Table of Contents
1.3 Research problem
3 National constitutional law and EU law in defence policy
3.1 EU law, national constitutional law and the hierarchy of norms
4 The limits of European integration in defence matters
5 Hard limits or flexible provisions?
5.1 Constitutional Amendments
5.2 Differentiated integration
Table of Abbreviations
Abbildung in dieser Leseprobe nicht enthalten
This research undertakes a comparative analysis of the constitutional limitations and freedoms of France and Germany in regard to the establishment of the European Security and Defence Union. Integration in a sensitivepolicy-field will certainly lead topolitical debates, but where are the limits of national constitutions to this process? Which constitutional legal conditions are imposed when the conferral of substantive competences that touch the structural sovereignty of a state to the Union is required? What are the differences and similarities in the national constitutions of Germany and France for the conferral of powers to the Union? Allowing to explore these and other questions, the constitutional law is analysed and in a subsequent discussion, the findings of the analysis is assessed to identify provisions restricting or facilitating further integration. These crucial provisions are evaluated and apotentialpathfor overcoming the restricting laws is deduced.
France and Germany have different constitutional provisions and requirements, which allow for the establishment of a common European Security and Defence Union. Both constitutions also set high hurdlesfor the conferral ofsovereignpowers to the Union and limit the abilities ofa common Defence policy. Seen against this background, the conclusion of international agreements appears to be first steps ofan incremental approach to reach a common policy.
The most promising avenue for future research could be the employment of comparative legal research methodology applied to multiple legislations in order to check for their mutual compatibility in certain policy areas. This approach allowsfor the identification oflikely expectations of future development in thispolicy area.
The European Union is based on the cooperation of its Member States on inter-governmental and supranational levels alike. Allowing for further integration, the Treaties provide for the conferral of sovereign powers from the Member States to the Union. This process of European integration leads to an ever-closer Union which may contribute to increased efficiency and prosperity for its Member States1. But as national constitutions may not allow for the conferral of powers in all policy-areas to an equal extent, a certain degree of constriction may be expectable. In this contribution the national constitutions of Germany and France will be analysed in an attempt to identify constitutional limitations that may restrict the process of integration in the area of European defence and security policy. The provisions allowing for the conferral and retention of powers are evaluated in order to recognise limits to integration the policy area of security and defence policy. The analysis of this process is of particular importance when a sensitive policy area is concerned. This may have wide-rangingjudicial implications and may potentially be of importance regarding the relationship between national constitutional law and EU law. The currently arising issue of the creation of a European Security and Defence Union inevitably will touch the outer limits of the prior establishedjudgements and the principle of conferral to the Union. This master's thesis aims to answer the research question: Which conditions to the conferral of substantive competences touching the structural sovereignty of a state to the Union are imposed by Germany's and France's constitutions?
First, a brief historical background is presented discussing important developments, followed by a discussion of political developments in this area. Second, the research design is presented which leads to the presentation of the methodological approach of this contribution. Third, the relationship of national constitutional law and EU law generally and in security and defence matters particularly is being examined. Based on the prior sections, the national constitutional provisions, EU law and international law provisions will be analysed for their limiting implications in regard to the research question. This contribution is concluded in the last section by summarising the findings and setting these into the broader context with scientific literature and case law.
1.1 Case selection
This contribution is focussed on the comparative evaluation of France's and Germany's constitutional provisions. These two particular countries have been selected because of their influential status within Union and their openly-stated intentions to advance cooperation in military and security policy-areas2. The development of the European Security and Defence Union as well as the recent election of the former German minister of defence as president of the European Commission underlines the timeliness of the issue. Both countries have a shared history which has developed into a significantly different approach to military questions and defence issues3. Whereas the Germans after World War II have been increasingly restrictive with the development and financing of military and security assets, the French have maintained a high level of engagement and investment4.
From the legal perspective, Germany has a dualist legal system which requires the transposition of international law into domestic law. The BVerfG historically has been hesitant to accept the absolute primacy of EU law over its domestic legal-hegemonial position. Only 23 years after the establishment of the principle of EU law primacy in Costa/ ENEL in 1964, the German constitutional court formally recognised it in its famous Solange rulings5. The BVerfG is an active court which understands its own position in the hierarchy of the European judicial system seriously. The German court aims to ensure that the constitutional identity of the German constitution is maintained and is hesitant to automatically give full precedence to EU law6. In 2009, the BVerfG ruled in its Lisbon judgement that national sovereignty in key political areas must be maintained and the BVerfG maintained the right to control the Union's institutions including the ECJ7. In 2014 the BVerfG made its first preliminary reference to the ECJ in the Gauweiler case concerning banking law and outright monetary transactions8.
France has a monist legal system which gives precedence to international law over domestic law. Since the doctrine of direct effect of EU law creates a special legal arrangement, legal problems are suspected to arise when further integration is envisaged. The Conseil Constitutionnel has undergone a development from a more hesitant court not unlike the German BVerfG to be a very euro-friendly court today9. Structurally, the French judicial system is not structured by a single hierarchy but consists of multiple highest courts. The Cour de Cassation is the highest court for the civil and criminal courts and the Conseil d'Etat the highest court for administrative courts. The Conseil Constitutionnel is positioned de jure equal to the other highest courts but can de facto be considered to fulfil the functions of a supreme court10. Both Germany and France refer to the EU in their constitutions but do not accept automatic primacy of EU law over their constitutions. The established case-law of the highest national courts in conjunction with the constitutional provisions allow for a profound assessment of the status quo. The recent developments towards the integration in security and defence matters raise questions of constitutional compatibility between the two countries and with EU law provisions. To provide for a foundation of the subsequent analysis, the historical development will briefly be introduced in the following section.
The European Integration in CSDP matters has been seen as one of the most challenging integration efforts of the Union11. To evaluate the legal arrangement and to answer the research question, the legal-historic background is important. This allows to understand how the legal provisions evaluated came about and to develop an idea how the law is likely to develop in the future. Germany and France have a traditionally dissimilar approach to military and defence policy which is rooted in historical developments and the resulting public perception of political power. General de Gaulle was perceived powerful because of him being a general which the French people approved and elected as a political leader12. Conversely, in Germany no military has ever held any important political office after World WarII13.
In the post-war Europe, multiple initiatives attempted to advance the integration of European defence. Mainly aiming to protect the Union against a potentially soviet aggression and secondly to prevent another emergence of a German military threat. The Western Union (WU) was formed by France, the United Kingdom and the BENELUX-countries with the aim to collaborate in the area of defence and political, cultural and economic issues and has acted as a precursor of NATO (1949) and the EU’s CSDP. The Western European Union (WEU) succeeded the WU in 1954, which facilitated further cooperation between the European countries and was based on the modified Brussels treaty of 17 March 1948 which included Italy and Germany14. In 1970, the European Communities developed the first foreign policy coordination under the European Political Cooperation (EPC), which later was replaced by the Maastricht Treaty. The creation of the second pillar within the Treaty framework of the Union in 1993 emphasised the integration of CFSP in the Unions’ legal structure. Following this Treaty, NATO agreed in 1996 to the development of the European Security and Defence Identity (ESDI) of the WEU15. The St. Malo declaration of 1998 landmarked the willingness towards further integration in CFSP matters, as the UK agreed to provide the EU with more autonomous defence provisions and competences, which allowed the transformation of the ESDI to the European Security and Defence Policy (ESDP) in 199916. Between 1999 and the Treaty of Lisbon, the EU initiated first CSDP missions and developed the European Security Strategy containing common objectives and aims. The 2009 Lisbon Treaty established the EEAS, introduced the mutual defence clause and paved the way for PESCO. The WEU’s competencies and institutions have been gradually transferred to the EU, expanding its CSDP capabilities which made its existence redundant, leading to its termination and dissolving after the entry onto force of the Treaty of Lisbon which included a solidarity clause which was based on the WEU’s mutual defence clause17.
In 2016, following the Russian annexation of the Crimea peninsula in Ukraine, CSDP matters gained new prominence in European politics and in the public perception18. The Union’s new security strategy has been adopted to improve the ability to respond to similar crises. The potential implications of the UK withdrawing from the Union, together with the pronounced pro-European public and independence referenda of Scotland, new borders can emerge that require adaptation of CSDP and CFSP laws. The most potent actor within NATO, the United States of America, have further pronounced the importance of CSDP strategies and laws, since further uncertainty on the international stage is created with rapid development-speed. Based on Art. 42 TEU, Art. 46 TEU and Protocol 10 to the TEU, the Permanent Structured Cooperation (PESCO) is an integral part of the CSDP where 25 Member States’ national armed forces pursue further structural integration which was initiated in 2017. Denmark and Malta opted out in conformity with Art. 46 para. 1 TEU and the UK is in the process of withdrawal from the Union following Art. 50 TEU. Projects under PESCO will be initiated under the newly established European Defence Fund equipped with an approximated capacity of €13 billion19.
The research interest of this masters’ thesis is based on the assumption that both Member States, France and Germany, do possess sufficient political will to further integrate their policies in CSDP matters. Following up to the Elysee-Treaty of 1963, the conclusion of the Aachen Treaty on 22 January 2019 between the Federal Chancellor Angela Merkel and the French Republic’s President Emmanuel Macron signalled close cooperation and bilateral approach to European policy (Art. 1 Aachen Treaty). The Treaty aims to strengthen the cultural diversity (Art. 9) as well as the alignment of security interests of the two neighbouring countries (Artt. 3 to 8). Furthermore, the Treaty aims to further integrate cooperation in defence politics (Artt. 4 and 5), including the mutual assistance in situations of crisis (Art. 7). Therefore, the assumption is justified that Germany and France are willing to further European Integration in security and defence matters following an inter-governmental and bilateral approach to take the lead for the establishment of a supranational integration on Union-level. Academic contributions have identified Germany and France to be spearheading a European Security and Defence Union20. In the speeches and public communications relating to the bilateral and inter-governmental advances, the European perspective and the aim to integrate security and defence matters on the European level is formulated21.
1.3 Research problem
Reaching the Union's aims of peace, security and prosperity, may require the establishment of a European Security and Defence Union must be done under EU law resulting from the requirements of Artt. 24 and 42 TEU. In light of the historical and recent developments in European integration, the question urges of where the limits of this process may be. Legal restrictions may arise from multiple sources and dimensions and national constitutions are just one of those. However, the national constitutions shape the political will and a Member States' motivation to further integrate and confer more powers to the Union. The relationship between national constitutional law and EU law has developed over time and will be of great importance for further European integration efforts. Looking at national constitutional provisions in a particular policy-area, namely defence and security policy in order to identify restricting domestic provisions and how these interrelate with EU law is the aim of this master's thesis. I will attempt to identify restrictive and allowing provisions which may enable France and Germany to further integrate in this policy area and how potentially limiting national constitutional provisions can be circumvented, set aside or adapted to allow for the Member States' intentions. The intergovernmentalist approach may pave the path to initiate and facilitate for a later supranationalist solution on the European level.
It is necessary, in order to achieve the desired outcome, to simultaneously approach the integration of security and defence policies on intergovernmentalist as well as on supranationalist levels. This procedure is required because neither of the two levels individually employed is likely to turn out successful. Following a purely intergovernmentalist approach would result in bilateral and/or multilateral agreements which may not interfere with areas of the Union’s exclusive competences. However, these contractual relationships between the Member States may serve as first steps of an incrementalistic process of integration. This must be complemented with a supranationalist approach on EU-level, as many areas fall within the exclusive or shared competences of the Union and the integration process should not be limited to two Member States. Besides setting up financing mechanisms such as PESCO22, the EU may conclude agreements with third countries, which is beneficial for a uniform representation in defence and security matters23. This situation leads up to the research problem, since national constitutional law and EU law is concerned and although the hierarchy of norms requires precedence ofEU law, some constitutional principles cannot easily be set aside (e.g. Artt. 1 to 20 GG). Therefore, the integration of policies on the European level has a close connection to the national constitutional provisions and the latter may be imposing restrictions to the former.
2 Research design
In order to approach the prior presented research problem, the research question is an exploratory descriptive research question which attempts to understand a new development24. Embedded in the empirical analysis of the relevant legal provisions (see section 4), the research question aims to understand where the limits of conferral of national powers to the Union in a certain policy area are to be found. Analysing the conditions to the conferral of substantive competences by national constitutions, reservations, restrictions and requirements of procedural or substantive nature are explored and analysed in my master’s thesis. In this context, procedural conditions may include requirements that have to be met before powers can be conferred, such as voting thresholds. Substantive conditions may encompass the exclusion or inclusion of certain aspects of a policy area. Some provisions may be conditional to the extent of the conferral of powers. These may be either explicitly or implicitly codified in the national constitution, whereas the implicit conditions are more difficult to assess. In order to identify implicit legal conditions on the conferral of powers national highest court decisions are taken into account in my master’s thesis.
The Union's constitutional principle of conferral of powers is defined by Art. 5 TEU. National constitutional provisions may be conflicting with the principle, requiring compatibility assessments by the highest national court25. These provisions could be particular articles referring to strict limitations or procedural requirements which obstruct the effective implementation of further integration, such as high parliamentary voting requirements or procedural requirements that necessitate prior authorisation by a national competent institution. Contrasting, allowing provisions or those facilitating further integration are those which leave room for manoeuvre and implicitly or expressly allow for advancing further integration as well as setting adequate requirements which are not restrictive26. Provisions of international agreements or of the European Treaties that directly or indirectly, actually or potentially affect the structural sovereignty of the Member States are most likely to be conflicting with national constitutional provisions and requirements. The structural sovereignty referred to means provisions which are particularly safeguarded by the national constitution, such as certain economic matters (e.g. Economic and Monetary Union), Common Foreign Security Policy and Common Security and Defence Policy. These requirements and restrictions taken into account for my master’s thesis are imposed by Germany's and France's constitutions. In addition to the German Grundgesetz and the Constitution Franqaise, the European Union’s Treaties are closely analysed, since these are of constitutional rank for the Union. In addition to the constitutional arrangements, bilateral agreements between Germany and France are analysed to understand the intentions and developments in this field.
This contribution will evaluate the constitutional provisions of France and Germany which may act restricting or facilitating the process of European Integration in the area of defence. The comparative analysis of the constitutional provisions allows for a direct evaluation of the law codified and its implications on the respective countries’ ability to pursue further integration in security and defence matters. Undertaking an analysis of two Member States’ constitutional provisions with regard to the Treaties of the European Union in order to identify limitations for the intended creation of the European Security and Defence Union will provide for sufficient empirical evidence to answer the research question. This research is structured to contain descriptive and evaluative aspects. In the first section, the legal provisions of the two Member State’s constitutions are analysed. This descriptive approach is complemented by the evaluation of scientific literature, which allows for a better understanding of the legal arrangement. In addition to scientific literature, decisions of the national constitutional courts are important for my research. Using these decisions, the correct reading of the constitutional provisions with their explicit and implicit aspects is ensured and thus increases the analysis’ validity. The German constitutional court has issued multiple landmark-cases relating to the issues of supremacy of EU law and the court’s retainment of scrutiny over EU law which are of importance in order to discuss future developments in European security and defence integration. The French constitutional courts have created fewer decisions, but the issue of supremacy of EU law has been thoroughly analysed and allows for a clear understanding of the relationship between EU law and national law in France is structured. Currently, France and Germany are concluding bilateral international agreements (e.g. Aachen treaty) whilst advancing European defence and security cooperation simultaneously (e.g. PESCO). Therefore, decisions by the national constitutional courts relating to international law are taken into account as well. The selection of highest-court decisions is predetermined on their availability and subject matter as there only are few that touch these issues in either country. Generally, the German constitutional court is more active in this regard than the French court system and has developed more significant case-law.
1 von Bogdandy, A. (2016). European Law Beyond ‘Ever Closer Union’ Repositioning the Concept, its Thrust and the ECJ's Comparative Methodology, European Law Journal, p. 528.
2 Joint statement by the German and French Foreign Ministers of 28 June 2016.
3 Gordon, P. H. (2018). France, Germany, and the Western Alliance.
4 OECD (2013), "Graph 2.7 - Military expenditure", in Trends Shaping Education 2013, OECD Publishing, Paris.
5 German Federal Constitutional Court, BVerfGE "Solange I", Beschluss des Zweiten Senats vom 07. Juni 2000 - 2 BvL 1/97 -, Rn. (1-69); and: German Federal Constitutional Court, BVerfGE „Solange II" 1987 Re Wuensche Handelsgesellschaft, (22 October 1986) BVerfGE,  3 CMLR 225.
6 German Federal Constitutional Court, BVerfGE „Solange II" 1987 Re Wuensche Handelsgesellschaft, (22 October 1986) BVerfGE,  3 CMLR225.
7 German Federal Constitutional Court, BVerfGE, Judgment of the Second Senate of 30 June 2009 - 2 BvE 2/08.
8 European Court of Justice Case C-62/14, Gauweiler v Deutscher Bundestag 2015.
9 Ziller, J. (2015). European Union Law in the Jurisprudence ofFrench Supreme Courts: Europe-Friendliness with a French Touch. European Public Law, pp. 765-780.
10 Waline, M. (1963). The Constitutional Council ofthe French Republic, Am. J. Comp. L., pp. 483-493.
11 Howorth, J. (2000). European integration and defence: the ultimate challenge? (Vol. 43), Institute for Security Studies, Western European Union.
12 Gaffney, J. (2010). Political Leadership in France: From Charles de Gaulle to Nicolas Sarkozy. Springer.
13 Loch, T. (2017). Dieter E. Kilian, Fuhrungseliten. Generale und Admirale der Bundeswehr 1955-2015. Politische und Militarische Fuhrung, Bielefeld: Osning 2014, Militaergeschichtliche Zeitschrift, pp. 368-370.
14 WEU/SG (2003). 81 revision 5, (2009): What is WEU today?.
15 Reichard, M. (2016). The EU-NATO relationship: a legal and political perspective. Routledge.
16 Ricketts, P. (2017). The EU and Defence: The Legacy of Saint-Malo. The RUSI Journal, pp. 30-38.
17 Statement of the Presidency of the Permanent Council of the WEU on behalf of the High Contracting Parties to the Modified Brussels Treaty - Belgium, France, Germany, Greece, Italy, Luxembourg, The Netherlands, Portugal, Spain andtheUnitedKingdom, 31. March2010.
18 Zarembo, K. (2017). Perceptions of CSDP effectiveness in Ukraine: a host state perspective. European security, pp. 190
19 European Commission, IP/18/4121, Press release 13. June 2018: EU budget: Stepping up the EU's role as a security and defence provider.
20 Koenig, N., & Walter-Franke, M. (2017). France and Germany: Spearheading a European security and defence union?, Policy Paper, p.19.
21 Ibid., p. 3.
22 Fiott, D. (2018). EU defence capability development. Plans priorities, projects. European Union Institute fur Security studies.
23 Art.218 TFEU and Artt. 23 to 46 TEU.
24 Leeuw, F. L., & Schmeets, H. (2016). Empirical legal research: A guidance book for lawyers, legislators and regulators. Edward Elgar Publishing, p. 44.
25 Tomuschat, C. (2009). The ruling of the German Constitutional Court on the Treaty ofLisbon. German Law Journal, p. 1259.
26 Heringa, A.W., & Kiiver, P. (2016). Constitutions compared. An introduction to comparative constitutional law. Ius Commune Europaeum, (104), p.19.