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.
Table of Contents
1. Introduction
2. The existence of a conflict between the two legal orders
2.1 Different definitions of the doctrine of supremacy
2.2 Judicial control
3. Analysis
4. Conclusion
5. Bibliography
Research Objectives and Themes
The paper examines the constitutional relationship between the German legal order and the European Union legal order, specifically addressing the conflict arising from competing claims of supremacy and the resulting judicial limits imposed by the German Federal Constitutional Court (Bundesverfassungsgericht).
- Analysis of the doctrine of supremacy as defined by the European Court of Justice versus the German national perspective.
- Evaluation of the Bundesverfassungsgericht’s landmark jurisprudence, including the Maastricht, Lisbon, and Honeywell rulings.
- Examination of the concepts of ultra vires review, militant democracy, and the eternity clause within German constitutional law.
- Assessment of whether the detected conflict between legal orders is necessary to maintain a balanced, pluralistic constitutional framework.
Excerpt from the Book
2. The existence of a conflict between the two legal orders
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.
2.1 Different definitions of the doctrine of supremacy
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.
Summary of Chapters
1. Introduction: This chapter outlines the emergence of the doctrine of supremacy in EU law and introduces the central conflict between the European and German legal orders, establishing the paper's aim to analyze the limits imposed by the Bundesverfassungsgericht.
2. The existence of a conflict between the two legal orders: This section discusses the overlapping boundaries between legal systems, the diverging definitions of supremacy, and the role of the German Federal Constitutional Court in exercising judicial control through concepts like ultra vires review.
3. Analysis: This chapter examines the necessity of the identified conflict, arguing that it serves as a mechanism to maintain a balanced and pluralistic legal structure while respecting fundamental rights and constitutional identity.
4. Conclusion: This chapter summarizes the findings, asserting that the conflict is both necessary and manageable, and highlights the broader relevance of the German approach for other European legal systems.
5. Bibliography: This section provides a comprehensive list of primary legislative sources, case law, books, and articles used throughout the research.
Keywords
European Union law, German Law, Bundesverfassungsgericht, doctrine of supremacy, conflict of laws, constitutional identity, ultra vires review, militant democracy, eternity clause, legal pluralism, Maastricht Urteil, Lisbon Urteil, Honeywell case, acquis communautaire, judicial control.
Frequently Asked Questions
What is the core subject of this paper?
The paper focuses on the constitutional conflict between the European Union's doctrine of supremacy and the German legal order as interpreted by the Federal Constitutional Court.
What are the central themes discussed?
The main themes include judicial review, constitutional identity, the principle of conferral, and the relationship between supranational EU law and domestic national law.
What is the primary objective of this study?
The objective is to argue that the conflict between the EU and German legal orders is not purely detrimental but creates a necessary balance that protects constitutional integrity.
Which scientific methodology is applied?
The paper employs a doctrinal research methodology, focusing on the analysis of primary sources such as case law, treaties, and relevant secondary legal literature.
What does the main body cover?
The main body analyzes the emergence of supremacy in EU case law, the restrictive stance taken by the Bundesverfassungsgericht in landmark rulings, and the theoretical justifications for maintaining this conflict.
Which keywords define this work?
Key terms include supremacy, Bundesverfassungsgericht, constitutional identity, ultra vires, legal pluralism, and European Union law.
How does the Honeywell case change the approach to supremacy?
The Honeywell case introduced a more nuanced, cooperative narrative, moving away from a rigid conflict toward a "multilevel cooperation" model while still maintaining limits on EU authority.
What is the role of the "eternity clause" in this legal debate?
The eternity clause serves as a constitutional safeguard that takes precedence over EU law, allowing the German court to perform identity reviews to protect core democratic values.
Does the paper suggest that the supremacy of EU law should be ignored?
No, the paper suggests that while the German court rejects absolute supremacy, it operates within a framework that requires adherence to EU law unless specific constitutional limits—such as fundamental rights or the principle of conferral—are clearly violated.
- Arbeit zitieren
- Alina Pricopi (Autor:in), 2017, German and European Union law as diverging legal orders, München, GRIN Verlag, https://www.grin.com/document/354042
