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Scientific Essay, 2017
2. The existence of a conflict between the two legal orders
2.1 Different definitions of the doctrine of supremacy
2.2 Judicial control
The German law and European Union law as diverging legal orders – Close analysis of the German legal order and the European legal order as regards conflict and its necessity
Within the European Union, the Court of Justice (hereinafter the Court) developed through its case law the doctrine of supremacy. The outcome has been the creation of a new legal order which now exists independently of the separate legal orders of the Member States. Since both the legal order of the European Union and the one of the Federal Republic of Germany assume the role of higher law, as such there is a conflict between the two. The claim of the current paper is that such a conflict creates a necessary balance and that by its existence it does not erode the acquis communautaire of the European Union. Moreover, the present paper concurs with the German approach as to rejecting the supremacy of EU law over German national law.
In order to support the above-mentioned claim, the aim of the paper will consist of the following steps. First, the conflict between the two legal orders will be shortly illustrated. Second, the reasoning of the Supreme Constitutional German Court or the Bundesverfassungsgericht (hereinafter the Bundesverfassungsgericht) will be presented with the help of landmark national cases and also the principles of militant democracy and eternity clause. Third, an analysis of whether the conflict is necessary and whether it creates a balance within a pluralist dimension will be offered.
The reason why this topic has been chosen is to show how two legal orders coexist while having created a conflict through the imposition of certain limits. The limits were imposed through the national case law of the Bundesverfassungsgericht.
The methodology employed by the paper will be the doctrinal research. In the selection of appropriate sources, the focus will be on primary and secondary sources of law e.g. case law of the Court, national case law of the Bundesverfassungsgericht, books, articles and papers that will illustrate the aim of the paper.
The boundaries between the two legal orders are overlapping, since the Court stated that the doctrine of supremacy applies to constitutional domestic law. Most of the constitutional courts of the Member States of the European Union have not been readily convinced of such a claim. As a result, the position of the Bundesverfassungsgericht has been to reject such supremacy and thus a conflict was created between the two legal orders.
It has become apparent that the definition of the doctrine of supremacy employed by the Court in its case law differs from the one employed at national level by the Bundesverfassungsgericht. As a result, a number of judgments such as the Maastricht Urteil, the Lisbon Urteil and the Honeywell case will be shortly analyzed in order to identify the limits imposed by the Bundesverfassungsgericht and as such to formulate a new definition of supremacy.
As a general remark, the Bundesverfassungsgericht represents the authority which is empowered to conclude judicial review within Germany. Its judicial review had been heaviliy based upon the principle of militant democracy and the eternity clause enshrined in the Constitution. These two elements have contributed to the decision taken by the Bundesverfassungsgericht to reject the supremacy of the European Court.
In the Maastricht Urteil, an element of judicial control is the concept of ultra vires, in relation to which the Bundesverfassungsgericht had first claimed that the ultimate jurisdiction ‘to see whether (the European institutions) remain within the limits of the sovereign rights conferred on them or transgress them’.
As a result, the Bundesverfassungsgericht does not accept supremacy and adopts the approach that, in cases of conflict, its interpretation of the principle of conferral will prevail over the competence given to the Court. This position is reaffirmed in the Lisbon Urteil judgment and named as ultra vires review.
Despite the above, the Lisbon Urteil judgment has been followed by a ‘more balanced analysis.’ In the Honeywell case, the German Federal Court held that the Mangold decision, issued by the Court, was not an ultra vires act within the meaning of the Maastricht and Lisbon Urteil decisions. The case represents a stepping stone also for the fact that the Bundesverfassungsgericht explicitly states that the Court has the sole function ‘to interpret and apply the Treaties, and in doing so to safeguard the unity and coherence of Union law.’
In contrast to the earlier judgment, the Honeywell case contains a supportive narrative in which specific criteria for conducting an ultra vires review are laid down. Such an approach replaces the earlier one expressed in the Lisbon Urteil judgment, since it contains a cooperation element named in case law as the ‘multilevel cooperation of the European Constitutional Court.’ The element involves cooperation with the Court i.e. referral of issues and also restricting the previous standard to ‘sufficiently qualified.’ This means that the action taken by the European Union must be in manifest violation of its competences and also that the act is significant “in the structure of competences between the Member States and the Union with regard to the principle of conferral and to the binding nature of the statute under the rule of law”.
The current position of the Bundesverfassungsgericht, as outlined in the above sections, is a clear rejection of the claim of supremacy of the Court and an imposition of limits which relate to fundamental rights, competence, and constitutional identity.
It is already settled that the eternity clause guides the scope of the identity review and that it takes precedence over the supremacy of European Union law, if the conditions laid down in the Honeywell case are met. There are four cumulative requirements: when the breach is sufficiently qualified, when it has led to a “structurally significant shift” and when there has been a preliminary reference ruling made to the Court by the German Federal Court.
From the above, it is apparent that the Bundesverfassungsgericht has departed from the doctrine of supremacy established by the Court and has chosen to accept a different version of the doctrine mentioned. This is important because it represents a possible conflict between the two legal orders.
However, such an apparent conflict is necessary due to many considerations. The necessary standard as employed by the current paper is to be considered as is “a standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.”
First, looking at the opinion of many legal pluralists, they focus on conflict because they adopt a normative commitment against the establishment of a hierarchy of legal institutions and norms. As a result, such a non-hierarchical position is assumed instead. It becomes apparent the existence of a conflict between legal orders prevents the more complicated issues of hierarchical structures.
 Case C-6/64 Flaminio Costa v. E.N.E.L.  ECR 585; Case 106/77 Amministazione delle Finanze dello Stato v. Simmenthal SpA  ECR 629; Case C-26/62 Van Gend en Loos  ECR1.
 N MacCormick, Questioning sovereignty (Oxford 1999).
 J B M Vranken, ‘Methodology of legal doctrinal research’ in M A A Hoecke (ed.), Methodologies of legal research. Which kind of method for what kind of discipline. (Oxford Hart Publishing 2010) 111-121
 BVerfGE 37, 271 2 BvL 52/71 Solange I 1974; C-11/ 70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel  ECR 01125; D T Moorhead, The Legal Order of the European Union:The Constitutional Role of the Court of Justice (Routledge 2016)
 N MacCormick, Questioning sovereignty (Oxford 1999); K H Tamara, ‘Enforcing European Community Law in the Member States’, in P Barbour (ed.) The European Union Handbook (Fitzroy Dearborn Publisher, 1996) 229.
 30 BVerfGE 1 (24) (1970); 94 BVerfGE 12 (33-34) (1996); 109 BVerfGE 279 (310) (2004); BVerfG 30 (2009) 2 BvE 2/08, para 403.
 C Baker-Beall, C Heath-Kelly and L Jarvis (eds), Counter-Radicalisation: Critical Perspectives ( Routledge, New York 2015) 90-91; M Thiel (ed), The 'Militant Democracy' Principle in Modern Democracies (Ashgate Publishing 2016); M Klamt, ‘Militant Democracy and the Democratic Dilemma: Different Ways of Protecting Democratic Constitutions’, in F Bruinsma and D Nelken (eds), Explorations in Legal Cultures (Recht der Werkelijkheid 28:3) 154.
 The Basic Law (1949) amended in 2012 Article 79 para 3; U K Preuss, ‘The Implications of “Eternity Clauses”: The German Experience’ (2011) Israel Law Review Vol. 44, 429; D Halberstam and C Mollers, ‘The German Constitutional Court says Ja Zu Deutschland’(2009) 10 German L.J. 1241, 1256.
 BVerfGE 37, 271 2 BvL 52/71 Solange I 1974 para 150,233,239.
 BVerfGE 89, 155 (1993) Az: 2 BvR 2134, 2159/92 Maastricht Urteil para 49.
 BVerfGE, 2 BvE 123,267, 2 BvE 2/08 (2009) Lissabon Urteil, para 240.
 D Thym, ‘From Ultra-Vires-Control to Constitutional-Identity-Review: The Lisbon Judgment of the German Constitutional Court’ in J M Beneyto and I Pernice, Europe ’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts European Constitutional Law Network-Series Vol. 8, 37 <http://www.ecln.net/tl_files/ECLN/BeneytoPernice_ECLN_6724-6.pdf> accessed at 10.11.2016.
 BVerfGE, 2 BvR 2661/06 (2010) Honeywell Urteil.
 C-144/04 Mangold  ECR I-9981.
 Consolidated Version of the Treaty on European Union  OJ C115/13 Article 2; Consolidated Version of the Treaty on the Functioning of the European Union  OJ C326/01 Article 267.
 A Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund‘ (2010) 6 EuConst 175-98.
 C-472/00 Commission of the European Communities v. Fresh Marine Company A/S.  ECR I-7541 para 26-27.
 BVerfGE, 2 BvE 123,267, 2 BvE 2/08 (2009) Lissabon Urteil.
 BVerfGE Re Wünsche Handelsgesellschaft (1986) Solange II.
 BVerfGE 89, 155 (1993) Az: 2 BvR 2134, 2159/92 Maastricht Urteil.
 BVerfGE, 2 BvR 2661/06 (2010) Honeywell Urteil para 60, 61, 66.
 N W Barber, The Constitutional State (OUP 2010) 171; D A Desierto, Necessity and National Emergency Clauses: Sovereignty in Modern Treaty Interpretation ( Nijhoff, Leiden 2012) 119.
 R Dworkin, Taking Rights Seriously, (Harvard University Press, Cambridge 1977) 22.
 Ehrlich 1913; Merry 2000; Likhovski 2009 and Tamanaha 2008.
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