The Relations between the German Constitutional Court, the Court of Justice of the European Communities and the European Court of Human Rights in light of Human Rights Protection

TABLE OF CONTENT

I. Introduction

II. The relations - BVerfG & ECourtHR
1. The nature of the ECHR in the constitutional system
2. The effect of the ECourtHR judgments
3. ECHR as the lowest common denominator
4. Duty to comply

III. The relations - BVerfG & ECJ
1. Supremacy of ECJ ruling in protection of fundamental rights
2. Relativized supremacy in ruling on competence
3. Relations of cooperation
3. “Maastricht” reservations still applicable
4. Supremacy of ECJ, also for fundamental rights, as long as it stays within its competences?

IV. ECJ
1. Human rights in the ECJ jurisprudence
2. ECJ-ECourtHR relations (ECHR in the ECJ jurisprudence)
3. Effective protection of individuals in front of ECJ
3.1. Locus standi of individuals
3.2. Preliminary rulings - cooperation with national courts
3.3. Instruments for the individual
4. Turning to ECourtHR

V. ECourtHR
1. ECourtHR confronted with EC law
1.1. The first case
1.2. Developing the “M&Co.” doctrine - equivalent protection
1.3. “Cantoni”
1.4. “Matthews”
1.5. “Waite and Kennedy” & “Beer and Regan”
1.6. “Posti and Rahko”
1.7. “Senator Lines”
2. The Bosphorus case
2.1. Considerations of the case
2.2. Revision of the “M&Co.” doctrine on a particular case
2.3. Concurring opinion - stronger critique

VI. Conclusions & recommendations

Bibliography

List of Courts’ Decisions

List of abbreviations

I. Introduction

The modern system or systems of protection of human rights in Europe have been developing together with, as well as within the processes of European integration. These processes started on an intergovernmental level, by the founding of the Council of Europe in 1949, after the end of the Second World War, with the main intention to prevent future devastations and severe violations of human rights in Europe. In 1950 the Member States of the Council of Europe committed to respecting the rights and values expressed in the European Convention on Human Rights (in further text ECHR). The implementation and continuous respect of the ECHR is monitored by the European Court of Human Rights (in further text ECourtHR), according to the criteria set forth by international law. Parallel to that process, another one, mainly in the field of economic integration, was marked by the establishment of the European Coal and Steel Community in 1952, the European Atomic Energy Community and the European Economic Community in 1957 (in further text the European Community/Communities or EC). By “limitation of sovereignty or a transfer of powers from the states to the community”, a new “legal system” was created, which “by contrast with ordinary international treaties (…) on the entry into force of the treaty, became an integral part of the legal systems of the member states”¹. Thus, in the frameworks of its role as gatekeeper of Community law, the European Court of Justice (in further text ECJ) confirmed the creation of a new sui generis organization.

The fact that the States are entering various forms of international cooperation has created various legal orders. These legal orders stand parallel to one another, but additionally interfere in the other legal space thus creating overlapping situations. It is also unrealistic to expect that the legal orders are mutually untouchable, since the actors involved in their creation and the subjects of their effect also overlap. For example, all the Member States of the European Union are at the same time Signatory Parties to the ECHR. The European Courts are entrusted with the task to safeguard the normal functioning of these systems, each drawing its competences from the basic and other numerous legal texts. Besides the variety of legal documents existing for the purpose of sustainability of the system, these projects are not complete and are continuously developing in the pursuit of democratic values. Similarly, the national courts ensure the protection of the domestic legal system relying on the Constitution. Also here, democracy is not given once for all, but requires constant renewal and adaptation to new realities. However, at the same time it is important not to forget the individual to whose benefit integration and international cooperation happens in the first place. Special care should be taken that the adjustment is not made at the expense of the legal certainty of the individual. And this is primarily the task of the third power, which makes sure that individual rights are not lost in the labyrinth of legal documents.

The purpose of this paper is to examine the various interactions among the various courts, the levels of interaction and the implications to the individual. This will be done on the example of the German Federal Constitutional Court for the national level, the Court of Justice of the European Communities and the European Court of Human Rights.

To begin with, each chapter will analyze the court at issue, primarily connected to the problematic points of its competences and their application in the practice of the jurisprudence. The ECJ does not have direct competences to protect human rights at the level of the European Communities. Furthermore, the ECourtHR has competence only to examine infringements of human rights by the Member States individually, as the European Union is not a signatory party to the Convention. The constitutional guarantees of the member states are still the main point of departure for human rights protection. Nevertheless, the evolution of the integration from a customs to a political union, “founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”² and the related developments of the case-law, shows that it is not possible to draw rigid lines. Thus, both courts have referred to each other’s case-law in the exercise of judicial dialogue on a European level, also in the field of human rights.

The text will demonstrate the complex jurisprudence developed by the different courts and will reflect on the conflicts which burden the successful fulfillment of the courts’ job. Thus, in each of the chapters, the court at issue will not be regarded isolated from the other courts. On the contrary, the perplexing relations between the national and international, national and supranational, as well as supranational and international level will be in the center of the analysis. It will be shown that at different points in time and regarding different matters of interest, the courts have either been distanced from each other or have been brought together.

Either way, it is notable that the courts have been taking into account the existence of another legal order and another court’s jurisprudence, which has lead to a steady crystallization of the level playing field of each court. Thus, the German Federal Constitutional Court has given up³ on measuring the decisions of the ECJ onto the guarantees of fundamental rights provided under the Basic Law⁴. It had also undertaken decisive steps in the direction of avoiding divergence with the ECourtHR⁵. The ECJ has acknowledged the importance of complementary protection of individual rights Europe-wide and therefore has started to make references to the ECourtHR case-law⁶. The ECourtHR has taken notice of the existence of the European Union as a legal sphere of its own and has started taking up cases of possible violations of human rights by a Member State of the EC, committed indirectly through actions or acts coming from the State’s membership to the European Community⁷. However, the current situation is still far from satisfactory with regard to the legal certainty of the individual. Instead of having the international cooperation serve as an added value to human rights protection Europe-wide, there is a real danger that individual rights get lost in the labyrinth of legal instruments and institutions.

This is why this paper gives special focus on one of the latest⁸ decisions of the ECourtHR. The Bosphorus⁹ decision incorporates the issues and dilemmas tackled in previous decisions, and proposes an answer of its own on how to reconcile the at times diverging, at times complementary judicial protection offered to the individual by the different legal orders. Even before this decision of the ECourtHR, the question of possible violations of fundamental rights by EU institutions, in which field the ECJ does not have direct access to checking and making corrections, has been a subject of many discussions. This is especially done in the light of the right to effective judicial protection. While individuals have direct access to the ECourtHR, this right remains rather limited when it comes to access to ECJ under the provisions of the law of the European Communities. Therefore it is understandable why this decision has stirred up discussions on whether the ECourtHR has, with this decision, distorted the parallelism of the existing judicial systems¹⁰. Or as some call it, it’s the “ultimate test- case”¹¹ in this context. The judgment sets out clear guidelines for dealing with future cases, at least when it comes to the ECourtHR. Post festum it is essential to ask if the ECourtHR will come out as a last-instance court, which will have the final word in complex legal situations. It is also essential to examine what would the consequences for the future relations of all the courts be. Lastly it is important to see if there will be any implications to future developments of European law.

II. The relations - BVerfG & ECourtHR

1. The nature of the ECHR in the constitutional system

Once having taken the responsibility of international cooperation, with the purpose of preserving values that go beyond the authority of the national state, a country is responsible for abiding to those commitments. As an example of intergovernmental cooperation, the ECHR is to be ratified by the signatory state, thus becoming a part of the domestic legal order. As such it is to be respected and applied by the national authorities obliging them to provide “an effective” (Article 13) protection of the guarantees set forth by the Convention. Since the Convention leaves the choice of means of complying to it, open for the contracting parties, the German Constitutional Court (in further text BVerfG) is in line with the provisions of the ECHR, also by classifying it on the rang of a “federal statute”¹². According to Art. 59.2 of the German Basic Law, the ECHR entered into force after the proclamation of the “Act on the Convention for the Protection of Human Rights and Fundamental Freedoms”. National Courts “must observe and apply the Convention within the limits of methodically justifiable interpretation like other statute law of the Federal Government”¹³ and therefore “by reason of this status in the hierarchy of norms, the guarantees of the ECHR and its protocols are not a direct constitutional standard of review in the German legal system”¹⁴. This way, it seems that the German Constitutional Court does not tell us anything new, 52 years after the conclusion¹⁵ of the Legal affairs Committee of the German Bundestag not to accept a constitution-like rang of the ECHR. One might even be surprised by the fact that this Order of the Second Senate of the Court comes as justification of an individual constitutional complaint, challenging an order of the Naumburg Higher Regional Court, which using the arguments that the “ECHR has a status as a ordinary statutory law below the level of the constitution” and “the ECourtHR was not functionally a higher-ranking court in relation to the courts of the States parties”¹⁶, concludes that “neither in interpreting the ECHR nor in interpreting national fundamental rights could domestic courts be bound by the decisions of the ECourtHR”¹⁷. One must read in between the lines, or better to say, further down the lines in order to understand the intention of the BVerfG in this order.

2. The effect of the ECourtHR judgments

One important assignment of the BVerfG, as a protector of the Basic Law, is to interpret it in accordance to the commitments taken under the public international law. And “the Basic Law is intended to achieve comprehensive commitment to international law, cross-border cooperation and political integration in a gradually developing international community of democratic states under the rule of law”¹⁸. The ECHR is an agreement under public international law. A European Court of Human Rights is established as a judicial instrument “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols” (Article 19 ECHR). The ECourtHR already has a difficult task in achieving this, as its judgments are of declarative nature. The ECHR stipulates that the “High Contracting parties undertake to abide by the final judgment of the Court in any case to which they are parties” (Article 46 ECHR), and a “just satisfaction” (Article 41 ECHR) in form of reparation to the injured party may be offered. Apart from this there is “no judgment of cassation that would directly quash the challenged measure of the State party”¹⁹. “In principle, the decision obliges the State party affected with regard to the matter in dispute to restore, if possible, the state of affairs without the declared violation of the Convention”²⁰. It is reasonable to expect that in reopening of proceedings in front of the national court, where a judgment was based on a violation of the ECHR, corroborated by a decision of the ECourtHR, the national court would change its original decision, provided that the factual situation has not changed. This argument, regarding the facts of the case, shouldn’t be used as an excuse of the courts to escape international obligations. In the case of the matter, which initiated the Order of the BVerfG, the Naumburg Higher Regional Court found that “as result of the passage of time, both the relevant factual position and the substantive and procedural legal position had since changed with lasting effect. If only for this reason, there could be no binding of any nature to the decision of the ECourtHR, which did not deal with purely procedural questions of temporary protection of the law”²¹. The BVerfG was not of the same opinion. It sees the Constitution not as an obstacle, but as a guarantee of the ECHR. As the ECHR is a part of the domestic legal system, and this way in compliance with the constitutional system, any failure to enforce a decision of the ECourtHR could mean a violation of this system and of the fundamental rights, which take up the highest position in this hierarchy. It is for the sake of protection of the fundamental rights that international cooperation among peaceful and free states occurs. Or, also fundamental rights should always be kept in front when international cooperation occurs, for whatever other reason. This is why the Basic Law opens the sovereign space of the Federal Republic to international law connections, without waiving it. “Domestic law must if possible be interpreted in harmony with public international law, regardless of the date when it comes into force”²². This way, although formally given the rank of federal statute, the ECHR cannot be waived by the adoption of a later law that could derogate it. In this sense de facto not entirely the same rules apply for the ECHR as for the relations between two other domestic statutes, where a later statute derogates a previously adopted one. Furthermore the BVerfG concludes that “the guarantees of the Convention influence the interpretation of the fundamental rights and constitutional principles of the Basic Law. The text of the Convention and the case-law of the ECourtHR serve, on the level of constitutional law, as guides to interpretation in determining the content and scope of fundamental rights and constitutional principles of the Basic Law, provided that this does not lead to a restriction or reduction of protection of the individual’s fundamental rights under the Basic Law - and this the Convention does not desire (Article 53)”²³. It is recommended that the ECHR is “taken into account in the interpretation of domestic law, including fundamental rights and constitutional guarantees”²⁴. This does not happen automatically, but based on a decision by the ECourtHR, interpreting the ECHR in the particular case. “If the ECourtHR has declared a domestic provision to be contrary to the Convention, either this provision may be interpreted in conformity with public international law when applied in practice by the courts, or the legislature has the possibility of altering this domestic provision that is incompatible with the Convention”²⁵. Examples from the domestic legislation confirm this, for example the amending of the Code of Criminal Procedure in 1998. Furthermore, “exceptionally if the legislature does not comply with the law of international agreements, there is no contradiction with the aim of commitment to international law, provided this is the only way in which a violation of the fundamental principles of the constitution can be averted”²⁶. The obligation of compliance is however more explicitly stated in the Order when referring to administrative provisions, rather than judicial decisions. Still even in this case, the BVerfG has allowed national courts a possibility of “continuing violation” of a decision of the ECourtHR, restricted precisely to cases of “multipolar fundamental rights situations”²⁷, or in other words in cases of conflicting fundamental rights between private individuals. Even there, “it is the task of the domestic courts to integrate a decision of the ECourtHR into the relevant partial legal area of the national legal system, because it cannot be desired result of the international law-basis nor express the will of the ECHR for the ECourtHR through its decisions itself to undertake directly any necessary adjustments within a domestic partial legal system²⁸ ”.

3. ECHR as the lowest common denominator

In this respect, through this Order the BVerfG wanted to make sure that the sovereign space of the Federal Republic of Germany is open enough for the effective implementation of the ECourtHR decisions. The ECourtHR is not equipped with the executing instruments such as the ones at disposal for the implementation of a supranational decision. If the ECourtHR is not to be seen as a supreme court to other national courts, the supremacy of its decisions is thus not to be brought in question. If the BVerfG uses the formulation “take into account”²⁹ or “duly consider”³⁰, there are other national courts which are even more explicit in their considerations of the decisions of the ECourtHR as “supreme”³¹. From this it cannot be concluded that with the interpretations given in this Order the BVerfG intends to limit the scope of application of the decisions of the ECourtHR, since the BVerfG also sees the decisions of the ECourtHR in proceedings against other States’ parties as an opportunity for the non-involved states “to examine their domestic legal systems and orient to the relevant case law of the ECourtHR”³². And this already goes beyond the scope of application only to the matter in question.

Furthermore, although formally not recognizing a status equal of a Constitution, practically the result of this Order is the acknowledgment of constitution-like elements for the ECHR inside the national legal area. The fact the ECHR serves as a guideline of “the content and scope of the fundamental rights and constitutional principles of the Basic Law”³³, indirectly it concerns the BVerfG and its decisions. Apart from being “indirectly in the service of enforcing international law”³⁴ by “preventing and removing, if possible, violations of public international law that consist in the incorrect application or non-observance by German Courts of international law obligations”³⁵, the BVerfG omits to make any other reference to its own actions. There is not even a remote mention about cases of contradicting jurisprudence between the BVerfG and the ECourtHR. The Order in issue is as a result of an individual constitutional complaint against a Higher Regional Court. Even so, the BVerfG does not use the occasion to refer to the fact that this same year there have been other diverging decisions³⁶ between the BVerfG and the ECourtHR, which is only a fresh example of what has been a situation also previously. It is hard to believe that the compliance with the constitutional and through them the international commitments, which the BVerfG requests from the national authorities, should escape its own responsibility! Diverging jurisprudence between the two courts has been shifting from more liberal³⁷ on the side of the BVerfG to more restrictive³⁸ and vice versa in comparison to the ECourtHR. Desirable or only permissible should be only the first case, according to the principle of favourability, enshrined in Article 53 of the ECHR: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party”. As it is obvious from this that the ECHR’s intention is to serve as the lowest common denominator Europe-wide, it could be useful if the courts of the contracting parties take it into consideration when interpreting national law. More is also not to be expected, as the interpretation of the Convention is in the competence of the ECourtHR established for that purpose. For the sake of legal certainty and protection of the individual, the national authorities should respect and implement the decisions of the ECourtHR. Thus also the BVerfG: “The binding effect of a decision of the ECourtHR extends to all state bodies and in principle imposes on these an obligation, within their jurisdiction and without violating the binding effect of statute and law (Article 20.3 of the Basic law) to end a continuing violation of the Convention and to create a situation that complies with the Convention”³⁹. This way it would be against the nature of the constitutionally based international cooperation, if the interpretation of the Constitution would be done in a way that minimizes the achievements stemming from this cooperation. And although not explicitly mentioned, shouldn’t the formulation “to all state bodies” be implicitly understood as also to the highest national court? The criticism⁴⁰ that the BVerfG fears a possible subordination under the ‘control’ of the ECourtHR is understandable, because the ECHR is not a “ direct constitutional standard of review in the German legal system”⁴¹ and it leaves just an open “ possibility ” for altering a national provision which was found incompatible with the Convention, that thus reformed would apply to future similar cases, and there is “no conclusive answer” as to “how the Federal Republic of Germany, if ECHR rules against it, is to react in other rules of procedure, if national court proceedings have been completed and are non-appealable”⁴².

4. Duty to comply

Nevertheless, by its conclusions in the Order, the BVerfG underpins the need for compatibility between the two legal orders (the national and international) and one way of achieving this is by interpretation of the Basic Law “in such a way that no conflict arises with duties of the Federal Republic of Germany under public international law”⁴³. Because for the purpose of legal certainty for the individual, it is legally essential that legal protection is ensured by a competent court which would have the final word, even if it is not officially called a supreme court. “The Basic Law has granted the general rules of public international law priority over ordinary statute law (…) and has integrated the law of international agreements (…) into the system of separation of powers”⁴⁴. In this sense, the intention of the BVerfG to avoid diverging jurisprudence with the ECourtHR is implicit.

III. The relations - BVerfG & ECJ

If the sovereign space of a national state opens towards international cooperation and public international law, the implications for national sovereignty are even more far-reaching when there is not only international cooperation, but also integration taking place. When entering the family of states, calling itself European Community, the national states commit to giving up certain aspects of their sovereign powers. Ever since the revolutionary decisions⁴⁵ of the ECJ, entrusted with the safeguarding of the new legal order, which came into force by the signing of the Treaty establishing the European Communities, the supremacy of the European law over national law is to be treated as self-evident, unlike “ordinary international treaties”⁴⁶. This goes, therefore, equally for the decisions of the ECJ and the CFI, which are responsible, “each within its jurisdiction (….) to ensure that in the interpretation and application of this Treaty the law is observed”⁴⁷. Both the Member States and the High Contracting Parties are bound by the decisions of the ECJ (respectively CFI) and the ECourtHR, each according to the provisions under Article 228 of the TEC/ Article 46 of the ECHR, however, the decisions of the ECJ (CFI) seem more binding, for the most part because of the different quality of the legal orders and thus the availability of different instruments for securing proper implementation.

1. Supremacy of ECJ ruling in protection of fundamental rights

The BVerfG seems inspired by this line of reasoning. To begin with, in its first decision⁴⁸, in the line of distinguishable decisions, concerning individual fundamental rights, it found that, by reserving to exercise its sovereign powers, it will re-examine decisions of the ECJ, if the Community law, upon which the ECJ decision rests, collides with a fundamental right guaranteed under the Basic Law. This will be done as long as the integration process has not advanced enough, as to provide a catalogue of fundamental rights that would be adequate compared to the catalogue provided in the Basic Law⁴⁹. Twelve years later⁵⁰, but still not after a Catalogue of fundamental rights⁵¹ was developed on a Community level, the BVerfG withdrew from checking if the decisions of the ECJ accord to the provisions in the Basic Law, “as long as the European Community, including the jurisprudence of the ECJ, ensure an effective protection of fundamental rights in the sovereign space of the Communities, which corresponds in substance to the inalienable protection of the fundamental rights vouched by the Basic Law, the more so as to the substance of the fundamental rights in general”⁵². Ever since the “Solange II” decision, the BVerfG accepts the supremacy of the European law as a matter per se, since both the material and procedural preconditions are provided for on a European level, in order to make sure that the fundamental rights are preserved. Following this line of reasoning, on another occasion, an individual constitutional complaint, claiming that the decision of the ECJ infringes a certain individual right foreseen by the Basic Law, was rejected by the BVerfG, as it did not find that the ECJ decision “has brought the inalienable protection of the fundamental rights, vouched by the Basic Law, into question”⁵³.

The same year, further decision⁵⁴ was adopted, which concluded that also for future cases, “a question raised by a national court or individual constitutional complaint, alleging infringements of the fundamental rights of the Basic law, imposed by the secondary Community law, have to argue in particular, that the respective inalienable protection of the fundamental rights vouched by the Basic Law is generally not respected”⁵⁵. So, not only for the matter of subject, as in “Alcan”⁵⁶, but generally, and not only regarding decisions of the ECJ, but the whole European law, the BVerfG retreats before the last-instance competence of the ECJ. This way, following the spirit of the “Solange II” decision, the BVerfG is undoubtedly in line with the ECJ’s understanding of the supremacy of the supranational legal order. Although it is perfectly understandable, that after the transfer of certain sovereign powers to the Community and the agreement of national states to limit their own actions, the BVerfG should step back behind a ‘higher’ court, or in other words a court competent on that level, it is interesting that the BVerfG does this only for the field of fundamental rights. What is more, it restricts itself from exercising its own competences under the Basic Law in the wake of a Court, which is not even a human rights court!

2. Relativized supremacy in ruling on competence

In its famous “Maastricht”⁵⁷ decision, the BVerfG acknowledges the existence of the supranational European Community and accordingly the competences of a Court established to observe the interpretation and application of the Treaty law. However, from a slightly different perspective than the ECJ: not as a “community of unlimited duration”⁵⁸, whose own legal capacity, created on the base of “reciprocity” of willing states, excludes national measures, “inconsistent with that legal system”, but rather as a “Staatenverbund”⁵⁹ of a long- term duration, where a Member State sustains its sovereign right to cancel its membership at any point in time. The Treaty does not enable “unlimited” transfer of powers to the Community and its posts, and accordingly the BVerfG “reviews if legal acts of the European institutions and organs are within the scope of the granted sovereignty or exceed it”⁶⁰. It is therefore especially interesting that in the same decision, the BVerfG averts from its skepticism and places a high amount of trust in the ECJ, when it comes to the preservation of an especially sensitive area, such as the fundamental rights. “Solange II” compatible, also here “the BVerfG ensures that an effective protection of the fundamental rights of the inhabitants of Germany also within the sovereign space of the Communities is generally preserved, which corresponds in substance to the inalienable protection of the fundamental rights vouched by the Basic Law”⁶¹. The protection of the fundamental rights in particular is left up to the ECJ.

This practically means that the BVerfG would only be doing this review in theory. Making sure that on a European level fundamental rights are generally preserved and correspond in substance with the ones coming from national constitutional traditions means that the BVerfG will not be checking in particular cases, also because it is practically impossible to do so. This would mean that the BVerfG would not only have to possess good knowledge of the entire European law, but also adopt a role it has not the legal basis for. By using this formulation in its decisions, the BVerfG clearly wanted to avoid this. And if individuals, according to the “Bannanenmarktordnung”⁶² decision “have to argue in particular, that the respective inalienable protection of the fundamental rights vouched by the Basic Law is generally not respected” on a European level, then this practically means that an intervention of the BVerfG is out of the question. In other words, in order to win its case and receive satisfaction for an alleged infringement of his/her rights by a Community act or action, the individual would have to prove that that the level of protection has generally decreased⁶³ and having the current legal structure of the Community in mind, for the time being this remains impossible.

The ECJ may not have direct competences in interpreting human rights on a European level, for which purpose it borrows rights⁶⁴ from the ECHR and refers to the jurisprudence of the ECourtHR, but it undoubtedly has competence over the Community Law. Therefore it would be against the purpose of a supranational legal order if a national court would unilaterally measure it on the scale of the domestic legal provisions. In light of the functional attainment of the prescribed supremacy of this legal order and of the ECJ as its guardian, are the reservations regarding exercise of the competencies of the BVerfG in the field of fundamental rights to be understood. As to why the BVerfG will not check the compatibility of the Community Law with the Basic Law only in connection to the fundamental rights, but will do so in any other occasion remains unclear. Luckily, this debate has so far had only theoretical⁶⁵ repercussions.

3. Relations of cooperation

In any case it has a lot to do with the complexity of relations between and among the different national and European courts (BVerfG, ECJ and EChourtHR). From the perspective of the BVerfG, it cooperates ⁶⁶ with the ECJ when exercising its jurisprudence over the application of community law in Germany in general terms. In light of the above elaborated considerations, the BVerfG also practically demonstrates this. A more critical understanding would be that the idea behind this cooperation is a hidden concept of control⁶⁷ over the authority of the ECJ and indirectly the Community for that matter. Extra problematic is if this cooperation should be interpreted in the sense of Article 234 of the TEC?! This adds up to the argumentation as to why in particular the BVerfG is a national Court of interest, having its jurisprudence in mind. The fact that the BVerfG is a Court, which exceptionally, unlike other Constitutional Courts (the French Conseil d´Etat, the British House of Lords, the Belgian, Dutch, Luxembourgian, Irish, Greek, Swedish, Finnish, Austrian, Danish highest Courts)⁶⁸ has not yet raised a question before the ECJ, under Article 234, TEC, contributes to the discussion about the complexity of relations among the national and European courts. It is unlikely that all questions raised in front of the BVerfG have so far been “irrelevant to EC law

[...]

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¹ ECJ, Case C-6/64, Costa/E.N.E.L.,1964, I-00585, point 3.

² Treaty on the European Union, Maastricht 1992, Art.6(1).

³ See Chapter III.

⁴ The Federal German Grundgesetz (Constitution).

⁵ See Chapter II.

⁶ See Chapter IV.

⁷ See Chapter V.

⁸ Latest in the sense of last from line of decisions of the ECourtHR treating EC law.

⁹ ECourtHR, Bosphorus Hava Yollari Turizm v. Ireland, (30th June 2005), App. No.45036/98 available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Bosphorus&sessioni d=5885537&skin=hudoc-en

¹⁰ See for example Heer-Reissmann, Christine, „Strasbourg oder Luxembourg?-Der EGMR zum Grundrechtschutz bei Verordnungen der EG in der Rechtsache Bosphorus“, Neue Juristische Wochenschrift, Heft 4/2006, p. 192-194; Broehmer, Juergen, „Die Bosphorus-Entscheidung des Europaeischen Gerichtshofs fuer Menschenrechte“, Europaeische Zeitschrift fuer Wirtschaftrecht, Heft 3/2006, p.71-76.

¹¹ Lavranos, Nikolaos, „Das So-Lange-Prinzip im Verhaeltnis von EGMR und EUGH-Anmerkung zu dem Urteil der EGMR v. 30.06.2005, Rs. 450 36/98“, Europarecht, Heft I, Januar/Februar 2006, p.79.

¹² BVerfG, Order of the Second Senate of 14 October 2004, (2 BvR 1481/04), point 30.

¹³ Ibid., point 32.

¹⁴ Ibid., point 32.

¹⁵ Pache, Eckhard, “Die Europäische Menschenrechtskonvention und die deutsche Rechtsordnung”, EuR, Heft 3, 2004, p.401.

¹⁶ BVerfG, Order of the Second Senate of 14 October 2004, (2 BvR 1481/04), point 18.

¹⁷ Ibid., point 18.

¹⁸ Ibid., point 36.

¹⁹ Ibid., point 40.

²⁰ Ibid., point 41.

²¹ Ibid., point 19.

²² Ibid., point 48.

²³ Ibid., point 32.

²⁴ Ibid., point 30.

²⁵ Ibid., point 51.

²⁶ Ibid., point 35.

²⁷ Ibid., point 50.

²⁸ Ibid., point 58.

²⁹ Ibid., point 30.

³⁰ Ibid., point 62.

³¹ BVerwG, NVwZ 2000, p.810.

³² BVerfG, Order of the Second Senate of 14 October 2004, (2 BvR 1481/04), point 39.

³³ Ibid., point 32.

³⁴ Ibid., point 61.

³⁵ Ibid., point 61.

³⁶ ECourtHR, Caroline von Hannover v. Germany, (24 June 2004), Appl. No. 59320/00.

³⁷ ECourtHR, Lucia Dahlab v. Switzerland, (15 February 2001), Appl. No. 42393/98, and BVerfG, Decision from 24.9.2003, 2 BvR 1436/02.

³⁸ For example in the law concerning foreigners, see Bergmann, Jan, “Das Bundesverfassungsgericht in Europa”, EuGRZ 2004, p. 623.

³⁹ BVerfG, Order of the Second Senate of 14 October 2004, (2 BvR 1481/04), point 30.

⁴⁰ Expressed by Bergmann (2004), Limbach, Jutta, “Die Kooperation der Gerichte in der zukünftigen europäischen Grundrechtsarchitektur-Ein Beitrag zur Neubestimmung des Verhältnisses von Bundesverfassungsgericht, Gerichtshof der europäischen Gemeinschaften und Europäischem Gerichtshof für Menschenrechte“, EuGRZ 2000, p. 417-420 and Jaeger, Renate, „Menschenrechtsschutz im Herzen Europas-Zur Kooperation des Bundesverfassungsgerichts mit dem Europäischen Gerichtshof für Menschenrechte und dem Gerichtshof der Europäischen Gemeinschaften“, EuGRZ 2005, p.193-204.

⁴¹ BVerfG, Order of the Second Senate of 14 October 2004, (2 BvR 1481/04), point 32.

⁴² Ibid., point 55.

⁴³ Ibid., point 33.

⁴⁴ Ibid., point 33.

⁴⁵ ECJ, Cases 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration,1963, I-00001 and 6/64 Costa./.E.N.E.L,1964, I-00585.

⁴⁶ ECJ, Case 6/64 Costa./.E.N.E.L.,1964, I-00585, point 3.

⁴⁷ Article 220, Treaty establishing the European Communities (TEC). 13

⁴⁸ BVerfG, “Solange I”- Decision from 29.5.1974 (BVerfGE 37, 271ff.).

⁴⁹ See the original of the decision: “Solange der Integrationsprozess der Gemeinschaft nicht so weit fortgeschritten ist, dass das Gemeinschaftsrecht auch einen vom Parlament beschlossenen und in Geltung stehenden formulierten Katalog von Grundrechte enthält, der dem Grundrechtskatalog des Grundgesetzes adäquat ist, ist nach Einholung der in Art. 177 des Vertrags [Art. 234 EGV n.F.] geforderten Entscheidung des Europäischen Gerichtshofes die Vorlage eines Gerichts der Bundesrepublik Deutschland an das Bundesverfassungsgericht im Normenkontrollverfahren zulässig und geboten, wenn das Gericht die für es entscheidungserhebliche Vorschrift des Gemeinschaftsrechts in der vom Europäischen Gerichtshof gegebenen Auslegung für unanwendbar hält, weil und soweit sie mit einem der Grundrechte des Grundgesetzes kollidiert“, p.285.

⁵⁰ BVerfG, „Solange II“-Decision from 22.10.1986 (BVerfGE 73, 339 ff.).

⁵¹ A „Charter of Fundamental Rights of the European Union“ was adopted at the European Council on 7th December 2000 in Nice and has no legally binding effect.

⁵² See the original of the decision: “Solange die Europäischen Gemeinschaften, insbesondere die Rechtsprechung des Gerichtshofs der Gemeinschaften einen wirksamen Schutz der Grundrechte gegenüber der Hoheitsgewalt der Gemeinschaften generell gewährleisten, der dem vom Grundgesetz als unabdingbar gebotenen Grundrechtsschutz im Wesentlichen gleich zu achten ist, zumal den Wesensgehalt der Grundrechte generell verbürgt, wird das Bundesverfassungsgericht seine Gerichtsbarkeit über die Anwendbarkeit von abgeleitetem Gemeinschaftsrecht, (...), nicht mehr ausüben und dieses Recht mithin nicht mehr am Maßstab der Grundrechte des Grundgesetzes überprüfen.“, p.387.

⁵³ BVerfG, „Alcan“-Decision from 17.2.2000, 2 BvR 1210/98 (EuGRZ 2000, 175 ff.): “Es ist nicht erkennbar, dass durch diese Vorabentscheidung der vom Grundgesetz als unabdingbar gebotene Grundrechtsschutz generell in Frage gestellt wurde.“.

⁵⁴ BVerfG, “Bananenmarktordnung”-Decision from 7.6.2000, 2 BvL 1/97 (NJW 2000, 3124 ff).

⁵⁵ See the original text of the decision: „Vorlagen zu Regelungen des sekundären europäischen

Gemeinschaftsrechts zur verfassungsrechtlichen Prüfung durch das Bundesverfassungsgericht entsprechend Art. 100 Abs. 1 GG sind nur dann zulässig, wenn ihre Begründung im Einzelnen darlegt, dass die gegenwärtige Rechtsentwicklung zum Grundrechtsschutz im europäischen Gemeinschaftsrecht, insbesondere die Rechtsprechung des Europäischen Gerichtshofs, den jeweils als unabdingbar gebotenen Grundrechtsschutz generell nicht gewährleistet.“.

⁵⁶ See also Nicolaysen/Nowak, “Teilrückzug des BVerfG aus der Kontrolle der Rechtmäßigkeit gemeinschaftlicher Rechtsakte: Neuere Entwicklungen und Perspektiven“, NJW, 17, 2001, p. 1233-1304.

⁵⁷ BVerfG, „Maastricht“-Decision from 12.10.1993 (BVerfGE 89, 155 ff.).

⁵⁸ ECJ, C-6/64, Costa/E.N.E.L., 1964, I-00585, point 3. 15

⁵⁹ BVerfG, „Maastricht“-Decision from 12.10.1993 (BVerfGE 89, 155 ff.).

⁶⁰ See the original text of the decision: “prüft das BVerfG, ob Rechtsakte der europäischen Einrichtungen und Organe sich in den Grenzen der ihnen eingeräumten Hoheitsrechte halten oder aus ihnen ausbrechen.”, p.187- 188.

⁶¹ See the original text of the decision: “Das BVerfG gewährleistet durch seine Zuständigkeit, dass ein wirksamer Schutz der Grundrechte für die Einwohner Deutschlands auch gegenüber der Hoheitsgewalt der Gemeinschaften generell sicherstellt und dieser dem vom Grundgesetz als unabdingbar gebotenen Grundrechtschutz im Wesentlichen gleich zu achten ist.”, p.174.

⁶² BVerfG, “Bananenmarktordnung”-Decision from 7.6.2000, 2 BvL 1/97 (NJW 2000, 3124 ff).

⁶³ Nicolaysen/Nowak (2001), p.1235.

⁶⁴ See Scheeck, Laurent, “The Relationship between the European Courts and Integration through Human Rights”, ZaöRV 65 (2005), p.849.

⁶⁵ Schütz, Bruha, König, Casebook Europarecht, Verlag C.H. Beck München 2004, p.101.

⁶⁶ BVerfG, „Maastricht“-Decision from 12.10.1993 (BVerfGE 89, 155 ff.).

⁶⁷ Similar Nicolaysen/Nowak (2001): „Verwerfungsbefugnis“, p.1234.

⁶⁸ Bergmann (2004), p.627.