the TEC for legal actions of individuals and legal persons in competition issues. Unlike the ECJ, the ECJ of first instance does not have any Advocates General. The final applications are filed by a judge. The administrative body of the ECJ of first instance is provided by the general ECJ (Craig/de Búrca 2001: 90 et seq.; Nugent 2006: 297).

2.2 Functions, proceedings and responsibilities

Nowadays the major task of the ECJ is the monitoring of the compliance with the EC founding treaties as well as the monitoring of the legal acts of the different EU bodies. Furthermore the ECJ is responsible for the interpretation of the provisions of EU law, especially concerning the consistency and uniformity of the application (Nugent 2006: 306). The duties and responsibilities of the ECJ are mainly stipulated in article 220-245 TEC. Insofar the ECJ is ensuring the common interpretation and application of EC law (Heintzen 1994: 564; Hirsch 1996: 2463).

The Member States or bodies of the EU or all citizens of the EU are entitled for legal actions – in case that the basic rights of the TEC will be infringed. The language of the case can be one of the Member States ones, whereas the claimant decides it. If one of the parties will not be able to pay the procedural costs, it can apply for legal aid.

The first possible proceedings before the ECJ are infringement proceedings (Article 226 TEC); at this the Commission brings an action against a Member State which have failed to fulfil obligations under the Treaty (Nugent 2006: 300).

Secondly, legal instruments of the EU bodies can be challenged in terms of an action for nullification. The Member States, the European Council as well as the Commission are unlimited authorised to claim, whilst the capability of the European Parliament and the European Central Bank is limited to the necessary extent of maintenance of their rights. Additionally, the both last-mentioned institutions can file in a prohibit injunction, if a body of the EU does not meet its duties to the full extent in their opinion (Nugent 2006: 301 et seqq.).

Thirdly, national courts can apply for preliminary ruling procedures (Article 234 TEC), in cases where the European law is relevant. The ECJ will be asked by national courts for interpretation of contracts and legal acts of the EU; in that case, the national proceeding is disrupted until the decision of the ECJ is announced. Finally, Member States or also individuals and legal persons can file an action for failure to act, if e. g. the European Parliament or the Commission does not make a decision in an assumed urgent situation (Nugent 2006: 304).

Moreover, the ECJ is responsible for actions for failure to act against the Parliament, the Council or the Commission and for actions for damages which are based on non-contractual liability against Community institutions.

The decisions of the ECJ have notable effects on the Member States to some extent. Therefore, it plays a prominent role as “principle motor for the integration of Europe” concerning the discourse about Europe and its development in some studies (Bach 2005: 109).

Concerning the methods of interpretation of legal norms of EC law, there are some features in contrast to the common rules of interpretation. The first feature is that the sources of EC law do not have a consistent, binding linguistic version, but they are binding in 23 languages currently (Cf. article 314 TEC). Furthermore, interpretation problems can occur because of the linguistic inaccuracy of the primary law which is a result of complex political decision-making processes which are based on the meaning of a multitude of bodies respectively individuals. So, many of the norms are restricted to general wordings to give leeway to the community body and to enable a dynamic interpretation. The ECJ avails oneself in search of systematic closeness often of the so called judgmental comparative law, whereas it is searching for the best solution within the national provisions.

In addition, features appear concerning the interpretation of the treaties with regard to the whole purpose. The principle of effectiveness (effet utile) for instance concerns a specific form of interpretation with regard to the meaning and wording, namely the interpretation with respect to the aim of the treaties. According to this, the several regulations of the treaties shall be interpreted in a way to maximize the effectiveness. In particular, referring the effet utile the ECJ uses often to expand the provisions of primary law beyond the wording and to accord the community with competences and authorities which were not destined originally in such a way (Mosiek 2003: 6 et seqq.).

2.3 Relevant jurisdiction of the ECJ

The ECJ takes up a basically contrary stance concerning the below mentioned findings of the GFCC. It argues with the primacy of Community law which is effected by autonomy. Fundamental for this purpose is the decision in the Costa/ ENEL case from 1964.² In this case, the ECJ account for the autonomy of the Community as a start. But through the treaty of the EEC, the Member States were building up a superordinated and binding legal order, by transferring parts of their sovereign rights onto the Community. This results in an impossibility of the states to act subsequently one-sided against the accepted legal order. Especially, as a differing application depending on the internal legislation of each state would impair the aims of the EU, specified in article 10 para. 2 TEC. From this it follows that national law cannot take priority over EU law, unless its character as EU law is denied and unless the legal basis of the Community itself is called into question. It has to take in consideration that the decisions are also of political significance which is particularly expressed within the primacy of EC law over national law which effects the sovereignty of the Member States.

3 The German Federal Constitutional Court as the “guardian of the constitution”

3.1 Composition, structure and organisation

Established by the German Basic Law, from 1949 the German Federal Constitutional Court stands for a judicial infrastructure sui generic (Boehme-Nel3ler 2001: 372) . The GFCC is acting absolutely independent and autonomous as a constitutional body, beyond the control of the Federal Ministry of Justice or any other institution.³ In international comparison, the competences of the GFCC can be considered as very comprehensive (Rudzio 2006: 283).

Albeit the GFCC is primarily a court, it is also a constitutional body at the same time, as it is already mentioned in Article 1 of the act of the GFCC (Roellecke 1987: 669). Thus, the GFCC is a government body and its becoming, existence and constitutional activities constitute the state and ensures its unity and continuity (Benda/Klein 1991: 26). These characteristics lead to organisational consequences (Hesse 1995: 279). Hence, the German Federal Constitution Court holds a dual capacity; while it is on the one hand an independent constitutional body contrariwise it is as the judiciary a part of the government in the specific field of constitutional and international law. Even though it can be interpreted as a control entity of other courts, the GFCC is not a part of the appeal of stages, but it controls them as acts of the government like all other government bodies. Thereby will not a complete legal expertise take place, but an examination considering the standards of the constitutional law? From this perspective, the GFCC cannot be referred to as the highest German court (Boehme-Nel3ler 2001: 372).

The GFCC consists of sixteen judges, which are elected by the Federal Diet and the Federal Council, one half each, for a period of twelve years by a two-thirds majority. The Federal Diet delegates this function to an electoral committee, which consists of twelve delegates of all groups. All judges are supported by “staffs” of about three to four fully qualified lawyers – similar as in the ECJ. The judges are no subjects to the supervision; rather the chairman is each “primus inter pares” and has also in the case of an equal number of votes a decisive voice. Within the GFCC counts the so called “Macht der Acht” (Limbach 2001: 19).

Contrary to the ECJ, the GFCC is a so called “twin court”, i. e. that it consists of two senates with eight judges each, which have different primary areas of work and responsibility and which moreover act completely independent of each other. Thus the first senate is responsible for dispute settlement between citizen and government, whilst the second senate addresses primarily the disputes respectively conflicts between government bodies. Where doubt exists in respect of the unambiguous competence of one senate in a special case, the competence will be clarified by a “board of judges” and the case will be allocated to one of them (Boehme-Neßler 2001: 366).

3.2 Functions, proceedings and responsibilities

The main function of the GFCC is the interpretation of the German Basic Constitutional law and the decision in legal litigations.⁴ Only by focussing on this fundamental function, the GFCC will be able to secure and keep its authority which relies on the acceptance of its decision of all social powers (Wahl 1998: 105; Limbach 1997: 12).

As the GFCC has decided in an immense number of individual cases it is hard to strike a balance as regards content and methodology. Nevertheless, there are some prominent characteristics of the jurisdiction in evidence (Hesse 1998: 8 et seqq.).

First of all, the GFCC decided a priori in favour of a content based and tangible comprehension of the constitution at a great unambiguousness (Simon 1994: 1667). Procedural questions which are regulated by the constitution in detail are important. They provide the basis to contain political disposal and thereby they ensure the freedom of the citizens. Nevertheless, form and procedure are not values by themselves but they answer a purpose: to accomplish a suitable order for the state (Hesse 1998: 8).

Secondly, the parliamentary council incorporates an extensive list of basic right into the constitution (Article 5 para. 3). With regard to constitutional politics this was a novelty as basic constitutional rights had no prominent role, neither in the awareness of the citizens nor in the actions of the state hitherto. Therefore, it was on the GFCC to animate the basic constitutional rights by its interpretation and thereby to provide them with validity in the daily life. The power of interpretation and its extensive effect is based on the primacy of the constitution which is expressed in article 1 para. 3 and article 20 para. 3 of the German Basic Law (Simon 1994: 1661 et seq.).

The legal effect of GFCC decisions concerning the judgment of laws is unambiguous. If the GFCC determines that a law is contradicting the constitution, the decisions will be enacted and valid for everyone.⁵ In general, the formal binding character of the GFCC decisions is only effective in precise cases. There is no binding character concerning the content of the decision for other courts and the will not be considered as a law.⁶

3.3 Relevant jurisdiction of the GFCC

In Germany, the hierarchy between national and community law is primarily discussed in conjunction with the question to guarantee compliance with the German Basic Law (Constantinesco 1977: 713). This is mainly caused by the possibility of the citizens for constitutional complaint which is conceded by the German Basic Law. Thus, Germany is disposed of an explicit jurisdiction concerning the basic laws and is therefore responding sensitive in particular in this area.

3.3.1 The “Solange I” decision

The so called ‘Solange 1’⁷ decision was already taken in 1974. In spite of the contrary notion of the ECJ, the GFCC states that as long as the Community law does not include a list of basic rights analogous with the German Basic Constitutional Law, every court is authorised and obliged to submit the regulation with an important bearing on the decision to the GFCC according to article 100 para. 1 German Basic Law. Thus, the GFCC acts on the assumption of basical primacy of EC law which is limited by the German Basic Law. This limitation becomes irrelevant if there would exist a list of basic rights on the community level. As there was not such a list at that time, the GFCC reserves the right to decide about compatibility of basic rights and community law.

3.3.2 The “Solange II” decision

With the „Solange II”⁸ decision from 1986 the GFCC revised its jurisdiction concerning the verification of the compatibility of legal actions of the European Communities with the German constitutional law. By way of derogation from the “Solange I” decision, the GFCC treated the protection by the constitution through the ECJ as adequate and claimed its competence. This considers „solange [der EuGH] einen wirksamen Schutz der Grundrechte gegenüber der Hoheitsgewalt der Gemeinschaften generell gewährleistet.“⁹

Hence, the GFCC clarifies that there exists a protection by the constitution on the community level from now on which fulfils the requirements of the GFCC. Consequently, the GFCC leaves the protection by the constitution to the ECJ (Schlaich/ Korioth 2004: 359, marginal number 359).

Nevertheless, attention should be paid to the reservation, included in the decision: The GFCC abandoned the exercise of its jurisdiction only insofar and as long as the protection by constitutional law on the community level is generally and adequately ensured by the ECJ. Moreover, this protection has to guarantee the essential content of the fundamental rights and thereby the minimum standard granted by the basic constitutional law.

3.3.3 The “Maastricht” decision (1993)

Within its “Maastricht”¹⁰ decision, the GFCC has pointed out that it is practising its jurisdiction in cooperation with the ECJ. At the same time, the GFCC reserves the competence to declare the so called ausbrechende Rechtsakte of the community as non­binding. That means, if the Community is enacting a provision for which the Member States do not have allocated it by competences for jurisdiction by the Treaty (Vachek 1997: 144, 151; Schlaich/ Korioth 2004: 252, marginal number 360).

Insofar, the differentiation between admissible interpretation of the Treaties and inadmissible amendment of the Treaties through the judicature of the ECJ becomes important. Indeed the case law falls into the field of responsibility of the ECJ, the right to exhaust remedies – through an amendment of the Treaty – remains within the exclusive competence of the Member States from the GFCC’s point of view (Kirchhof 1998: 173).

Primarily, the Maastricht decision is in line with the Solange II decision. The new established perception of a cooperative relation means a kind of task sharing between the GFCC and the ECJ in which the GFCC reserves its right to intervene if the protection by the constitution on the community level falls below the German basic rights.

In summary, the Maastricht decision allows a conflict between the GFCC and the ECJ in a strictness which was unknown hitherto, as the jurisdiction of the ECJ states explicitly that there is no national provision – regardless of which nature – that can take priority over community law. This principle of direct effect can be interpreted as an outcome of a kind of political activism of the ECJ. It is beyond question and confirmed by the GFCC explicitly (Limbach 2001: 81).

[...]

¹ From 1967: European Community (EC), the today’s European Union (EU).

² EuGHE 1964, 1251 (1269 et seq.) – Rs. 6/64 „Costa/ENEL“ (q. v. Craig/de Búrca 2001: 277).

³ Cf. Basic Constitutional Law Article 93 (competence of the GFCC), 97 (judicial autonomy) and 100 (legal presentations to the GFCC).

⁴ Instructive BVerfGE 51, 130, 143.

⁵ Cf. Article 31 para. 2 BVerfGG, http://bundesrecht.juris.de/bverfgg/ 31.html (10.04.2008).

⁶ Cf. Article 31 para. 1 BVerfGG, http://bundesrecht.juris.de/bverfgg/ 31.html (10.04.2008).

⁷ BVerfGE 37, 271 et seqq. „Solange I“, http://www.servat.unibe.ch/dfr/bv037271.html (10.04.2008).

⁸ BVerfGE 2 BvR 197/83; http://www.servat.unibe.ch/dfr/bv073339.html (10.04.2008).

⁹ „as long as (the ECJ) ensures an effective protection of the basic rights against the sovereignty of the Communities“.

¹⁰ BVerfGE 2 BvR 2134/92; http://www.servat.unibe.ch/law/dfr/bv089155.html (10.04.2008).